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Midyette v. Raemisch

United States District Court, D. Colorado

April 26, 2018

RICK RAEMISCH, Executive Director, Colorado Department of Corrections, and CYNTHIA COFFMAN, Attorney General, State of Colorado, Respondents.



         The 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).

         I. BACKGROUND

         Applicant 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 follows:

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.)

         On May 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.)

         Respondents 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.


         The 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 closing; and
(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.)


         Section 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; 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.

28 U.S.C. § 2254(d).

         The 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)).

         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.” 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. 2008).

         If 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 (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 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 [1222] 1229-30 [10th Cir. 2000]).

House, 527 F.3d at 1018.

         The 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] Court.

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).

         Under 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. Furthermore,

[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.

         The 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)).

         A 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.

         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 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).

         IV. ANALYSIS

         Both Claims Two and Three assert ineffective assistance of trial counsel.

         It was 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.

         To 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).

         If 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).

         Under 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.)

         Furthermore, 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.

         A. CLAIM TWO

         Applicant 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.)

         Applicant 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.)

         Applicant 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.)

         Applicant 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 Shreck hearing;
3) Stipulation to Dr. Hay's testimony without a Shr ...

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