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Lebere v. Trani

United States District Court, D. Colorado

November 28, 2016



          Marcia S. Krieger, Chief Judge

         THIS MATTER comes before the Court pursuant to the Applicant's Objection (# 168) to the Magistrates Judge's August 8, 2016 Recommendation (# 167) that the Applicant's Amended Application for Writ of Habeas Corpus brought Pursuant to 28 U.S.C. § 2254 (# 62) be denied.


         The Court exercises jurisdiction over this matter pursuant to 28 U.S.C. § 2254 and 28 U.S.C. § 1331.


         Early in the morning of October 16, 1998, Linda Richards was murdered. Her killer left her body in her minivan and set the minivan on fire. Passersby saw the fire and contacted the police. After an investigation, the police arrested the Applicant, Kent Eric LeBere, and he was charged with three alternative counts of first-degree murder and one count of second-degree arson in El Paso County, Colorado District Court case number 98CR4342.

         In August 1999, Mr. LeBere's case was tried to a jury. As part of the evidence presented, Ronnie Archuleta testified that while he and Mr. LeBere were incarcerated together, Mr. LeBere confessed to him. According to Mr. Archuleta, Mr. LeBere said that he met Ms. Richards at a bar, and he became intoxicated. He asked Ms. Richards for a ride home, but instead of going home, they drove to Cheyenne Canyon where he “fucked the bitch” without her consent and strangled her because she could identify him by the phoenix tattoo on his arm. Mr. Archuleta also testified that Mr. LeBere confessed to driving to the carwash and setting fire to the minivan to destroy any bodily fluids he may have left in the minivan.

         The jury convicted Mr. LeBere of second-degree murder, a lesser-included offense of first-degree murder, and second-degree arson. Mr. LeBere was sentenced to incarceration of 48 years for the murder conviction and 12 years for the arson conviction, to be served consecutively.

         Mr. LeBere appealed his conviction to the Colorado Court of Appeals. While the appeal was pending, Mr. Archuleta recanted his testimony. He said that Mr. LeBere never confessed to him, but instead that the lead detective in Mr. LeBere's case, Detective J.D. Walker, gave him information about the case for the purpose of fabricating his testimony about the confession.

         Mr. LeBere also challenged his conviction based on Mr. Archuleta's recantation in a motion for new trial. The Motion was denied by the trial court and the denial was affirmed on direct appeal. Then Mr. LeBere moved for post-conviction relief under Colorado Rule of Criminal Procedure 35(b). This request was denied by the trial court, and the denial was affirmed on direct appeal.

         On June 23, 2003, Mr. LeBere filed a pro se[2] application for a writ of habeas corpus under 28 U.S.C. § 2254. His case was stayed and later administratively closed while his state post-conviction motion was pending, but it was reopened on July 13, 2009. Mr. LeBere filed an amended application for writ of habeas corpus, alleging that the State of Colorado (“Colorado”) suppressed impeachment evidence that Detective Walker conspired with Mr. Archuleta to fabricate a false confession (“impeachment evidence”), and that such action violated Brady v. Maryland, 373 U.S. 83 (1963) (“Brady claim”). He also alleged that Colorado knowingly elicited Mr. Archuleta's perjured testimony during trial in violation of Napue v. Illinois, 360 U.S. 264 (1959) (“Napue claim”). Finally, he claimed that he was deprived of his right to counsel. This Court denied Mr. LeBere's Brady and Napue claims as procedurally barred and denied the right to counsel claim on its merits. Mr. Le Bere appealed. The Tenth Circuit found that the Brady and Napue claims were not procedurally barred and remanded for them to be determined on the merits.

         The Court referred this matter to the Magistrate Judge for a recommendation. On August 8, 2016, the Magistrate Judge issued the instant Recommendation (# 167) that the Amended Application be denied. Mr. LeBere filed a timely Objection (# 168) to the Recommendation. No response was filed to the Objection.


         A. Standard of Review

         When a magistrate judge issues a recommendation, the parties may file specific, written objections within fourteen days after being served with a copy of the recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district court reviews the portions of the recommendation to which timely and specific objections are made de novo. Fed.R.Civ.P. 72(b).

         Mr. LeBere brought his Amended Application under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by Colorado courts. Milton v. Miller, 744 F.3d 660, 668 (10th Cir. 2014). If a Colorado court adjudicated a claim on the merits, the Colorado court's decision is entitled to deference and can only be overturned under limited circumstances. See 28 U.S.C. § 2254(b) & Williams v. Taylor, 529 U.S. 420, 429 (2000). If the claim was not adjudicated on its merits and is not procedurally barred, a federal court reviews it de novo. Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004). Mr. LeBere and the Respondents agree that Mr. LeBere's claims should be reviewed de novo.[3]

         B. Mr. LeBere's Napue Claim

         Knowingly eliciting or failing to correct perjured testimony during trial violates due process. See Napue v. Ill., 360 U.S. 264, 269 (1959). To prevail on his Napue claim, Mr. LeBere must prove: “(1) a government witness committed perjury, (2) the prosecution knew the testimony to be false, and (3) the testimony was material.” U.S. v. Garcia, 793 F.3d 1194, 1207 (10th Cir. 2015). As to the second element, a law enforcement officer's knowledge that a witness has committed perjury is not imputed to prosecutors. Garcia, 793 F.3d at 1207-08 (citing Smith v. Sec'y of N.M. Dep't of Corrs., 50 F.3d 801 (10th Cir. 1995) (holding that a prosecutor's lack of actual knowledge of a witness' perjury precluded Smith's Napue claim)).

