Hobdy v. Raemisch , 916 F.3d 863 ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 19, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
CHRISTOPHER HOBDY,
Petitioner - Appellee,
v. No. 18-1047
RICK RAEMISCH, Executive Director,
Colorado Department of Corrections; PHIL
WEISER, Attorney General for State of
Colorado,
Respondents - Appellants.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CV-01745-RPM)
_________________________________
Lisa K. Michaels, Assistant Attorney General (Phil Weiser, Attorney General, with her
on the briefs), Criminal Appeals Section, Office of the Attorney General for the State of
Colorado, Denver, Colorado, appearing for Appellants.
Kathleen A. Lord, Lord Law Firm, LLC, Denver, Colorado, appearing for Appellee.
_________________________________
Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________

Pursuant to Fed. R. App. P. 43(c)(2), Phil Weiser is substituted for Cynthia
Coffman as an Appellant in this case.
Petitioner Christopher Hobdy, a Colorado state prisoner serving a lengthy
sentence for first degree assault and aggravated robbery, filed an application for
federal habeas relief pursuant to 28 U.S.C. § 2254. The district court granted
Hobdy’s application and ordered the State of Colorado to retry him within ninety
days. Respondents Rick Raemisch, the Executive Director of the Colorado
Department of Corrections, and Phil Weiser, the Attorney General for the State of
Colorado, now appeal from the district court’s decision. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we reverse the decision of the district court and
remand with directions to enter judgment in favor of respondents.
I
The underlying facts of Hobdy’s case
The Colorado Court of Appeals (CCA), in addressing Hobdy’s direct appeal,
summarized the underlying facts of Hobdy’s case:
The criminal charges against [Hobdy] arose from an assault on the
victim[, Jerry Williams,] outside a convenience store [on May 15,
1997]. The victim was a police officer [with the City of Aurora,
Colorado,] who had a terminal illness and was living in a hospice at the
time of the assault.
The victim had arrived at the store late at night [shortly after 1 a.m.] to
purchase a few items. After leaving the store, he used the outside
payphone. While the victim was on the phone, [Hobdy], who had made
a purchase at the store shortly after the victim had left the store,
approached the victim and asked him for a quarter. The victim said he
did not have a quarter, and [Hobdy] then went back into the store.
After making his phone call, the victim began walking back to the
hospice. He heard footsteps behind him and saw that [Hobdy] was
following him. [Hobdy] uttered a racial slur [i.e., “nigger”] and told the
victim, “I’m going to get you.” He then hit the victim with a shovel.
2
The victim fell to the ground, and his possessions fell out of his pocket.
[Hobdy] then picked up the items and ran away.
The victim then went back into the store and told the clerk to call 911.
Believing that his assailant would be depicted on the store’s video
surveillance tape, the victim asked the clerk to retrieve the tape. He
provided police a description of his assailant.
The following day, the police showed [the victim] three still
photographs they had made of [Hobdy] from the surveillance video
tape. They did not know his identity at that time. From the photos, the
victim identified [Hobdy] as his assailant.
State v. Hobdy, No. 98CA1361 at 1–2 (Colo. App. Mar. 30, 2000) (Hobdy I),
available at Aplt. App., Vol. 2 at 13.
The victim, Williams, gave the police an audiotaped interview the day after the
attack.
Hobdy’s state trial proceedings
On May 22, 1997, Hobdy was charged by information in Arapahoe County
District Court with two counts of attempted first degree murder (one count alleged
“after deliberation” and the second count alleged “felony murder”), one count of first
degree assault, and one count of aggravated robbery. Aplt. App., Vol. 3 at 24.
On the same day the information was filed, the prosecution filed a motion
seeking permission to depose Williams who, the motion noted, was “residing in a
hospice and . . . dying of cancer.” Id. at 25. The state trial court granted the motion
and the deposition of Williams was taken in May and June of 1997. Williams died in
August of 1997.
3
The case was tried to a jury on March 9–20, 1998. The prosecution’s evidence
included, among other things, the audiotaped interview that Williams gave to police
the day after the attack and the transcript of Williams’ deposition, which was read to
the jury.
