Shea v. Raemisch ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 12, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DANNY SHEA,
Petitioner - Appellant,
v. No. 16-1406
(D.C. No. 1:15-CV-02354-WJM)
RICK RAEMISCH, Executive Director, (D. Colo.)
CDOC; THE ATTORNEY GENERAL OF
THE STATE OF COLORADO,
Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
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Danny Shea, a Colorado state prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas
petition. He also seeks leave to proceed in forma pauperis (IFP). We grant Shea’s IFP
motion, but we deny his COA request and dismiss this matter.
Shea was convicted after a jury trial of violating the Colorado Organized Crime
Control Act (COCCA), conspiring to commit second degree assault, tampering with a
witness, and two counts of conspiring to distribute a Schedule II controlled substance.
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
The trial court adjudicated Shea a habitual criminal under Colo. Rev. Stat. § 18-1.3-801
and sentenced him to a term of 112 years in prison.
The Colorado Court of Appeals (CCA) affirmed Shea’s convictions and part of his
sentence, but remanded for resentencing on the drug conspiracy counts. The trial court
modified Shea’s sentence on remand. Shea subsequently filed a post-conviction motion
for relief under Colo. Crim. Pro. R. 35(c). The trial court denied the Rule 35(c) motion,
and the CCA affirmed the denial. The Colorado Supreme Court denied Shea’s petition
for a writ of certiorari. Shea then filed his § 2254 habeas petition. The district court
denied habeas relief and denied Shea’s request for a COA.
Shea now seeks to appeal the district court’s denial of his habeas petition. To do
so, he must first obtain a COA. 28 U.S.C. § 2253(c)(1)(A). We will grant a COA only if
Shea makes “a substantial showing of the denial of a constitutional right.” See id.
§ 2253(c)(2). To meet this standard, Shea must “show[] that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
omitted).
Shea asserted in his habeas petition that he received ineffective assistance of trial
counsel in violation of his Sixth Amendment rights and raised numerous sub-claims
related to counsel’s alleged deficient performance. He argued that counsel was
constitutionally ineffective for: (1) admitting guilt in the opening statement;
(2) abandoning a clearly viable defense of duress; (3) failing to submit supporting
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documentation to show Shea was indigent and obtain an investigator; (4) failing to
request a modified Allen instruction; (5) failing to argue that there was insufficient
evidence to convict him of being a habitual criminal; (6) failing to properly challenge a
violation of Colorado’s Uniform Mandatory Disposition of Detainers Act; and (7) failing
to call an available expert witness and stipulating to testimony of a witness.
The CCA rejected these claims on the merits. In order to obtain federal habeas
relief, Shea must show that the state court’s rejection of these claims was contrary to, or
involved an unreasonable application of, clearly established federal law or was based on
an unreasonable determination of the facts in light of the record before the state court.
28 U.S.C. § 2254(d). In a thorough, well-reasoned order, the district court addressed the
CCA’s treatment of each of Shea’s constitutional claims and determined Shea wasn’t
entitled to habeas relief.
We have reviewed Shea’s arguments, the appellate record, the CCA’s decision, the
district court’s order denying habeas relief, and the applicable law. Based on this review,
we conclude Shea hasn’t demonstrated that reasonable jurists would debate the
correctness of the district court’s resolution of his petition. We therefore deny Shea’s
request for a COA and dismiss this matter. We grant Shea’s IFP motion.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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