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Gregg v. Raemisch

United States District Court, D. Colorado

January 17, 2018

WILLIAM ALLEN GREGG, Applicant,
v.
RICK RAEMISCH, Executive Director of CDOC, and ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

          ORDER DENYING MOTION TO RULE ON CLAIM

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

         The matter is before the Court on Respondents' Motion to Vacate Evidentiary Hearing and Rule on Claim, filed on May 30, 2017. (Doc. # 34.) Applicant William Allen Gregg, through counsel, filed a Response to the Motion (Doc. # 40) and the Respondents filed a Reply (Doc. # 41). On August 14, 2017, the Court granted the Motion in part, as to the request to vacate the evidentiary hearing. (Doc. # 44). As to Respondents' request to rule on the claim, the Court denies the Motion for the reasons discussed below.

         I. BACKGROUND

         On December 19, 2016, the Court issued an order dismissing all of Mr. Gregg's § 2254 habeas claims, except for Claim 4(a), in which he alleged ineffective assistance by his trial counsel for failure to investigate his alibi. (Doc. # 23.) In their initial Answer to Mr. Gregg's Application, Respondents had argued that Claim 4(a) was procedurally defaulted. (Doc. # 19 at 22-23.) The Court determined that even if the claim was procedurally defaulted, the default may be excused based on Martinez v. Ryan, 566 U.S. 1 (2012). (Doc. # 23 at 34-35.) In the Court's view, the state court record was insufficient to determine if Mr. Gregg's ineffective assistance of trial claim was “substantial” under Martinez and, therefore, it determined that an evidentiary hearing was necessary. (Id. at 43-45.) The Federal Public Defender was appointed to represent Mr. Gregg for the evidentiary hearing (id. at 46), which was scheduled for September 19, 2017 (Doc. # 26). On May 30, 2017, Respondents filed the Motion to Vacate Evidentiary Hearing and Rule on Claim now before the Court. (Doc. # 34.)

         II. ANALYSIS OF RESPONDENTS' MOTION TO VACATE EVIDENTIARY HEARING AND RULE ON CLAIM

         Respondents now argue, contrary to the assertion they made in their Answer (Doc. # 19), that the state courts adjudicated Mr. Gregg's Claim 4(a) on the merits. (Doc. # 34 at 5.) If the claim was denied on the merits, this Court must apply the deferential standards of § 2254(d). Thus, the question for the Court is whether the Colorado Court of Appeals (“CCA”) denied Mr. Gregg's ineffective assistance of counsel (“IAC”) claim on the merits or on an independent and adequate state procedural ground.

         A. THE CCA OPINION

         The CCA's opinion regarding Claim 4(a) stated:

B. Inadequate Investigation of Alibi Defense
Defendant also contends that his counsel was ineffective because counsel did not investigate and present an alibi defense to his first and third robberies.
In his Crim. P. 35(c) motion for post-conviction relief in the consolidated robbery cases, defendant only challenged counsel's failure to investigate his alibi with respect to the first robbery. He argued that (1) he “was someplace else when the first bank robbery occurred and with today's availability of photographic evidence, had counsel conducted reasonable investigations, i.e., investigations [defendant] asked counsel to conduct; counsel would have been able to discover and present alibi evidence”; and (2) “had counsel cast doubt on the first bank robbery, there is also a reasonable probability that doubt would have been cast on the third robbery as well.” Defendant did not identify any specifics regarding where he was on the day of the first robbery or what evidence counsel would have discovered had he investigated this defense.
The district court found that “[d]efendant has failed to offer any specific description of the facts which support this alibi defense, no[r] has he provided any exhibits or affidavits that would support the existence of an alibi defense.” Thus, the court concluded that defendant's “unsupported and conclusory allegations are not sufficient to establish that a valid defense existed.” We agree with the district court's assessment of defendant's allegations in this regard. Because defendant alleged ineffective assistance on this point without providing the district court with any specific facts regarding his alibi or what counsel should have investigated, the court properly denied this claim without a hearing. See Osorio, 170 P.3d at 800; see also People v. Zuniga, 80 P.3d 965, 973 (Colo.App. 2003) (The defendant's allegations of deficient performance were insufficient because they did not explain what “counsel should have done, what the results of those efforts would have been, and how they would have affected the outcome of the case.”).
Defendant argues otherwise, identifying in his appellate briefs allegations of facts which he believes, if investigated by counsel, would have established a meritorious alibi defense. Defendant did not allege these facts in his Crim. P. 35(c) motion.
Ultimately, we are constrained by the contents of the record presented to us: A party “cannot overcome the lack of information in the record by statements in the briefs.” Fendley v. People, 107 P.3d 1122, 1125 (Colo.App. 2004); see McCall v. Meyers, 94 P.3d 1271, 1272 (Colo.App. 2004) (statements in briefs may be disregarded absent record support); Subsequent Injury Fund v. Gallegos, 746 P.2d 71, 73 (Colo.App. 1987) (“[T]he statements of counsel may not substitute for that which must appear of record.”); see also Sylvia H. Walbolt & Susan L. Landy, Pointers on Preserving ...

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