United States District Court, D. Colorado
ORDER DENYING PETITION FOR WRIT OF HABEAS
Brooke Jackson United States District Judge
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.
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.
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).
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.)
29, 2019 the Court held the referenced evidentiary hearing
and heard testimony from three witnesses: Trevor McFee, Eric
Klein, and Greg Greer.
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
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?”
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.
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
(Id. at pp.75-76.) Juror Wamsley was excused.
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.
Juror Honkey was called forward, he affirmed that he
previously had reported having a hearing ...