Hobdy’s “defense [at trial] was misidentification.” Id., Vol. 2 at 168. Hobdy
admitted being in the convenience store that evening, but he denied attacking
Williams. According to Hobdy, he had been drinking at a nearby bar, left briefly to
go to the convenience store, and then returned to the bar to meet his friends. “The
thrust of [Hobdy’s] defense was that due to the substantial pain medication the victim
was taking at the time, any identification or testimony on his part was not credible.”
Id., Vol. 1 at 195. “The victim was established to be regularly taking Morphine,
Haldol, Ativan, Robaxin, Dilantin, Benadryl, Decadron, and Reglan.” Id.“To rebut this defense, the [State] called two medical doctors,” one of whom
“treated the victim at the emergency room after the attack, and the other [of whom]
was the victim’s regular oncologist.” Id. “Together, they opined that the victim’s
mental faculties were not affected by the medications the victim was taking at the
time of the attack such that they would impair his ability to make a positive
identification.” Id. at 196. Hobdy “did not offer his own medical expert to refute the
testimony of the two doctors called by the [State].” Id. at 169. But Hobdy’s “[t]rial
counsel did cross examine the witnesses, based on medical records and drug
information, and also elicited specific examples of the victim suffering from
4
hallucinations, confusion, drowsiness, and other impairments related to his
medications.” Id.The jury deliberations began later in the day on March 18, 1998, and continued
through the next two days, March 19–20, 1998. During those deliberations, the jury
sent several notes to the state trial court. To begin with, at approximately 11:35 a.m.
on the first full day of deliberations—March 19, 1998—the jury sent a note to the
trial court asking for permission to listen to the 911 tape recording and to watch the
7-11 surveillance video. The state trial court granted both of those requests.
Later that same day, at approximately 3:37 p.m., the jury sent a note to the
state trial court asking two questions. The first question stated: “May we look at
Jerry William’s [sic] deposition testimony?” Id., Vol. 4 at 147, 152–53. The second
question said:
We are struggling with coming to agreement with the creditability [sic]
of Jerry Williams’ testimony. We have been debating this issue for
most of the day. Since this testimony is key to coming to a concensus
[sic] we believe that coming to a verdict will be difficult. Convictions
remain firm on both sides. Due to evidence provided and its
interpretation by individual jurors we are concerned that a verdict may
not be attainable.
Id. at 149, 153.
The district court responded to the jury’s first question with a written answer
stating, “you may request in writing that the entire Jerry Williams’ depositions be
read to you in Court as was done during the trial.” Id. at 160. After receiving that
written answer, the jury contacted the court “and indicated they [we]re waiting for an
answer on the second question.” Id. at 160–61. The state trial court then responded
5
to the jury’s second question by sending them back a written note stating: “The court
must ask you whether you are making any progress towards a unanimous verdict or
are deadlocked?” Id. at 149, 163. The jury responded with one word: “Deadlocked.”
Id. at 149. After receiving this response, the state trial court read the modified Allen
instruction to the jury and sent them back to deliberate. Id. at 164–65.
Later that afternoon, the jury sent a note to the trial court outlining its “[p]lan
for” the next day. Id. at 151. The note stated that the plan was to “1) hear taped
interview of Jerry Williams” and “2) hear all three depositions of Jerry Williams read
if possible by impartial parties.” Id. The state trial court responded that it “w[ould]
attempt to accommodate [their] request” the following day, March 20, 1998. Id.At the outset of the following day, Friday, March 20, 1998, the state trial court
allowed the jury to first “hear the taped interview of Jerry Williams.” Id. at 183. The
state trial court then arranged for several people to read Williams’ deposition
transcripts. After that reading was complete, the jury was sent back to deliberate.
At some point that afternoon, the jury sent out a note asking, “Can we have the
large sign that was in the closing arguments re: Reasonable doubt? Elements of each
crime?” Id. at 203. The state trial court responded: “The information requested is
contained in the instructions of the court – if you need additional copies of some or
all the instructions please specify by number.” Id.The jury then sent out another note stating, “We want the testimony of the
person that was on the stand when they interjected the tape of Chris Hobdy & also
6
WANT, NeeD [sic] to hear the tape of defendant. Thank you.” Id. at 204 (emphasis
in original). The state trial court responded to this note by stating:
The court reporter who reported Detective Days [sic] testimony while a
portion of Chris Hodby [sic] tape was played is not here and that
testimony is not available until Monday. The only request that the court
can grant today is to play that portion of Chris Hobdy’s tape that was
played for you during the trial.