         Mr. LeBere cannot prove the second element of his Napue claim. In footnote 5 of his Memorandum in Support of Petitioner's Request to Grant Amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, he concedes that he does not have sufficient evidence to prove that the prosecutors in his case actually knew that Mr. Archuleta committed perjury during trial. Therefore, the Court denies Mr. LeBere's Napue claim.

         C. Mr. LeBere's Brady Claim

         Suppression of evidence favorable to an accused that is material to guilt or to punishment violates the accused's right to due process Brady v. Md., 373 U.S. 83, 87 (1963). Evidence favorable to an accused includes exculpatory and impeachment evidence. U.S. v. Bagley, 473 U.S. 667, 676 (1985). With a Brady claim, a law enforcement officer's knowledge of the existence of exculpatory or impeachment evidence is imputed to the prosecution. Smith, 50 F.3d at 831. Therefore, to establish a Brady claim, Mr. LeBere must prove: (1) The evidence at issue was favorable to him, either because it is exculpatory, or because it is impeaching; (2) that evidence was suppressed by Colorado, either willfully or inadvertently; and (3) prejudice resulted. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Prejudice satisfying the third element exists when the suppressed evidence is material. Douglas v. Workman, 560 F.3d 1156, 1173 (10th Cir. 2009) (quoting Banks v. Dretke, 540 U.S. 668, 691 (2004)). Generally, evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the trial result would have been different. A reasonable probability of a different trial result exists when the government's evidentiary suppression undermines confidence in the outcome of the trial. Kyles v. Whitley, 514 U.S. 419, 433 (1995).

         For purposes of analysis, the Court will assume that Colorado suppressed the impeachment evidence and that had such evidence not been suppressed it would have been used to impeach Mr. Archuleta's testimony. By its nature, impeachment evidence is not substantive evidence, but instead is material only to undermine the credibility of a witness' statements. U.S. v. Watson, 766 F.3d 1219, 1244 (10th Cir. 2014). Based on these assumptions, the Court asks two questions: 1) was the verdict dependent upon Mr. Archuleta's testimony, and 2) was the impeachment evidence necessary to raise doubt as to the veracity of Mr. Archuleta's testimony?

         1. Was the verdict dependent upon Mr. Archuleta's testimony?

         Having carefully reviewed the record, the Court is satisfied that the prosecution presented substantial, persuasive evidence, independent of Mr. Archuleta's testimony, from which a jury could have found beyond a reasonable doubt that Mr. LeBere was guilty of charges of second degree murder and arson. Its evidence included the following.

         Alfred Holzer, who worked at Crazy Mike's Bar on the night of the incident saw Ms. Richards enter the bar at about 8:00 p.m. She was alone until Mr. LeBere approached her, and the two started talking. By 11:30 p.m., when Mr. Holzer left, she and Mr. LeBere were sitting close together.

         Wendy Cobb who also worked at the bar testified that Mr. LeBere was at the bar before Ms. Richards arrived. Mr. LeBere approached Ms. Richards and invited her to play pool. Ms. Cobb testified that Ms. Richards and Mr. LeBere spoke with one another and drank together for the next several hours. As the night progressed, their interactions became more intimate. They sat close together, and Ms. Cobb made an Amaretto Sour drink for them, which they shared with two straws. Ms. Cobb asked Mr. LeBere if he was “going to get lucky” with Ms. Richards, and he responded that he and Ms. Richards talked about having a “one night stand” with each other but that Ms. Richards was engaged and did not believe in having one night stands. Ms. Cobb testified that as the night progressed, Mr. LeBere became increasingly intoxicated. She talked to him about it, and he told her not to worry because he was going to walk home. At about 12:30 a.m., as he was leaving, he told her that Ms. Richards agreed to give him a ride home, and Ms. Cobb saw Ms. Richards and Mr. LeBere leave the bar together.

         According to Ms. Cobb's testimony, the police called her the next day and showed her a picture of Ms. Richards. They told her Ms. Richards had been killed and asked if Ms. Richards had been with anyone at Crazy Mike's Bar. She described Mr. LeBere to them, drew a picture of him, and helped a police artist draw another sketch of him. The drawings portrayed Mr. LeBere as having dark hair that was parted in the middle and came to the middle of his face. ...

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