Hardin v. Jaques

          ORDER DENYING AMENDED APPLICATION FOR WRIT OF HABEAS CORPUS

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

         The matter before the Court is an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed pro se by Applicant. (Doc. # 6). 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

         In 1988, Mr. Hardin was convicted by a jury of two counts of aggravated robbery, two counts of felony murder, and two counts of murder after deliberation. He was sentenced to consecutive terms of sixteen years for each aggravated robbery conviction and life imprisonment for each felony murder.

         The Colorado Court of Appeals provides the following detailed account of the background in this case:

Hardin was accused of robbing three men, Isaac Fisher, Victor Irving, and Lloyd Rhodes, and of killing two of the men, Fisher and Irving. The prosecution charged Hardin with one count of aggravated robbery for the robbery of all three men and with two counts each of felony murder and murder after deliberation with respect to the killings of Fisher and Irving. When Hardin's 1988 trial concluded, the jury found him guilty by separate verdict forms of two counts of aggravated robbery regarding Irving and Rhodes and two counts each of felony murder and murder after deliberation with respect to Fisher and Irving. The jury acquitted Hardin of the aggravated robbery count with respect to Fisher.

The trial court entered a judgment of conviction and sentenced Hardin to consecutive terms of imprisonment of sixteen years for each aggravated robbery conviction and life for each felony murder conviction. It did not sentence Hardin on the murder after deliberation convictions.

Several months after the trial, Hardin filed a notice of appeal regarding the judgment of conviction. Soon after, he requested and was granted a limited remand to pursue an ineffective assistance claim, pursuant to Crim. P. 35(c), concerning his trial counsel. To avoid a conflict of interest, the public defender's office was allowed to withdraw from the postconviction proceedings and the appeal. In granting the remand in 1991, a division of this court ordered that the postconviction proceedings "be done with all due speed."

Over the next six years, the postconviction court appointed a succession of private attorneys to represent Hardin; they all withdrew before resolution of the proceedings. The postconviction court repeatedly set the matter, only to later vacate the settings. Hardin repeatedly expressed frustration with his legal representation and with his appointed attorneys' lack of action in the postconviction court and in this court.

A division of this court eventually vacated the limited remand and decided Hardin's direct appeal in 1997, about ten years after Hardin committed the underlying crimes. See People v. Hardin, (Colo.App. No. 88CA1898, Dec. 18, 1997) (not published pursuant to C.A.R. 35(f)) (Hardin I). That division affirmed Hardin's convictions, but it remanded with instructions for the trial court to vacate the felony murder conviction concerning Irving's death, enter a judgment of conviction for the count of murder after deliberation concerning Irving's death, and resentence Hardin accordingly. Id. That division also concluded that Hardin's ineffective assistance of counsel claims should be considered in a postconviction proceeding. Id.

Hardin later filed a pro se Crim. P. 35(c) motion raising numerous claims, including ineffective assistance of counsel. The postconviction court denied the motion in 1999 without holding a hearing, appointing counsel, or resentencing Hardin in accordance with the remand instructions. Hardin appealed the 1999 order denying his postconviction motion. In December 2000, a division of this court reversed the order and remanded with instructions to hold further proceedings on Hardin's postconviction claims and to comply with the 1997 remand instructions regarding resentencing. See People v. Hardin, (Colo.App. No. 99CA24O5, Dec. 21, 2000) (not published pursuant to C.A.R. 35(f)) [(Hardin II)].

After the remand, the postconviction court appointed another attorney to represent Hardin in April 2001. Over the next four years, and after the postconviction court allowed several extensions of time to supplement Hardin's pro se Crim. P. 35(c) motion, Hardin's appointed counsel failed to file any supplement. Meanwhile, Hardin made numerous pro se filings expressing his frustration with his attorney's inaction and his desire to obtain adequate counsel. In response to the inactivity in these proceedings, the postconviction court appointed Hardin's current attorney in February 2005.

Almost eight years later, in December 2012 - about twenty-four years after trial and about twelve years after Hardin filed his original Crim. P. 35(c) motion - the third and final trial judge to preside over this case since the 2000 remand issued an order mandating that Hardin's postconviction proceedings "get moving." Thereafter, Hardin's attorney filed two supplemental briefs in support of his motion for postconviction relief. The postconviction court held an evidentiary hearing over three days on the matter. After the hearing, the postconviction court denied Hardin's motion. In denying the motion, the postconviction court stated that the twelve-year delay in the postconviction proceedings "did not amount to a remedial due process violation . . . and, perhaps most importantly, did not legally prejudice [Hardin]."

(Doc. # 13-9 at 2-6) (People v. Hardin, 405 P.3d 379 (Colo.App. 2016) (Hardin III).

         Following the trial court's lengthy written order, issued on February 26, 2014, denying Mr. Hardin's postconviction claims, (Doc. # 13-7), he appealed the denial, (Doc. # 13-8). The Colorado Court of Appeals affirmed the denial of his postconviction claims on December 1, 2016. Hardin III, (Doc. # 13-9). The Colorado Supreme Court denied certiorari review on October 16, 2017. (Docs. #13-10 and 13-11).

