United States District Court, D. Colorado
ORDER DENYING APPLICATION FOR WRIT OF HABEAS
Richard P. Matsch, Senior Judge
Lydell Moore is serving a sentence of life imprisonment
without possibility of parole as a result of a jury verdict
finding him guilty of first degree murder in the stabbing
death of a woman in Pueblo County, Colorado. The conviction
and sentence in 1999 was affirmed on direct appeal by the
Colorado Court of Appeals on January 17, 2002. The Colorado
Supreme Court denied certiorari review on September
23, 2002. Moore filed a pro se motion for
post-conviction relief under Colo. Crim. P. 35(c) in October,
2002. The district court made no decision on that motion
despite repeated written requests in letters he sent to the
July, 2008, Moore filed a second Rule 35(c) motion, pro
se. The district court denied it as a successive motion.
On appeal the Colorado Court of Appeals affirmed that ruling
but remanded the case to the district court to consider the
merits of the 2002 motion.
the trial judge had retired, the motion was presented to
another district judge who entered an order denying relief on
October 28, 2011. Ex. F. There was no evidentiary hearing and
no review of transcripts of the trial.
bono counsel filed a motion to appeal that ruling out of
time under C.A.R. 26(b). No opposition was filed and the
motion was granted on June 24, 2013. Counsel raised the same
issues as the 2002 pro se motion claiming
ineffective assistance of trial counsel in violation of the
Sixth Amendment to the United States Constitution. Among them
was the claim that trial counsel failed to inform the court
that Moore physically assaulted his lawyer and called him a
racist, Moore being black and counsel white.
Colorado Court of Appeals affirmed the denial order in an
opinion announced on Mach 19, 2015. Ex. K. The Colorado
Supreme Court denied certiorari review on October
filed this application for a writ of habeas corpus on October
11, 2016. The respondents claim the filing is untimely,
asserting that the one-year limitation expired on December
12, 2012. That ignores the grant of untimely appeal by the
Colorado Court of Appeals. This is a case for application of
the doctrine of equitable tolling for several reasons,
particularly the failure of the district court to act on the
pro se motion for seven years. Counsel for the
Applicant has asked that this court recognize that Moore
suffered traumatic brain injury which has impaired his
cognitive capacity and that his pro se filings were
the work of fellow inmates.
application is accepted as a timely filing for review of the
March 19, 2015, order.
single claim for relief in this court is stated as follows:
Petitioner is entitled to a writ of habeas corpus because his
Sixth Amendment right to conflict-free counsel was violated,
where the trial court failed to hold an adequate inquiry into
the conflict of interest and the failure prejudiced
Petitioner's right to a fair trial.
district court analyzed this as a claim of ineffective
assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984) and held that Moore had
“presented no competent evidence that his
attorneys' representation fall outside the range of
professional conduct in criminal cases. Mr. Moore has also
failed to prove by a preponderance of the evidence how he was
prejudiced by the jury selection process.” Ex. F, p.
0000590. That refers to the failure to challenge a juror
whose mother had been stabbed to death which the court
considered to be trial strategy.
Court of Appeals affirmed that ruling on the prejudice prong
of the Strickland analysis. The appellate court
believed that ineffective assistance was the appropriate
question but did go on to consider the conflict claim under
Cuylor v. Sullivan, 446 U.S. 335 (1980).
that analysis the ruling was that the motion did not set
forth any facts to suggest an actual conflict of interest
between him and his trial counsel. The opinion includes a
recitation of the factual record relating to the duty to
inquire and right to new counsel. Ex. K, pp. 10 to 14.
applicant has given his own recitation of the factual record
but that has not shown such a difference as to warrant a
finding that the Colorado Court of Appeals had made an
unreasonable determination of the trial record. The argument
is that the Colorado Court of Appeals should have applied the
law in Wood v. Georgia,450 U.S. 261 (1981). In that
case the Supreme Court held that the trial court had a duty
to recognize the possibility of a disqualifying conflict of
interest when the defendant was represented by a lawyer
retained by his employer under circumstances suggesting that
the lawyer's primary interest was the preservation of the
employer's business. That was considered to be a question
of due process and the Court vacated the revocation of