United States District Court, D. Colorado
ORDER DENYING PETITION FOR HABEAS CORPUS
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter before the Court is an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed by
Applicant through counsel. (Doc. # 1.) The Court has
determined it can resolve the Application without a hearing.
See 28 U.S.C. § 2254(e)(2); Fed. R. Governing
Section 2254 Cases 8(a).
was convicted of three counts of child abuse resulting in
death. See (Doc. # 9-2) (People of the State of
Colo. v. Midyette, No. 11CA2441, 3 (Colo.App. May 15,
2014.) In the Colorado Court of Appeals' denial of
Applicant's Colorado Rule of Criminal Procedure 35(c)
postconviction motion, the Colorado Court of Appeals
summarized the underlying facts of the criminal case as
Defendant and her husband brought their infant son to the
hospital with seizure-like behavior, gray coloring, and a
hardening soft spot on his head. The child died one week
later after having been taken off of life support. The
medical providers suspected child abuse and contacted the
Boulder County Department of Social Services. While defendant
and her husband were still at the hospital, a social worker
told them that a dependency and neglect case would be filed.
After the coroner ruled the cause of death to be a brain
injury from nonaccidental trauma, a grand jury indicted
defendant and her husband for felony child abuse resulting in
death. The indictment was returned fourteen months after the
child had died. Defendant was charged only on the theory that
although her husband had harmed the child, she was
responsible because she had seen obvious indicators of abuse
but had failed to remove the infant from the abusive
situation or otherwise protect him.
Defendant and her husband were tried separately, with
defendant's trial taking place first. A jury convicted
her on three counts of child abuse resulting in death.
(Doc. # 9-2 at 2-3.)
16, 2016, Magistrate Judge Gordon P. Gallagher directed
Respondents to file a Pre-Answer Response and to address the
affirmative defenses of timeliness under 28 U.S.C. §
2254(d), and exhaustion of state court remedies under 28
U.S.C. § 2254(b)(1)(A), if Respondents intended to raise
either or both in this action. (Doc. # 3.) Respondents filed
a Pre-Answer Response on July 5, 2016. (Doc. # 9.) Applicant
did not reply to the Response. The Court reviewed the
Pre-Answer Response and filed an Order to Dismiss in Part and
for Answer on December 13, 2016. (Doc. # 14.) In the December
13 Order, the Court determined that two of Applicant's
four claims, Claims One and Four, were procedurally defaulted
and barred from federal habeas review. (Id. at 7.)
were directed to file an answer in compliance with Rule 5 of
the Rules Governing Section 2254 Cases that fully addresses
the merits of Claims Two and Three, (id.), which
they did on February 9, 2017 (Doc. # 19). Applicant was
granted two extensions of time to reply. (Doc. ## 21, 23.)
Applicant filed a Reply on May 11, 2017. (Doc. #
24.) After reviewing the Application, the Answer, the Reply,
and the state court record, the Court concludes that the
Application should be denied and the case dismissed with
prejudice for the following reasons.
remaining claims for review on the merits, Claims Two and
Three, are as follows:
(2) Trial counsel, Mr. Truman, had insufficient time to
prepare and failed to i.) object to experts' testimonies;
ii) distinguish between medical and legal child abuse; and
iii.) object to a statement made by the prosecution during
(3) Co-counsel failed to state the theory of defense during
opening statement and stated family and friends would be
called at trial to testify on Applicant's behalf, which
was not done, and Mr. Truman did not present a theory of
defense until closing argument, at which time he called
Applicant a liar.
(Doc. # 14 at 2.)
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 court adjudication:
(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).
Court reviews claims of legal error and mixed questions of
law and fact pursuant to 28 U.S.C. § 2254(d)(1). See
Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The
threshold question pursuant to ' 2254(d)(1) is whether
Applicant seeks to apply a rule of law that was clearly
established by the Supreme Court at the time her conviction
became final. See Williams v. Taylor, 529 U.S. 362,
390 (2000). The “review under ' 2254(d)(1) is
limited to the record that was before the state court that
adjudicated the prisoner's claim on the merits.”
Cullen v. Pinholster, 563 U.S.170, 181 (2011).
“Finality occurs when direct state appeals have been
exhausted and a petition for writ of certiorari from this
Court has become time barred or has been disposed of.”
Greene v. Fisher, 565 U.S. 34, 39 (2011) (citing
Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)).
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.”
Williams, 529 U.S. 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.
there is no clearly established federal law, that is the end
of the Court's inquiry pursuant to ' 2254(d)(1).
