United States District Court, D. Colorado
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 ...