Meadows v. Lind

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          R. Brooke Jackson United States District Judge

         This matter is before the Court on the Third Amended Petition for Writ of Habeas Corpus (ECF No. 62) (the “Third Amended Petition”) filed April 12, 2019 by Petitioner Kennith Meadows, seeking relief pursuant to 28 U.S.C. § 2254. Mr. Meadows challenges the validity of his conviction in Jackson County, Colorado, Combined Courts case number 07CR11. After reviewing the entire record before the Court, the Court FINDS and CONCLUDES that the Third Amended Petition should be denied, and the case dismissed with prejudice.

         I. BACKGROUND

         A. Procedural Background.

         Mr. Meadows is a prisoner in the custody of the Colorado Department of Corrections. He commenced this action by filing pro se an application for a writ of habeas corpus (ECF No. 1). On November 17, 2016, still proceeding pro se, Mr. Meadows filed an amended application (ECF No. 8) raising two claims for relief: a Fifth Amendment claim asserting a violation of Miranda v. Arizona, 384 U.S. 436 (1966), and a Sixth Amendment claim asserting a violation of his right to a fair and impartial jury drawn from a fair cross-section of the community.

         On August 31, 2017 the Court granted Mr. Meadows' motion for appointment of counsel, and on September 11, 2017 counsel for Mr. Meadows entered an appearance. On March 19, 2018 the Court granted counsel's motion to file a Second Amended Petition (ECF No. 42). The Second Amended Petition presents one claim, i.e., that trial counsel, Trevor McFee, was ineffective. Mr. Meadows concedes in the Second Amended Petition that the two claims he raised in the prior pro se pleading are not tenable claims. On June 26, 2018 Respondents filed a Response to Second Amended Habeas Application (ECF No. 46) and on September 17, 2018 Mr. Meadows filed a Reply Brief (ECF No. 49).

         In November 2018 the Court determined it was necessary to hold an evidentiary hearing, and a hearing was scheduled for May 29, 2019. On March 26, 2019, the Court granted Mr. Meadows leave to file a Third Amended Petition to clarify the ineffective assistance of counsel claim. As noted above, the Third Amended Petition was filed on April 12, 2019. No further briefs were filed, and Mr. Meadows agreed to stipulate “that a non-response [to the Third Amended Petition] constitutes no acquiescence to the amendment's additional contents.” (ECF No. 58 at p.9.)

         On May 29, 2019 the Court held the referenced evidentiary hearing and heard testimony from three witnesses: Trevor McFee, Eric Klein, and Greg Greer.

         B. Factual Background.

         Mr. Meadows was convicted by a jury in 2008 on one count of sexual assault on a child by one in a position of trust and one count of aggravated incest. His ineffective assistance of counsel claim relates to Mr. McFee's performance during voir dire when the trial court excused a number of hard-of-hearing jurors. As voir dire commenced, the judge in his introductory remarks invited anyone with a hearing problem to come up to the front and told the panel to “raise your hand, put it by your ear, and I'll know you can't hear me.” (Trial Tr., Vol. 1 (July 21, 2008) at p.25.) The judge reiterated this instruction a short time later:

And if any of you have any difficulty hearing me for any reason, please indicate so by raising your hand; and I'd ask the bailiff to wave to me so that I see it, and I'll go ahead and try to bring you forward so you can hear.

We'll try to accommodate any of that. We can have the jurors sit close here, as close as we can. The witness is going to be over there.

And make sure that you get a front seat, so to speak, if we can help you, in - in making sure you hear everything that goes on here.

(Id. at p.28.) Once the judge began asking questions, Juror Honkey, who had not yet been called up, raised his hand and told the judge “I haven't heard practically anything that you said” and “I'm partially deaf.” (Id. at pp.41-42.) The judge responded by stating “I'm sorry then. For me, I'm shouting. That's as high as I get.” (Id. at p.42.) The judge also advised Juror Honkey that, “When you get called up here - I'm sorry. You may want to get a medical thing. You can get excused if you have medical - I generally - With this number of jurors, I am not going to let anybody go until I have to, okay?” (Id.)

         When Juror Bauman was called forward, he affirmed that he had “heard the Court's inquiry so far” but also stated he has sleep apnea and was “hard [of] hearing.” (Id. at pp.50-51.) The judge considered seating Juror Bauman “right in front, but I'm not sure I'll be able to see you bob off either.” (Id.) Juror Bauman was dismissed.

         When called, Juror Wamsley told the judge “I can't hardly hear what you say” and affirmed he was having trouble hearing. (Id. at p.75.) The judge indicated “[i]f it was a really short trial, Mr. Wamsley, I'd keep you on and we'd try to speak up loud enough and directly to you. But this is a long trial. I'm going to get involved in other things and won't pay attention.” (Id.) The judge then stated, “Unless there is an objection or further inquiry -” and Mr. McFee interjected, “Judge, do we not have some sort of amplification devices that we could assist with - .” (Id.) The clerk responded “[n]ot here, ” and the judge stated:

Remember where you are, Mr. McFee; we do not have that here.

I'm sure they do down in Fort Collins, but we don't have it available, and I'm not sure I can get it here in a reasonable time. We do have some assistance that's available in other parts of the district, probably, but not right here.

(Id. at pp.75-76.) Juror Wamsley was excused.

         Juror Follet also reported having trouble hearing and hearing only “some” of what was being said. Mr. McFee objected to dismissing Juror Follett and stated:

I understand we don't have the equipment here, but this is not the first. I think there's another gentleman who indicated he had a similar concern as well.

And I think we have the obligation to provide these folks the necessary equipment so that they can serve as jurors if needed. So -.”

(Id. at p.79.) In response the judge stated:

I understand, Counsel, but I'm not sure we can get that here within a reasonable time. I could recess, I suppose, and try to get it here tomorrow.

But this juror is giving me a very quizzical look, and I'm speaking up as loud as I get. So I'm going to go ahead and excuse Miss Follett.

(Id. at p.80.) Mr. McFee said nothing further and did not request a continuance.

         When Juror Honkey was called forward, he affirmed that he previously had reported having a hearing ...