See Id. at 1018. If a 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) Athe 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
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
unreasonably applies it to the facts. Id. at 407-08.
Additionally, we have recognized that an unreasonable
application may occur if the state court either unreasonably
extends, or unreasonably refuses to extend, a legal principle
from Supreme Court precedent to a new context where it should
apply. Carter [v. Ward], 347 F.3d. [860, ] 864 [10th
Cir. 2003] (quoting Valdez [v. Ward, 219 F.3d 
1229-30 [10th Cir. 2000]).
House, 527 F.3d at 1018.
Court's inquiry pursuant to the "unreasonable
application" clause is an objective one. See
Williams, 529 U.S. at 409-10. "[A] federal habeas
court may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly. Rather that application must also
be unreasonable." Id. at 411. "[A]
decision is 'objectively unreasonable' when most
reasonable jurists exercising their independent judgment
would conclude the state court misapplied Supreme Court
law." Maynard, 468 F.3d at 671. In addition,
evaluating whether a rule application was unreasonable
requires considering the rule's specificity. The more
general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations. [I]t is not an
unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule
that has not been squarely established by [the Supreme]
Harrington v. Richter, 562 U.S. 86, 101 (2011)
(internal quotation marks and citation omitted). The Court
"must determine what arguments or theories supported or
. . . could have supported[ ] the state court's
decision” and then “ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior
decision of [the Supreme] Court.” Id. at 102.
“[E]ven a strong case for relief does not mean the
state court's contrary conclusion was
unreasonable.” Id. (citation omitted).
“Section 2254(d) reflects the view that habeas corpus
is a guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error
correction through appeal.” Id. at 102-03
(internal quotation marks and citation omitted).
this standard, “only the most serious misapplications
of Supreme Court precedent will be a basis for relief under
' 2254.” Maynard, 468 F.3d at 671.
[a]s a condition for obtaining habeas corpus relief from a
federal court, a state prisoner must show that the state
court's ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Richter, 562 U.S. at 103.
Court reviews claims of factual errors pursuant to 28 U.S.C.
§ 2254(d)(2). See Romano v. Gibson, 278 F.3d
1145, 1154 n. 4 (10th Cir. 2002). Section 2254(d)(2) allows a
court to grant a writ of habeas corpus only if the state
court decision was based on an unreasonable determination of
the facts in light of the evidence presented. Pursuant to
' 2254(e)(1), the Court must presume that the state
court's factual determinations are correct, see
Sumner v. Mata, 455 U.S. 591, 592-93 (1982), and
Applicant bears the burden of rebutting the presumption by
clear and convincing evidence, see Houchin v.
Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997).
“The standard is demanding but not insatiable . . .
[because] '[d]eference does not by definition preclude
relief.' “ Miller-El v. Dretke, 545 U.S.
231, 240 (2005) (quoting Miller-El v. Cockrell, 537
U.S. 322, 340 (2003)).
claim, however, 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. Richter, 562
U.S. at 98. (“[D]etermining 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”). Furthermore, A[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.
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 Amust uphold the state
court's summary decision unless [its] independent review
of the record and pertinent federal law persuades [it] that
[the] 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. “This
'independent review' should be distinguished from a
full de novo review of the [applicant's] claims.”
Id. (citation omitted). Likewise, the Court applies
the Antiterrorism and Effective Death Penalty Act's
(“AEDPA”) deferential standard of review when a
state court adjudicates a federal issue relying solely on a
state standard that is at least as favorable to the applicant
as the federal standard. See Harris v. Poppell, 411
F.3d 1189, 1196 (10th Cir. 2005). If a claim was not
adjudicated on the merits in state court, and if the claim
also is not procedurally barred, the Court must review the
claim de novo and the deferential standards of '
2254(d) do not apply. See Gipson v. Jordan, 376 F.3d
1193, 1196 (10th Cir. 2004).
Claims Two and Three assert ineffective assistance of trial
clearly established when Applicant was convicted that a
defendant has a Sixth Amendment right to the effective
assistance of counsel. See Strickland v. Washington,
466 U.S. 668 (1984). Ineffective assistance of counsel claims
are mixed questions of law and fact. See Id. at 698.
establish that counsel was ineffective, Applicant must
demonstrate both that counsel's performance fell below an
objective standard of reasonableness and that counsel's
deficient performance resulted in prejudice to her defense.
See Id. at 687. “Judicial scrutiny of
counsel's performance must be highly deferential.”