Id. at 205. The jury responded: “We would like to listen to the taped interview
today.” Id. The state trial court granted that request.
According to the record, the jury also, at some unknown point in the
deliberations, wrote a note to the court that said:
Deliberations have broken down. We find ourselves attacking each
other not allowing the [sic] us to move toward a verdict. We do not
know where to go from here. We have examined all the evidence given
to us and still are deadlocked. We don’t know what else to look at.
Id., Vol. 2 at 8. It is unclear if this “attacking each other” note was in fact delivered
by the jury to the state trial court and, if so, when that occurred.
At approximately 4:50 p.m. on March 20, 1998, the state trial court spoke to
the jurors about recessing for the weekend and reconvening the following Monday.
Id., Vol. 4 at 217–18. The jury “indicated they’d like some more time,” so the state
trial court granted that request. Id. at 218. Later that day—it is unclear from the
record precisely what time—the jury returned with a verdict. The jury found Hobdy
not guilty of the two attempted murder charges. But it convicted him of first degree
assault and aggravated robbery. The jury also found that Hobdy “did use or possess
7
and threaten the use of a deadly weapon during the commission of the crime or
during the immediate flight therefrom.” Id. at 220.
The state trial court sentenced Hobdy to consecutive terms of imprisonment of
twenty-eight years’ and thirty years’ imprisonment for the two counts of conviction,
resulting in an aggregate sentence of fifty-eight years.
Hobdy’s direct appeal
Hobdy filed a direct appeal, asserting five general propositions of error. The
CCA affirmed Hobdy’s convictions in an unpublished opinion issued on March 30,
2000. Hobdy I, No. 98CA1361 at 15. Hobdy filed a petition for writ of certiorari
with the Colorado Supreme Court, but that was denied on September 5, 2000. There
is no indication in the record that Hobdy filed a petition for writ of certiorari with the
United States Supreme Court.
Hobdy’s Rule 35(b) motion for reduction of sentence
On December 13, 2000, Hobdy filed a motion for reduction of sentence
pursuant to Colo. R. Crim. P. 35(b). The state trial court denied that motion on
December 29, 2000. Hobdy did not appeal from that ruling.
Hobdy’s Rule 35(c) postconviction proceeding
On August 20, 2001, Hobdy filed a motion for state postconviction relief
pursuant to Colo. R. Crim. P. 35(c) alleging that his trial counsel was ineffective in
the following respects: (1) failing to adequately investigate whether the victim was
competent to testify because of his terminal illness and pain medication; (2) failing to
determine whether the victim was competent to make a proper identification at the
8
time of the assault; (3) failing to consult experts skilled in eyewitness identification
and medication and pain issues, including an intoxication expert; (4) failing to seek a
change of venue due to the fact that the victim worked as a police officer in the same
jurisdiction in which Hobdy was tried; (5) failing to pursue a viable alternate suspect
theory; (6) failing to adequately investigate alibi witnesses; (7) failing to account for
the difficulties inherent in cross-racial identifications; and (8) failing to object when
the state trial court, upon being advised by the jury that it was deadlocked, did not
make the inquiries required under People v. Lewis, 676 P.2d 682 (Colo. 1984). Aplt.
App., Vol. 2 at 30, 141. Hobdy also stated in his motion that he wanted to reserve
the right to supplement the motion.
In July of 2005, Hobdy, through counsel, filed an amended motion for
postconviction relief pursuant to Colo. R. Crim. P. 35(c). The amended motion
included three new claims: (1) “[f]ailure of appellate counsel to advise the [CCA]
that the trial court abused its discretion in finding Williams competent to testify,” id.
at 88; (2) “[f]ailure of appellate counsel . . . to advise the [CCA] that there [wa]s no
transcript establishing that the trial court ever acknowledged the jury’s [‘attacking
each other’] note” or made “Hobdy and his counsel . . . aware of” the note and,
relatedly, failure of appellate counsel to argue that “it [wa]s structural error for [the]
trial court to fail to make an [sic] preserve a record” regarding that jury note, id.at 92–93; and (3) “Hobdy received an enhanced sentence . . . in violation of the Sixth
Amendment jury trial guarantee,” as outlined by the Supreme Court in Blakely v.
