United States District Court, D. Colorado
CHARLES K. FORD, Applicant,
RICK RAEMISCH, Executive Director, Colorado Department of Corrections, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER DENYING APPLICATION FOR WRIT OF HABEAS
William J. Martínez United States District Judge.
matter is before the Court on the amended Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF
No. 9) (the “Amended Application”) filed pro
se by Applicant Charles K. Ford. Respondents have filed
an Answer to Petition for Writ of Habeas Corpus (ECF No. 24)
(“the Answer”). Mr. Ford subsequently filed four
letters (ECF Nos. 25, 27, 28, & 29) asserting that his
claims have merit. After reviewing the Amended Application,
the Answer, the state court record, and Mr. Ford's
letters, the Court FINDS and CONCLUDES that the Amended
Application should be denied and the case dismissed with
Ford is challenging the validity of his conviction and
sentence in Denver District Court case number 08CR10514. The
following background information is taken from the opinion of
the Colorado Court of Appeals on postconviction appeal.
¶ 2 In a city park, defendant got into a fistfight with
the victim. After the fight ended and the victim was walking
away, defendant acquired a gun from an acquaintance and shot
the victim several times. Although initially charged with
first degree murder, pursuant to a plea agreement, defendant
pleaded guilty to one count of second degree murder and one
count of first degree assault in the shooting death of the
victim. As part of the plea agreement, defendant agreed to
provide truthful information and testimony about other crimes
and the perpetrators of those crimes. In exchange, the
prosecution agreed to limit the sentence to between
thirty-five and sixty years in the custody of the Department
of Corrections (DOC) and to allow the court to consider
defendant's cooperation in those other cases in
determining the sentence and whether to reduce the sentence
¶ 3 Defendant's sentencing was postponed for several
months to allow him to provide testimony on those other cases
and to enable the court to consider his cooperation in
arriving at an appropriate sentence within the stipulated
range. As it turned out, however, all of those cases were
resolved without the prosecution needing defendant to
¶ 4 Before sentencing, defendant's two attorneys,
Mr. Rios and Ms. Frei, filed a Crim. P. 32(d) motion to
withdraw defendant's guilty plea, alleging that they had
provided ineffective assistance. At the same time, they
sought to withdraw as his counsel and to have alternate
defense counsel appointed. The district court denied both the
Crim. P. 32(d) motion and counsel's motion to withdraw,
and sentenced defendant to consecutive prison terms of
thirty-two years on the second degree murder conviction and
twelve years on the first degree assault conviction. A
division of this court affirmed the denial of defendant's
Crim. P. 32(d) motion. See People v. Ford,
(Colo.App. No. 10CA1090, Mar. 15, 2012) (not published
pursuant to C.A.R. 35(f)).
¶ 5 After the mandate issued following his direct
appeal, defendant filed a pro se Crim. P. 35(b) motion for
reconsideration of his sentence. The district court denied
that motion, finding that defendant's sentence was within
the range provided for in the plea agreement, was appropriate
when entered, and remained appropriate.
¶ 6 Defendant thereafter filed a pro se Crim. P. 35(c)
motion alleging that he received ineffective assistance of
counsel because (1) Mr. Rios promised him that his initial
sentence would be cut in half on reconsideration; (2) Mr.
Rios did not accurately advise him that he would have to
serve seventy-five percent of his sentence before becoming
parole eligible; (3) he was promised as part of the plea
agreement that he would be transferred out of state, but Mr.
Rios failed to require specific performance of that promise;
and (4) he was coerced into pleading guilty because his
attorneys failed to fully investigate the facts of the case
and his self-defense claim and pressured him into accepting
the plea. He also alleged that, but for counsel's
deficient performance, he would not have accepted the plea,
and instead, would have insisted on going to trial.
¶ 7 The district court, by a written order, denied the
claim regarding plea counsel's failure to investigate
because defendant failed to allege with specificity what
investigation could have been done, what the result of such
an investigation would have been, and how it would have
changed his decision to plead guilty. However, the court
found that defendant's remaining claims had arguable
merit and appointed counsel to represent him.
¶ 8 A supplemental motion filed by counsel reiterated
defendant's first three claims, specifically alleging
that plea counsel had promised defendant he would be
sentenced to thirty-five years and that the sentence would be
reduced to seventeen and a half years upon reconsideration.
The supplemental motion alleged that the promises made as
part of the plea agreement were unenforceable and that
defendant therefore should be allowed to withdraw his plea.
¶ 9 At the postconviction hearing, defendant, Mr. Rios,
Ms. Frei, and the district attorney testified. The court
denied defendant's motion by a written order. The court
found credible Mr. Rios' testimony that he never promised
defendant a sentence of thirty-five years or told him that it
would be cut in half on reconsideration. The court also found
that the plea agreement did not include a promise that
defendant would serve his sentence out of state. The court
noted that neither the People nor defendant's attorney
had the authority to get him transferred, but that they could
make a request to the DOC for such a transfer, which was
completely within the DOC's discretion. Thus, the court
concluded that because defendant was fully advised about his
plea agreement and Rios did not make additional promises to
him, he failed to establish that his counsel's
performance was deficient.
