Barker v. Raemisch ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 17, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
FREDERICK BARKER,
Petitioner - Appellant,
v. No. 18-1251
(D.C. No. 1:15-CV-00595-RPM)
RICK RAEMISCH, Executive Director, (D. Colo.)
Colorado Dept. of Corrections; TRAVIS
TRANNI, Warden, Colorado State
Penitentiary; CYNTHIA COFFMAN,
Attorney General, State of Colorado,
Respondents - Appellees.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
_________________________________
Frederick Barker, a Colorado state prisoner appearing pro se, seeks a
certificate of appealability (“COA”) to challenge the district court’s denial of his
28 U.S.C. § 2254 petition for post-conviction relief. We deny his application for a
COA.
*
The case is therefore ordered submitted without oral argument. This order
and judgment is not binding precedent, except under the doctrines of law of the case,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.
I. Background
A jury convicted Frederick Barker of two counts of felony murder, one count
of second degree murder, and two counts of aggravated robbery in the District Court
for the City and County of Denver, Colorado. The state court sentenced Barker to
two consecutive terms of life in prison without parole. The Colorado Court of
Appeals (“CCA”) affirmed the convictions on direct appeal.
Barker then filed a pro se motion for post-conviction relief pursuant to
Colorado Rule of Criminal Procedure (“Rule”) 35(c). The district court denied relief,
and the CCA affirmed.
With assistance of counsel, Barker filed an Application for a Writ of Habeas
Corpus in the United States District Court for the District of Colorado. There, Barker
claimed violations of, among other things, his Sixth Amendment rights. Specifically,
Barker alleged his trial counsel was ineffective because counsel failed to: (1) retain
an expert to analyze a tape recording; (2) properly raise and preserve Barker’s right
to confront witnesses; and (3) object to the joinder of two cases. The district court
denied Barker’s Application for a Writ of Habeas Corpus. The district court also
declined to issue Barker a COA, concluding that Barker did not make a substantial
showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
Barker, again proceeding pro se, appeals the district court’s denial of a COA.
He claims his Sixth Amendment rights were denied through: (1) ineffective
assistance of trial and appellate counsel, and (2) denial of post-conviction counsel.
Barker specifically alleges that trial counsel failed to advise him of his right to offer
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relevant evidence regarding the voluntariness of his confession, prevented him from
testifying, failed to investigate evidence that could have corroborated his defense,
and failed to move to dismiss the case or move for sanctions after alleged violations
of his right to a speedy trial. Barker further contends his appellate counsel was
ineffective when counsel failed to appeal the trial court’s refusal to instruct the jury
on an alibi defense.
II. Standard of Review
A COA is a jurisdictional prerequisite to our review of a habeas application.
28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Under
the Antiterrorism and Effective Death Penalty Act (“AEDPA”), “[w]e will issue a
COA ‘only if the applicant has made a substantial showing of the denial of a
constitutional right.’” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009)
(quoting 28 U.S.C. § 2253(c)(2)). Under this standard, “the applicant 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.’” United States v.
Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). Our “inquiry does not require [a] full consideration of the factual
or legal bases adduced in support of the claims,” but rather “an overview of the
claims” and “a general assessment of their merits.” Miller-El, 537 U.S. at 336.
“Under AEDPA, we may grant an application for a writ of habeas corpus on
behalf of an individual in state custody on a claim that was adjudicated on the merits
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in the state court only if the state court’s decision ‘was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,’ or ‘was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.’”
Gonzales v. Hartley, 397 F. App’x 483, 486 (10th Cir. 2010) (quoting 28 U.S.C. §
2254(d)(1)(2)).
III. Analysis
A. Claims Barker failed to raise in his § 2254 application are forfeited.
In his application to this Court for a COA, Barker abandons certain arguments
made below and advances new theories in an attempt to secure a COA. Specifically,
Barker attempts to raise the following ineffective assistance of counsel arguments for
the first time on appeal: (1) that trial counsel failed to advise him of his right to offer
relevant evidence regarding the voluntariness of his confession, prevented him from
testifying, and failed to investigate evidence that could have corroborated his
defense, and (2) that appellate counsel failed to appeal the trial court’s refusal to
instruct the jury on an alibi defense.
Claims not raised in the initial § 2254 application are considered forfeited.
See United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012). And Barker does
not request on appeal that we review these claims for plain error. Thus, we deny his
request for a COA on these forfeited claims. Richison v. Ernest Grp., Inc., 634 F.3d
1123, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain error and its application
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on appeal—surely marks the end of the road for an argument for reversal not first
presented to the district court.”).
B. Barker’s remaining claims do not support the grant of a COA.
Barker has two remaining claims that he made in his original § 2254
application: an ineffective assistance of counsel claim based on failure to object to an
alleged speedy trial violation and a post-conviction denial of counsel claim. 1 For the
reasons that follow, neither claim justifies the grant of a COA in this case.
1. Because Barker did not raise his speedy trial violation claim in his Rule
35(c) motion, he cannot raise it for the first time on appeal to this court.
Barker argues his trial counsel was constitutionally ineffective for failing to
object to an alleged speedy trial violation. This claim was raised on appeal of the
denial of the Rule 35(c) motion, but the CCA, citing People v. Goldman, 923 P.2d
374, 375 (Colo. App. 1996), refused to address it because Barker did not properly
raise it in his Rule 35(c) motion.
A prisoner who fails to satisfy state procedural requirements forfeits his right
to present his claim in federal habeas. Murray v. Carrier, 477 U.S. 478, 485–92,
(1986). The procedural default doctrine applies regardless of whether the default
occurred at trial, on appeal, or on state collateral review. Edwards v. Carpenter, 529
U.S. 446, 451 (2000). Procedural default is an independent and adequate state
ground for denying habeas relief. Hain v. Gibson, 287 F.3d 1224, 1230 (10th Cir.