9
Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000),
id. at 100.
The state district court issued a decision on September 19, 2006, denying
Hobdy’s amended motion for relief under Colo. R. Crim. P. 35(c). The state district
court concluded that the amended motion was successive and that, in addition,
Blakely and Apprendi were inapplicable to Hobdy’s sentence.
Hobdy appealed to the CCA. On September 25, 2008, the CCA issued an
opinion concluding that Hobdy’s original Rule 35(c) motion was timely, had never
been ruled on by the state district court, and that Hobdy was entitled to an evidentiary
hearing on the ineffective assistance of trial counsel claims asserted in the original
motion. The CCA also concluded that the claims asserted in Hobdy’s amended
motion were time-barred unless Hobdy could establish justifiable excuse or excusable
neglect.
On remand, the state district court held an evidentiary hearing and heard
testimony from three defense witnesses: an expert in psychopharmacology, a legal
expert in the field of postconviction relief, and the lawyer who drafted and filed the
amended Rule 35(c) motion on Hobdy’s behalf.
Following the hearing, the state district court issued a written order denying
Hobdy’s Rule 35(c) motion. At the outset of its order, the state district court noted
that Hobdy effectively abandoned four of the ineffective assistance of trial counsel
claims asserted in his original Rule 35(c) motion—failure to challenge “venue,
failure to raise alternate suspect theories, inadequate alibi witness investigation, and
10
failure to account for cross-racial identification”—by failing to address those issues
in subsequent briefing or at the evidentiary hearing. Id. at 166. The state district
court in turn concluded that the three new claims asserted by Hobdy in his amended
Rule 35(c) motion did not “meet the justifiable excuse or excusable neglect
exception” and were therefore time-barred. Id. at 169. In reaching this conclusion,
the state district court found that “[t]he ‘attacking each other’ note [from the jury]
appeared in the file and the record before the [CCA],” the CCA thus “had the benefit
of the jury notes, including the ‘attacking each other’ note” when it resolved Hobdy’s
direct appeal, and that the CCA “addressed all of the notes in question.” Id.at 170–
71. The state district court further concluded “that there [wa]s no justifiable excuse
or excusable neglect for” the “untimely filing [of] the supplement to the original Rule
35(c)” motion, and that, consequently, “all additional issues contained in the
[amended Rule 35(c) motion], including any issues surrounding the [‘attacking each
other’] jury note, [we]re time-barred . . . and w[ould] not be further considered.” Id.
at 171–72.
As for the claim asserted by Hobdy in his original Rule 35(c) motion that trial
counsel was ineffective for failing to retain and present an expert in
psychopharmacology, the state district court concluded “that failing to retain” such
an “expert fell below the performance of reasonably effective assistance,” but that
this “error on the part of trial counsel” did not “create[] any real probability that the
jury would not have convicted” Hobdy or otherwise “undermine[d] th[e] Court’s
confidence in the jury’s verdict.” Id. at 174. The court explained “that because the
11
type and extent of medications taken by the victim were made known to the jury, the
lack of additional expert testimony from” the defense “d[id] not create a reasonable
probability of a different result in the original trial.” Id. at 172.
Hobdy appealed to the CCA. On August 14, 2014, the CCA issued an
unpublished opinion affirming the state district court’s order. The CCA “conclude[d]
that the record support[ed] the postconviction court’s determination that defendant
did not prove that, had [trial] counsel retained an expert [in psychopharmacology] . . .
