United States District Court, D. Colorado
ORDER ADOPTING JULY 25, 2019 RECOMMENDATION OF THE
MAGISTRATE JUDGE AND DENYING WRIT OF HABEAS CORPUS
WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE
Plaintiff
Jennifer Freels (“Freels”) is an inmate in the
custody of the Colorado Department of Corrections. Freels
seeks a writ of habeas corpus under 28 U.S.C. § 2254,
claiming that certain alleged errors during her trial
proceedings in state court rendered her subsequent conviction
unconstitutional. (ECF No. 1.) On July 25, 2019, United
States Magistrate Judge Scott T. Varholak issued a
recommendation (“Recommendation”) that the Court
review Freels's contentions de novo (as opposed
to reviewing them under the deferential standard that §
2254 normally requires), but that Freels's petition
should be denied on its merits. (ECF No. 34.) Freels filed a
timely objection (“Objection”). (ECF No.
35.)[1]
Defendants filed no response, nor any objection to the
portions of Judge Varholak's reasoning that are
unfavorable to them.
For the
reasons set forth below, the Court agrees with Judge Varholak
that Freels is not entitled to habeas relief. Accordingly,
her application for such relief is denied and this matter is
terminated.
I.
LEGAL STANDARDS
A.
Section 2254 Standard
Freels
seeks a writ of habeas corpus under 28 U.S.C. § 2254(d):
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(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;
or
(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.
This
statutory scheme can be broken out into a series of
questions:
1. Is the petitioner in custody pursuant to the judgment of a
state court?[2]
2. Was the claim on which the petitioner bases his or her
petition raised in his or her state appellate or
post-conviction proceedings?[3]
3. Did the state court's decision on the petitioner's
claim contradict or unreasonably apply federal law as
established clearly by the United States Supreme Court? Or,
alternatively, did the state court's decision on the
petitioner's claim rely on an unreasonable determination
of facts in light of the evidence presented to the state
court?
A
decision is “contrary to . . . clearly established
Federal law, as determined by the Supreme Court of the United
States” if “the state court applies a rule that
contradicts the governing law set forth in [the Supreme
Court's] cases.” Williams v. Taylor, 529
U.S. 362, 405 (2000). “A state-court decision will also
be contrary to [the Supreme] Court's clearly established
precedent if 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.” Id. at 406.
As for
the “unreasonable application” prong, it applies
when “the state court identifies the correct governing
legal rule from [the Supreme] Court's cases but
unreasonably applies it to the facts of the particular state
prisoner's case, ” or “the state court either
unreasonably extends a legal principle from [the Supreme
Court's] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a
new context where it should apply.” Id. at
407. A state court's decision is
“unreasonable” in this sense “when most
reasonable jurists exercising their independent judgment
would conclude the state court misapplied Supreme Court
law.” Maynard v. Boone, 468 F.3d 665, 671
(10th Cir. 2006).
If a
state court decision runs afoul of these standards, the
applicant is not automatically entitled to a writ of habeas
corpus. Rather, the Court must then go to the merits of the
applicant's claim, without deference to the decision(s)
of the state court. See, e.g., Panetti v.
Quarterman, 551 U.S. 930, 948 (2007) (“As a result
of [the state court's] error, our review of
petitioner's underlying incompetency claim is
unencumbered by the deference [§ 2254] normally
requires.”). And harmless error analysis may also
apply, so long as the error was not “structural”
(i.e., so fundamental that no inquiry into harm is
needed). See Bland v. Sirmons, 459 F.3d 999, 1009
(10th Cir. 2006).
B. Rule
72(b) Standard of Review
When a
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires
that the district judge “determine de novo any part of
the magistrate judge's [recommendation] that has been
properly objected to.” An objection to a recommendation
is properly made if it is both timely and specific.
United States v. One Parcel of Real Property Known as
2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).
An objection is sufficiently specific if it “enables
the district judge to focus attention on those issues-factual
and legal-that are at the heart of the parties'
dispute.” Id. In conducting its review,
“[t]he district court judge may accept, reject, or
modify the recommendation; receive further evidence; or
return the matter to the magistrate judge with
instructions.” Id.
In the
absence of a timely and specific objection, “the
district court may review a magistrate . . . [judge's]
report under any standard it deems appropriate.”
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991) (citing Thomas v. Arn, 474 U.S. 140, 150
(1985)); see also Fed. R. Civ. P. 72 Advisory
Committee's Note (“When no timely objection is
filed, the court need only satisfy itself that there is no
clear error on the face of the record.”).
II.