(ECF No. 14-6 at 3-7) (People v. Ford, No. 15CA0438
(Colo.App. Mar. 16, 2017) (unpublished)). The Colorado Court
of Appeals affirmed the trial court's order denying the
Rule 35(c) motion. (See ECF No. 14-6).
Ford asserts two claims in the Amended Application. According
to Respondents, Mr. Ford contends in claim 1 that counsel
were ineffective when they: (a) promised Mr. Ford his initial
sentence would be cut in half on reconsideration; (b) did not
accurately advise Mr. Ford he would have to serve
seventy-five percent of his sentence before being eligible
for parole; (c) failed to require specific performance of a
plea-agreement promise that Mr. Ford would be transferred out
of state for his safety; and (d) coerced Mr. Ford's
guilty plea by failing to fully investigate the facts of the
case and his self-defense claim. Mr. Ford contends in claim 2
that the terms of his plea agreement were breached.
Court previously entered an Order to Dismiss in Part (ECF No.
22) dismissing claim 1(d) and claim 2.
STANDARDS OF REVIEW
Court must construe the Amended Application and other papers
filed by Mr. Ford liberally because he is not represented by
an attorney. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972) (per curiam); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). However, the
Court should not be an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110.
28 U.S.C. § 2254(d) provides that a writ of habeas
corpus may not be issued with respect to any claim that was
adjudicated on the merits in state court unless the state
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). Mr. Ford bears the burden of proof
under § 2254(d). See Woodford v.
Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
may be adjudicated on the merits in state court even in the
absence of a statement of reasons by the state court for
rejecting the claim. See Harrington v. Richter, 562
U.S. 86, 98-99 (2011). In particular, “determining
whether a state court's decision resulted from an
unreasonable legal or factual conclusion does not require
that there be an opinion from the state court explaining the
state court's reasoning.” Id. at 98. Thus,
“[w]hen a federal claim has been presented to a state
court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law
procedural principles to the contrary.” Id. at
99. Even “[w]here a state court's decision is
unaccompanied by an explanation, the habeas petitioner's
burden still must be met by showing there was no reasonable
basis for the state court to deny relief.” Id.
at 98. In other words, the Court “owe[s] deference to
the state court's result, even if its reasoning is not
expressly stated.” Aycox v. Lytle, 196 F.3d
1174, 1177 (10th Cir. 1999). Therefore, the Court
“must uphold the state court's summary decision
unless [the Court's] independent review of the record and
pertinent federal law persuades [the Court] that its result
contravenes or unreasonably applies clearly established
federal law, or is based on an unreasonable determination of
the facts in light of the evidence presented.”
Id. at 1178. “[T]his ‘independent
review' should be distinguished from a full de novo
review of the petitioner's claims.” Id.
threshold question the Court must answer under §
2254(d)(1) is whether Mr. Ford seeks to apply a rule of law
that was clearly established by the Supreme Court at the time
his conviction became final. See Williams v. Taylor,
529 U.S. 362, 390 (2000).
Clearly established federal law “refers to the
holdings, as opposed to the dicta, of [the Supreme]
Court's decisions as of the time of the relevant
state-court decision.” Id. at 412.
Furthermore, clearly established law consists of Supreme
Court holdings in cases where the facts are at least
closely-related or similar to the case sub judice.
Although the legal rule at issue need not have had its
genesis in the closely-related or similar factual context,
the Supreme Court must have expressly extended the legal rule
to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th
Cir. 2008). If there is no clearly established federal law,
that is the end of the Court's inquiry under §
2254(d)(1). See id. at 1018.
clearly established rule of federal law is implicated, the
Court must determine whether the state court's decision
was contrary to or an unreasonable application of that
clearly established rule of federal law. See
Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly established
federal law if: (a) “the state court applies a rule
that contradicts the governing law set forth in Supreme Court
cases”; or (b) “the state court confronts a set
of facts that are materially indistinguishable from a
decision of the Supreme Court and nevertheless arrives at a
result different from [that] precedent.”
Maynard [v. Boone], 468 F.3d [665, ] 669
[(10th Cir. 2006)] (internal quotation marks and
brackets omitted) (quoting Williams, 529 U.S. at
405). “The word ‘contrary' is commonly
understood to mean ‘diametrically different, '
‘opposite in character or nature, ' or
‘mutually opposed.'” Williams, 529
U.S. at 405 (citation omitted).
A state court decision involves an unreasonable application
of clearly established federal law when it identifies the
correct governing legal rule from Supreme Court cases, but