to testify at trial, there was a reasonable probability that the result of the proceeding
would have been different.” Id. at 234. The CCA explained that it “reach[ed] this
conclusion because [Hobdy’s] first attorney, through cross-examination, submitted to
the jury a great deal of the information about which the psychopharmacologist
testified at the remand hearing” on the Rule 35(c) motion. Id. The CCA also noted
that the jury was able to watch the surveillance tape from the convenience store and
listen to the recording of the 911 call and, in turn, “evaluat[e] the victim’s mental
acuity at that time” based on this evidence. Id. at 237. In addition, the CCA noted
that “[t]he jury was aware of the medications that the victim was taking; it heard
about their side effects; it learned of their effect on the victim; and, although it
‘strugg[led]’ to ‘agree[]’ about the victim’s credibility, it obviously overcame that
struggle and reached an agreement.” Id. at 238. “Under these circumstances,” the
CCA “conclude[d] that there [wa]s not a reasonable probability, meaning a
probability sufficient to undermine [its] confidence in the outcome, that had the
additional information from an expert [psychopharmacologist] . . . been presented to
12
the jury, the result would have been different.” Id. at 238–39. The CCA further
stated: “Defendant did not establish that there was a reasonable probability that such
testimony would have been the ‘ounce that makes the pound’ that would have led the
jury to acquit instead of to convict.” Id. at 239. The CCA thus concluded that
Hobdy’s “ineffective assistance claim as to his first attorney fail[ed].” Id. at 240.
The CCA also rejected Hobdy’s challenge to the state district court’s
conclusion that “there was no justifiable excuse or excusable neglect for the untimely
filing of his [amended] postconviction motion.” Id. The CCA noted that the
amended postconviction motion was “presumptively time barred” under Colorado
law. Id. at 243. And the CCA agreed with the state district court that there were no
facts or circumstances that provided a justifiable excuse or excusable neglect to
overcome that presumptive time bar. In particular, the CCA rejected Hobdy’s
argument that his fourth attorney, i.e., the one who prepared and filed the amended
postconviction motion, was ineffective. The CCA noted that “[t]he fourth attorney
did not start working on the case until 2004, which was after the three-year period for
filing postconviction motions had lapsed.” Id. at 244–45. The CCA concluded that
“the fourth attorney could not have been ineffective” for the reason that “[t]he fourth
attorney could not . . . have filed a timely second postconviction motion.” Id. at 245.
Hobdy filed a petition for writ of certiorari with the Colorado Supreme Court.
That petition was denied on March 2, 2015.
Hobdy’s filing of his federal habeas petition
13
On August 12, 2015, Hobdy, through counsel, initiated these federal habeas
proceedings by filing an application for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The application alleged four claims for relief. 1 Claim One alleged
ineffective assistance of trial counsel for failing to consult with and present testimony
from an expert in psychopharmacology. Claim Two alleged that Hobdy was “denied
his right to counsel, to be present, and to a fair trial” resulting from the state trial
court’s “failure to disclose the ‘attacking each other’ . . . note from the jury.” Aplt.
App., Vol. 1 at 31. Claim Three alleged ineffective assistance of appellate counsel
for failing “to (a) ensure a complete record on appeal (b) raise the claims set forth in
Claim Two, and (c) alert the appellate court that the trial court had not told the
parties about the jury note that stated the jurors were ‘attacking each other’ and were
‘still deadlocked.’” Id. at 32. The final claim for relief alleged cumulative error. Id.
at 34.
On November 30, 2017, the district court issued a memorandum opinion and
order granting federal habeas relief in favor of Hobdy. The opinion and order began
by addressing Hobdy’s ineffective assistance of trial counsel claim. In analyzing this
claim, the district court noted that the state district court had concluded that Hobdy’s
trial counsel’s performance on this issue amounted to incompetence under prevailing
standards, and that the CCA had silently affirmed that conclusion. Consequently, the
1
The application included three additional claims, but Hobdy withdrew those
claims before the district court could rule on them. Dist. Ct. Docket No. 41 at 9.
Thus, those claims are not at issue in this appeal.