         Mr. Hardin filed the instant federal habeas corpus action on November 2, 2017. (Doc. # 1). In the Amended Application, filed on November 28, 2017, Mr. Hardin asserts the following ten claims for relief:

1. Mr. Hardin's convictions for felony murder and aggravated robbery are invalid because the jury failed to convict him of the charged aggravated robbery which served as the underlying felony for the aggravated murder. This violated the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution;

2. It was improper for Mr. Hardin to be convicted and sentenced for aggravated robbery when that aggravated robbery served as the predicate felony for a felony murder conviction;

3. The over eight year delay in adjudicating Mr. Hardin's direct appeal violated his rights under the due process and equal protection clauses of the United States Constitution;

4. The trial court's "acquittal first" instructions in Mr. Hardin's case interfered with the jury's ability to consider lesser included offenses thus depriving Mr. Hardin of his Fifth, Sixth and Fourteenth Amendment rights under the United States Constitution;

5. The trial court erred in failing to provide testimony requested by the jury during its deliberations thus violating Mr. Hardin's rights as guaranteed by the United States Constitution;

6. The Court's over 12-year delay in resolving Mr. Hardin's Crim. P. 35(c) motion violated Mr. Hardin's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and the corresponding Colorado Constitution;

7. The denial of Mr. Hardin's right to counsel of choice violated the Sixth and Fourteenth Amendments of the United States Constitution and clearly established federal law;

8. Mr. Hardin's appellate counsel rendered ineffective assistance of counsel by failing to raise "counsel of choice" on direct appeal as this clearly violated his constitutional rights and clearly established federal law;

9. Counsel was ineffective at Mr. Hardin's trial thus violating Mr. Hardin's constitutional rights pursuant to the Sixth and Fourteenth Amendments;

10. Delay in the re-sentencing of Mr. Hardin of 15 years from the Court of Appeals mandate in 88CA1898 requiring re-sentencing issued in 1998 following denial of a petition for certiorari to the Colorado Supreme Court, commensurate with the delay in re-sentencing of Mr. Hardin of 12 years from the Court of Appeals mandate in 99CA24O5 requiring re-sentencing in 2001 violates due process, speedy trial rights, and amounts to cruel and unusual punishment.

(Doc. # 6).

         On November 30, 2017, Magistrate Judge Gordon P. Gallagher ordered Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C. § 2254(b)(l)(A) if they intended to raise either or both of those defenses in this action. (Doc. # 7). After receiving an extension of time, Respondents filed their Pre-Answer Response (Doc. # 13) on January 18, 2018, arguing that the Application appeared timely but that Claims One, Two, Four, Five, Seven, Eight, Nine and Ten were procedurally defaulted. Additionally, Respondents argued that Claims One and Two were moot, and Claims Three, Six, and (part of) Nine failed to present a cognizable habeas claim. Mr. Hardin filed a Reply (Doc. # 16) on March 8, 2018, and a Supplement to the Reply (Doc. # 17) on March 30, 3018.

         The Court reviewed the Pre-Answer Response, the Reply, and the Supplement to the Reply, and filed an Order to Dismiss in Part and for an Answer on May 4, 2018. See (Doc. # 22). In the May 4 Order, the Court determined that Claims One, Four, Seven, Eight and Ten were procedurally defaulted and barred from federal habeas review. Id. Additionally, Claim Two was dismissed as moot and Claim Six was dismissed for failure to state a cognizable habeas claim. Id. Respondents were directed to file an answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases that fully addressed the merits of Claims Three and Five. Id. Additionally, pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), the Court deferred ruling on the applicability of a procedural bar to the ineffective assistance of counsel allegations asserted in Claim Nine, pending receipt of the state court record and Respondents' argument in the Answer as to whether the claim is substantial.

         Respondents filed an Answer on June 28, 2018. (Doc. # 30). Applicant was granted an extension of time to file a Reply. He filed a Traverse on August 22, 2018. (Doc. # 33). After reviewing the Amended Application, the Answer, the Traverse, and the state court record, the Court concludes, for the following reasons, that the Application should be denied and the case dismissed with prejudice.

         II. HABEAS CLAIMS

         The remaining claims for review on the merits, Claims Three and Five, are as follows:

(3) The over eight-year delay in adjudicating Mr. Hardin's direct appeal violated his rights under the due process and equal protection clauses of the United States Constitution;

(5) The trial court erred in failing to provide testimony requested by the jury during its deliberations thus violating Mr. Hardin's rights as guaranteed by the United States Constitution.

         Additionally, Claim Nine, which was procedurally defaulted, but might be subject to review pursuant to Martinez v. Ryan is:

(9) Counsel was ineffective at Mr. Hardin's trial thus violating Mr. Hardin's constitutional rights pursuant to the Sixth and Fourteenth Amendments.

(Doc. # 6).

         III. LEGAL STANDARDS

         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 ...