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Barker v. Raemisch

United States District Court, D. Colorado

April 17, 2018

FREDERICK BARKER, Applicant,
v.
RICK RAEMISCH, Executive Director, Colorado Dept. of Corrections, TRAVIS TRANNI, Warden, Colorado State Penitentiary, CYNTHIA COFFMAN, Attorney General, State of Colorado, Respondents.

          ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

          Richard P. Matsch, Senior Judge

         Frederick Barker was convicted by jury verdict of two counts of felony murder, one count of second degree murder and two counts of aggravated robbery in the District Court for the City and County of Denver, Colorado. He was sentenced to two consecutive terms of life without parole. The killings were those of a Subway store manager on August 12, 2002, and a cab driver on August 26, 2002.

         The Colorado Court of Appeals (“CCA”) affirmed the convictions on direct appeal.

         Barker filed a pro se motion under Crim. P. 35(c) in April, 2009. The denial of that motion was affirmed on appeal by the CCA on May 9, 2013.

         This Application for a Writ of Habeas Corpus was filed on March 23, 2015.

         The claims that are properly before this court are:

(1) Barker's confession should have been suppressed because it was obtained after a long interrogation in violation of the Fifth Amendment, the right to counsel and coercion.
(2) Barker's right to due process and a jury of his peers was violated when his lawyer's Batson challenge to the prosecutor's use of peremptory challenges of non-white jurors.
(3) The Sixth Amendment was violated by ineffective assistance of trial counsel by
(a) failing to retain an expert to analyze a tape recording of a call for the cab,
(b) properly raise and preserve his right to confront witnesses and
(c) object to the joinder of the two cases for trial. These claims must be considered within the limitations imposed by 28 U.S.C. § 2254(d), (1) requiring a showing that the state court proceedings resulted in a decision that was contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court or (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.

         The trial court conducted an evidentiary hearing on the admissibility of the confession. The interrogation began at 5:43 p.m. and continued until early the next morning. Barker was 18 years old. He was given a polygraph examination. The results are not in the record. It is assumed that it was inconclusive. The interrogation was videotaped. The applicant consistently denied any involvement. At one time he said he was scared and wanted to talk with his father. That request was denied. At about 1:00 a.m. the recording was turned off for eight minutes. It was resumed when Barker said he would tell what happened. One of the detectives testified that the gap in the recording was because Barker was told he was going to jail and the questioning was stopped to be resumed when he said he would tell what happened.

         Three Miranda warnings were given at different times. The detectives falsely said that they had DNA and other incriminating evidence. The trial court wrote a lengthy order containing findings of fact supporting the conclusion that the Miranda warnings were adequate and the confession was voluntary. The judge reviewed the videotape and a written ...


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