14
district court concluded that it was “obliged to accept” what it described as this “final
determination” under 28 U.S.C. § 2254(e)(1). Id. at 198. The district court in turn
concluded that “[t]he only issue to be determined” was “whether the [CCA’s]
determination of no prejudice [wa]s contrary to or a misapplication of clearly
established law as determined by the Supreme Court or a decision based on an
unreasonable determination of the facts in light of the evidence presented in the state
court proceeding.” Id. (citing 28 U.S.C. § 2254(d)(1) and (2)). The district court
concluded “that the [CCA] incorrectly considered it necessary for [Hobdy] to show
that the different result was required to be an acquittal.” Id. Clearly established
Supreme Court precedent, the district court concluded, “does not require a defendant
to establish a reasonable probability that the jury would have acquitted, but rather
that the result of the proceeding would have been different.” Id. Instead, the district
court stated, “[t]here [we]re other possible outcomes, including a hung jury, which
would have been more favorable for Hobdy.” Id.Continuing, the district court concluded “there [wa]s a reasonable probability
there would have been a different result absent [trial] counsel’s ineffective
assistance.” Id. The district court explained: “There would in all probability have
been a mistrial based on a hung jury—that is at least one juror having a reasonable
doubt as to the credibility of the testimony of . . . Williams.” Id. at 198–99. In
arriving at this conclusion, the district court noted that “[t]here was no evidence to
corroborate [Williams’] story” about what had occurred, and “[t]he jury obviously
had great difficulty in making that determination as revealed in the notes to the
15
judge.” Id. at 199. The district court further concluded that “[t]he scenario described
by the [CCA] in the opinion on direct appeal [wa]s incomplete.” Id. In particular,
the district court noted that “[t]he record contain[ed] a note” from the jury indicating
it was deadlocked “with no indication of when or if it was received by the [state trial]
court and if there was any response to it.” Id. at 200. The district court stated that
“defense counsel was not made aware of [the note] until post conviction
proceedings.” Id. In addition, the district court noted that at approximately 4:50
p.m. on the last day of the jury’s deliberations, the state trial judge met with the jury
about recessing for the weekend and reconvening the following Monday, but that he
did so “outside of counsel’s presence and without making a record.” Id. “Thus,” the
district court noted, “there [wa]s no way to know what communications occurred
between the [state trial] judge and the jurors.” Id.The district court concluded that “[t]his haphazard handling of jury questions,
failure to inform counsel of a jury communication, and failure to make a proper
record of exchanges between the judge and jury [wa]s structural error which
require[d] vacation of the conviction.” Id. (citing United States v. Cronic, 466 U.S.
648, 659 n.25 (1984)). The district court then stated: “For the foregoing reasons, the
Court concludes that . . . Hobdy received ineffective assistance of counsel, in
violation of the Sixth Amendment, and [wa]s accordingly ‘in custody in violation of
the Constitution of the United States.’” Id. at 200–01 (quoting 28 U.S.C. § 2254(a)).
The district court concluded that Hobdy was “therefore entitled to habeas relief” and
that it was unnecessary for it “to consider the other claims and arguments submitted
16
in support of th[e] Application.” Id. at 201. The district court ordered “[t]he State of
Colorado [to] re-try . . . Hobdy on the charges upon which he was convicted within
90 days from the entry of judgment, failing which he shall be released from custody
on those convictions, which are vacated by this Court and upon which no further
proceedings shall be pursued.” Id.The district court entered judgment in the case on November 30, 2017.
On December 22, 2017, respondents filed three motions with the district court.
The first was a motion for clarification. Id. at 210. Respondents asserted in that
motion that “[t]he handling of one of the jury notes was raised [by Hobdy] as a
separate claim in the habeas application, specifically, claim two, which alleged that
[Hobdy] ‘was denied his right to counsel, to be present, and to a fair trial . . . .” Id.
at 212. Respondents in turn noted that the district court’s decision “d[id] not
otherwise contain an explicit ruling on claim two,” even though it relied heavily on
the jury note issue in concluding that Hobdy was prejudiced by his counsel’s failure
to present testimony from an expert in psychopharmacology regarding the effects of
Williams’ medications on Williams’ cognitive abilities. Id. Respondents asserted
that “[i]t [wa]s unclear to [them] whether the quoted language from the order
regarding the handling of the jury questions was part of the prejudice analysis for
claim one or was a ruling on claim two.” Id. Respondents asserted that it was their
intention “to exercise their right to appeal,” and “they want[ed] to ensure that their
understanding of the court’s order [wa]s correct.” Id. Thus, respondents requested
that the district court “clarify whether it ruled on claim two.” Id. at 213.