The district court did not address either of Barker’s remaining claims,
1
although he argued these claims in his Application for a Writ of Habeas Corpus.
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2002). It prevents us from reviewing Barker’s defaulted claim unless he can
demonstrate both “cause for the default and actual prejudice as a result of the alleged
violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
A defendant may show cause for setting aside a procedural default in his first
petition for post-conviction relief with respect to an ineffective assistance of trial
counsel claim raised in that petition when the defendant shows: (1) either (a) “under
state law, claims of ineffective assistance of counsel must be raised in an initial-
review collateral proceeding,” Martinez v. Ryan, 566 U.S. 1, 17 (2012), or (b) the
“state procedural framework, by reason of its design and operation, makes it highly
unlikely in a typical case that a defendant will have a meaningful opportunity to raise
a claim of ineffective assistance of trial counsel on direct appeal,” Trevino v. Thaler,
569 U.S. 413, 429 (2013)); 2 (2) either (a) “the state courts did not appoint counsel in
the initial-review collateral proceeding for a claim of ineffective assistance at trial,”
Martinez, 566 U.S. at 14, or (b) “appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was ineffective under the
standards of Strickland v. Washington, 466 U.S. 668 (1984),” id.; and (3) “the
underlying ineffective-assistance-of-counsel claim is a substantial one, which is to
say that . . . the claim has some merit.” Id.2
“Colorado courts have expressed a preference for defendants to raise
ineffective assistance of trial counsel claims in collateral review proceedings, [but]
they do not require defendants to do so.” Linzy v. Faulk, 602 F. App’x 701, 702 n.3
(10th Cir. 2015) (internal quotation marks omitted). Thus, in these circumstances
defendants out of Colorado fall within the rule articulated in Trevino. Id.6
Assuming for the sake of this appeal that Barker can satisfy the first two
prongs, he cannot satisfy the third prong.
To demonstrate ineffective assistance of counsel a petitioner must establish
both (1) that his counsel’s performance fell below an objective standard of
reasonableness, and (2) that there is a reasonable probability that, but for counsel’s
unreasonable errors, the outcome of his appeal would have been different.
Strickland, 466 U.S. at 687.
Barker cannot establish the third prong—that his claim has some merit—
because he fails to meet the first prong of Strickland. Barker contends his counsel
performed deficiently because counsel requested a continuance instead of objecting
and moving for a new trial after learning the prosecution did not timely disclose
certain evidence. Without more, his bare assertion does not satisfy Strickland’s first
prong. We have held that failure to make a speedy trial objection and instead move
for a continuance does not make counsel’s performance fall “below an objective
standard of reasonableness” as measured by “prevailing professional norms.” United
States v. Rushin, 642 F.3d 1299, 1309 (10th Cir. 2011). In developing trial strategy,
“counsel is entitled to balance limited resources in accord with effective trial tactics
and strategies, or, in other words, to critically undertake a cost/benefit analysis of any
proposed course of action.” Id. at 1308 (internal quotations omitted) (emphasis in
original).
When counsel focuses on some issues to the exclusion of others, there is
a strong presumption that he did so for tactical reasons rather than
through sheer neglect . . . . That presumption has particular force where
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[as here] a petitioner bases his ineffective-assistance claim solely on the
trial record, creating a situation in which a court may have no way of
knowing whether a seemingly unusual or misguided action by counsel
had a sound strategic motive.
Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam) (internal quotations
omitted).
Barker cannot show that his counsel’s request for a continuance fell below an
objective standard of reasonableness. Therefore, he cannot establish that his claim
has some merit and he cannot show cause. Thus, he cannot overcome the procedural
default and is not entitled to a COA with respect to this issue.
2. Barker’s claim pursuant to Rule 35(c) concerns a question of state law that
is unreviewable in this application and of federal law that is not clearly
established.
Barker also argues that the Sixth Amendment and Colorado statute entitled
him to appointment of post-conviction counsel when he filed petitions for relief
pursuant to Rule 35(c). The CCA held that this argument was improperly raised and
denied it on the merits.
Under AEDPA “a COA may issue only when the applicant ‘has made a
substantial showing of the denial of a constitutional right.’” Taylor, 454 F.3d at 1078(quoting 28 U.S.C. § 2253(c)(2) (emphasis added)). As discussed above, Barker’s
state law claim does not give rise to the issuance of a COA.
Turning to Barker’s constitutional claim, generally “[t]here is no constitutional
right to an attorney in state post-conviction proceedings.” Coleman, 501 U.S. at 752.
In Martinez, the Supreme Court left open the question of whether a constitutional
8
right to counsel exists when a defendant filed a petition for post-conviction relief
asserting a claim for ineffective assistance of trial counsel in a state where a
defendant may only bring an ineffective assistance of counsel claim in such a
petition. Martinez, 566 U.S. at 9 (“This is not the case, however, to resolve whether
that exception [for ineffective assistance of counsel claims that may only be raised in
a petition for post-conviction relief] exists as a constitutional matter.”). The Supreme
Court has not revisited that issue since Martinez. Under the circumstances, no
reasonable jurist could debate whether the CCA’s determination that Barker had no
constitutional right to counsel was contrary to clearly established Federal law, as
determined by the Supreme Court of the United States. Accordingly, Barker is also
not entitled to a COA with respect to this issue.
IV. Conclusion
For the foregoing reasons, Barker’s application for a COA is DENIED. 3
Entered for the Court
Joel M. Carson III
Circuit Judge
3
Because we deny the application for a COA, we additionally deny Barker’s
request to proceed in forma pauperis.
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