United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS
A. BRIMMER United States District Judge
Applicant Bernard Jones is a prisoner in the custody of the
Colorado Department of Corrections. Mr. Jones has filed
pro se on December 12, 2016 an Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
(“the Application”) [Docket No. 1]. Mr. Jones is
challenging the validity of his conviction and sentence in
the District Court for El Paso County, Colorado, Case Number
97CR873. On August 28, 2017, Respondents filed an Answer
(“the Answer”) [Docket No. 33]. On February 5,
2018, Mr. Jones filed a Reply Brief (“the
Traverse”) [Docket No. 47].
Jones also has filed a Motion for Discovery and Evidentiary
Hearing [Docket No. 45] with a supporting memorandum of law,
a Motion for Appointment of Counsel [Docket No. 44], and a
motion [Docket No. 51] seeking leave to proceed in forma
pauperis in connection with the motion for appointment
of counsel. The Motion for Discovery and Evidentiary Hearing
is relevant to claim 3(b) and will be denied for the reasons
discussed below in connection with that claim. The motions
for appointment of counsel and for leave to proceed in
forma pauperis also will be denied.
reviewing the record, including the Application, the Answer,
the Traverse, and the state court record, the Court concludes
Mr. Jones is not entitled to relief on his remaining claims.
relevant factual and procedural background, which is lengthy
and convoluted, was summarized by the Colorado Court of
Appeals as follows:
A jury convicted Jones of first degree sexual assault and
possession with intent to distribute a controlled substance.
The trial court found that Jones was a habitual offender and
sentenced him to sixty-four years in prison on the sexual
assault conviction and ninety-six years in prison on the
controlled substance conviction. Jones's convictions were
affirmed on direct appeal. People v. Jones,
(Colo.App. No. 98CA0146, Jan. 13, 2000) (not published
pursuant to C.A.R. 35(f)).
Jones then filed a pro se Crim. P. 35(c) motion alleging
ineffective assistance of trial counsel. The trial court
summarily denied the motion. Jones appealed, and a division
of this court remanded the case for an evidentiary hearing on
the ineffective assistance of trial counsel related to three
issues: (1) evidence of the victim's gang affiliation;
(2) the use of the victim's juvenile adjudication to show
motive or bias; and (3) the testing of Jones's dental
moldings. People v. Jones, (Colo.App. No. 01CA1118,
Apr. 17, 2003) (not published pursuant to C.A.R. 35(f)).
In 2006, the trial court held an evidentiary hearing, which
was later reconvened and completed in 2012. On the date of
the final hearing, Jones filed a supplemental Crim. P. 35(c)
motion based on alleged newly discovered evidence. In a
detailed and well-reasoned order, the trial court denied the
Rule 35(c) motions and declined to hear evidence on the
Docket No. 10-12 at 2-3.
Jones contends he and the victim had consensual sex and
denies any intent to distribute a controlled substance. He
asserts the following claims: ineffective assistance of trial
counsel by failing to obtain and present evidence of the
victim's gang affiliation (claim 1); ineffective
assistance of trial counsel by failing to present evidence of
the victim's juvenile adjudication (claim 2); the trial
court erred during postconviction proceedings by not
considering expert testimony regarding newly discovered
evidence that a bite mark on the victim was inconsistent with
defendant's dentition (claim 3(a)) and trial counsel were
ineffective by failing to have the bite mark tested (claim
3(b)); trial counsel labored under a conflict of interest
(claim 4); ineffective assistance of trial counsel by failing
to challenge the validity of Mr. Jones' prior convictions
(claim 5); and vindictive prosecution by punishing Mr. Jones
for exercising his constitutional rights (claim 6). Facts
pertinent to each claim are set forth below.
Court previously entered an Order [Docket No. 28] dismissing
claim 3(a) and the portion of claim 5 in which Mr. Jones
seeks to directly challenge the validity of his prior
STANDARD OF REVIEW
Court must construe the Application and other papers filed by
Mr. Jones liberally because he is not represented by an
attorney. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); 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
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. Jones 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. Jones 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.
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.
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
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.
House, 527 F.3d at 1018.
Court's inquiry pursuant to the “unreasonable
application” clause is an objective inquiry. 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. Furthermore,
[E]valuating 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]
Richter, 562 U.S. at 101 (internal quotation marks
and citation omitted). In conducting this analysis, 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.
In addition, “review under § 2254(d)(1) is limited
to the record that was before the state court that
adjudicated the claim on the merits.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
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;
see also Richter, 562 U.S. at 102 (stating
“that even a strong case for relief does not mean the
state court's contrary conclusion was
As a condition for obtaining habeas corpus 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.
2254(d)(2) allows the Court to grant a writ of habeas corpus
only if the relevant state court decision was based on an
unreasonable determination of the facts in light of the
evidence presented to the state court. Pursuant to §
2254(e)(1), the Court presumes the state court's factual
determinations are correct and Mr. Jones bears the burden of
rebutting the presumption by clear and convincing evidence.
The presumption of correctness applies to factual findings of
the trial court as well as state appellate courts. See
Al-Yousif v. Trani, 779 F.3d 1173, 1181 (10th Cir.
2015). The presumption of correctness also applies to
implicit factual findings. See Ellis v. Raemisch,
872 F.3d 1064, 1071 n.2 (10th Cir. 2017). “The standard
is demanding but not ...