Id. at 689. “A court considering a claim of
ineffective assistance must apply a strong presumption that
counsel's representation was within a wide range of
reasonable professional assistance.” United States
v. Rushin, 642 F.3d 1299, 1306 (10th Cir. 2011)
(citations and internal quotation marks omitted). It is
Applicant's burden to overcome this presumption by
showing that the alleged errors were not sound strategy under
the circumstances, see Strickland, 466 U.S. at 689,
and that the errors were so serious that “counsel was
not functioning as the counsel guaranteed the defendant by
the Sixth Amendment, ” Rushin, 642 F.3d at
1307 (quoting Richter, 562 U.S. at 104) (emphasis,
citation, and internal quotation marks omitted). Applicant
bears the burden of rebutting this presumption by clear and
convincing evidence. See 28 U.S.C. §
2254(e)(1). Applicant must show counsel failed to act
“reasonab[ly] considering all the circumstances.”
Cullen v. Pinholster, 563 U.S. 170, 189 (2011)
(quoting Strickland, 466 U.S. at 688).
Applicant fails to satisfy either prong of the
Strickland test, the ineffective assistance of
counsel claim must be dismissed. See Strickland, 466
U.S. at 697. Pursuant to ' 2254(e)(1), the factual
findings of the state courts are presumed correct. Finally,
conclusory allegations that counsel was ineffective are not
sufficient to warrant habeas relief. See Humphreys v.
Gibson, 261 F.3d 1016, 1022 n.2 (10th Cir. 2001).
the prejudice prong, Applicant must establish “a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at
694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Id. In assessing prejudice under Strickland
the question is whether it is reasonably likely the result
would have been different. Richter, 562 U.S. at 111.
“The likelihood of a different result must be
substantial, not just conceivable.” Id. at 112
(citing Strickland, 466 U.S. at 693.)
under AEDPA, “[t]he pivotal question is whether the
state court's application of the Strickland
standard was unreasonable. This is different from asking
whether trial counsel's performance fell below
Strickland's standard, ” which is the
question asked “on direct review of a criminal
conviction in a United States district court.”
Richter, 562 U.S. at 101. When ' 2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is “whether there is any
reasonable argument that counsel satisfied Strickland's
deferential standard.” Id. at 105.
asserts in Claim Two that Mr. Truman, her trial attorney, was
ineffective because he had insufficient time to prepare for
medical and lay witnesses. (Doc. # 1 at 85.) In particular,
Applicant contends that Mr. Truman had tried eight other
felony trials between May 8, 2007, when Applicant was
indicted, and December 11, 2007, when her trial started, and
had to read over 17, 000 pages of discovery, which included
complex medical discovery. (Id.) Applicant further
contends that she spent three days a week, five to eight
hours each time, studying the materials at Mr. Truman's
office, but he was never reviewing the materials when she was
there. (Id. at 86.) Applicant also contends that,
based on the fees he charged after she was indicted, he
should have spent 720 hours on the case, but he has no
accounting of the time he spent on Applicant's case,
which at most could be only 120 hours. (Id.)
argues that Mr. Truman should have requested a
Shreck hearing, litigated the fact that the
prosecution experts could not opine on legal child abuse, and
asked for appropriate jury instructions. (Id.)
Applicant further argues that Mr. Truman did not understand
the difference between legal and medical child abuse and this
lack of understanding prejudiced her. (Id.)
Applicant concludes that the jury heard over and over again
from prosecution witnesses that the baby's death was a
result of child abuse, but due to Mr. Truman's
ineffectiveness the jury was not told that medical child
abuse “does not mean” Applicant was
criminally culpable. (Id. at 87.)
relies on the Colorado Court of Appeals' holding in
People v. Rector, 226 P.3d 1170, 1174-75 (Colo.App.
2009), that the trial court must determine if proffered
expert testimony satisfies Colorado Rule of Evidence 702.
(Doc. # 1 at 88.) Applicant further contends expert testimony
that a child's injuries constituted “child
abuse” can invade the function of the jury.
(Id.) Applicant acknowledges, however, that
Rector was not decided at the time of her trial, but
argues Rector was based on well-established law,
which trial counsel should have researched. (Id. at
93.) Applicant also acknowledges that Rector was
reversed by the Colorado Supreme Court, but claims the Court
did not overrule any law on the distinction between medical
and legal child abuse. (Id.)
sets forth alleged examples of Mr. Truman's failure to
object or comprehend the distinction between a medical
diagnosis of child abuse and the legal offense of child
abuse, which include:
1) The DA's opening statement;
2) Dr. Meyer's testimony admitted without a
3) Stipulation to Dr. Hay's testimony without a