BACKGROUND
Except
in two instances that will be discussed below, Freels does
not object to the Recommendation's recitation of the
relevant background. The Court has discovered no clear error
in that recitation and therefore treats the unobjected-to
portions as undisputed. The Court finds the following summary
adequate for present purposes, with additional details to be
discussed in the Analysis section, below.
On
November 2, 2007, Freels shot her husband in the head at
their home in Northglenn, Colorado, killing him instantly.
(ECF No. 34 at 2; see also Register of Action for
Adams County No. 2007-CR-3399 (“Register of
Action”), at 1.)[4] She admitted to the shooting but asserted
self-defense. (ECF No. 34 at 2.) The Hon. Mark D. Warner,
Adams County (Colorado) District Judge, presided over her
prosecution. (Register of Action at 3.) At trial in August
2008, the jury hung and the court declared a mistrial. (ECF
No. 34 at 2; Register of Action at 10.)
In
preparation for the second trial, Freels herself filed a
motion for new counsel because she believed her defense
attorneys were providing ineffective assistance by not
allowing her to fully testify regarding the circumstances
that prompted Freels to shoot her husband. (ECF No. 34 at 2;
Register of Action at 12.) Judge Warner held an in
camera hearing on that motion in mid-October 2008 and
denied it, so Freels elected to discharge her counsel and
proceed pro se. (Id. at 12-13.) Judge
Warner appointed a new defense attorney, Mr. Jeffrey Doniger,
as advisory counsel. (Id. at 14.)
Ten
days later, Judge Warner sua sponte reconsidered his
handling of Freels's motion for new counsel. He concluded
that he should have found “the functional
equivalent” of a complete breakdown in communication
between Freels and her former attorneys, and so he should
have granted the motion and appointed new counsel.
(Id.) He therefore changed his previous denial of
the motion to a grant, and converted Mr. Doniger from
advisory counsel to appointed counsel. (Id.) At a
hearing shortly afterward, Freels confirmed that she accepted
Mr. Doniger as her new attorney. (ECF No. 34 at 2-3.) Judge
Warner set a final pretrial conference for March 25, 2009,
and a new trial date of March 30, 2009. (Register of Action
at 14.)
On
March 24, 2009-a day before the final pretrial
conference-Judge Warner held a hearing on a motion in
limine and on a new request by Freels to proceed pro
se with advisory counsel. (Id. at 16.) She also
requested a continuance of the trial so she could be better
prepared. (Id.) Judge Warner reserved his ruling on
that issue until the final pretrial conference the next day.
(Id.) There, he denied Freels's request, finding
that it was timed for purposes of creating delay and gaining
a tactical advantage. (ECF No. 34 at 3-4.) Against Mr.
Doniger's advice, Freels then waived her right to a jury
trial. (Id. at 4; Register of Action at
16.)[5]
A trial
to the court began on March 30, 2009, with Mr. Doniger
continuing to represent Freels. (ECF No. 34 at 4.) The
evidence “overwhelmingly” suggested that
Freels's husband died from a “contact
[i.e., point-blank] gunshot wound to the back of his
head, ” casting serious doubt on Freels's story
that her husband “was threatening her with a knife and
that she only acted in self-defense.” (Id.
(internal quotation marks omitted).)[6] Judge Warner found Freels
guilty of first-degree murder and imposed a mandatory
sentence of life without parole. (Id.)
Freels
appealed Judge Warner's denial of her request to
represent herself to the Colorado Court of Appeals
(“CCA”). (Id.) In an unpublished
disposition dated June 30, 2011, the CCA affirmed Judge
Warner, but on alternate grounds. Instead of upholding Judge
Warner's decision that Freels's request had been made
to create delay, the CCA said that Freels had not clearly and
unequivocally demanded to proceed pro se, and so was
not entitled to proceed pro se under the relevant
case law. (ECF No. 12-4 at 15- 21.)
After
the Colorado Supreme Court denied review of the CCA decision,
Freels began state postconviction proceedings. (ECF No. 34 at
5.) She argued that Mr. Doniger had been ineffective for, as
relevant here, failing to advise her that Judge Warner might
deny her self-representation request if not timely presented,
and failing to timely bring the self-representation issue to
Judge Warner's attention. (Id.)[7] The Hon. Robert
W. Kiesnowski, Adams County District Judge, presided over
Freels's postconviction proceedings at the trial court
level. (See Postconviction Review Order (“PCR
Order”) at 16.)[8] He took testimony from Freels and Mr.
Doniger and found Freels not credible to the extent she
asserted that she had been discussing self-representation
with Mr. Doniger throughout the five months between his
appointment by Judge Warner and the week before trial.
(Id. at 10-12.) Rather, said Judge Kiesnowski,
Freels's “decision to represent herself” had
been ...