17
The second motion filed by respondents was a motion for ruling on
outstanding claims. Respondents argued therein that, “[w]ithout a ruling on
[Hobdy’s] remaining claims,” the district court’s “order m[ight] not be a final,
appealable order, meaning that the court of appeals would lack jurisdiction to hear an
appeal.” Id. at 216. Consequently, respondents asked the district court to amend its
order to include language “deny[ing]” the remaining claims on the merits. Id. at 217.
The third and final motion filed by respondents was a motion to alter the order
and judgment. Respondents argued that the district court “was not required to adopt
the state court’s ruling on counsel’s performance” under the first prong of Strickland
v. Washington, 466 U.S. 668 (1984). Aplt. App., Vol. 1 at 222. Rather, respondents
argued, because the district court determined “that one of § 2254(d)’s exceptions had
been met, [Hobdy’s] claim, including the deficient performance prong, was subject to
de novo review.” Id. (citing Fry v. Pliler, 551 U.S. 112, 119 (2007), and Berghuis v.
Thompkins, 560 U.S. 370, 390 (2010)). Respondents also argued that “the record
support[ed] the conclusion that [Hobdy’s trial] counsel made a reasonable strategic
decision to elicit evidence of the effects of the victim’s medications on his memory
and ability to perceive from the victim’s medical providers and other lay witnesses.”
Id. at 223–24.
On January 5, 2018, the district court issued a two-page written order
addressing respondents’ three post-judgment motions. The order first stated that “the
Applicant was denied the assistance of trial counsel in responding to the jury’s
questions in violation of the Sixth Amendment as alleged in Claim Two.” Id. at 228.
18
The order in turn stated: “this Court agrees with the [state] district court’s
determination that the failure of the defense attorney to retain and present testimony
from a medical expert as to the effects of the victim’s intake of prescription
medications on his ability to perceive, recall and relate was below the standard of
care in violation of the first prong of Strickland.” Id. Lastly, the order stated “that
the Third Claim for Relief,” which asserted ineffective assistance of appellate
counsel, “[wa]s denied.”2 Id.
The district court issued an amended judgment that same day, January 5, 2018.
On January 10, 2018, respondents filed a motion seeking additional
clarification prior to appeal. Id. at 232. The motion “request[ed] that the [district
court] clarify whether it granted relief on Claim Two” in Hobdy’s application. Id.
at 234.
On January 11, 2018, the district court issued an order denying respondents’
motion for additional clarification. The order contained one sentence: “it should be
apparent to anyone reading the Order on Post-Judgment Motions (Doc. 70) that this
Court has ruled on the merits of Claim Two, that this violation of the Sixth
Amendment is an additional ground for granting the Writ of Habeas Corpus and that
the claim was not procedurally defaulted.” Id. at 236.
2
The district court’s order did not expressly mention the cumulative error
claim that was alleged in Hobdy’s application for federal habeas relief. But, because
the order expressly purported to address each of the three pending motions, we
construe the order as implicitly denying relief on the cumulative error claim.
19
Respondents filed a notice of appeal on February 2, 2018.
II
Respondents argue on appeal that the district court erred in granting federal
habeas relief to Hobdy on his “claims of ineffective assistance of counsel and denial
of the right to presence.” Aplt. Br. at 1. For the reasons outlined below, we agree.3
Standard of review
“The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
requires a state prisoner seeking federal habeas relief first to ‘exhaus[t] the remedies
available in the courts of the State.’” Kernan v. Hinojosa, 136 S. Ct. 1603, 1604
(2016) (per curiam) (quoting 28 U.S.C. § 2254(b)(1)(A)). “If the state courts
adjudicate the prisoner’s federal claim ‘on the merits,’ § 2254(d), then AEDPA
mandates deferential, rather than de novo, review.” Id. Specifically, we cannot grant
relief unless that adjudication:
(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 proceedings.
3
Respondents also argue that the district court abused its discretion when, in
the course of granting federal habeas relief to Hobdy, it barred the state from
conducting any retrial after a period of ninety days. Because we conclude that the
district court erred in granting federal habeas relief to Hobdy, it is unnecessary for us
to address this issue.
20
28 U.S.C. § 2254(d)(1)–(2).
“‘Clearly established Federal Law’ refers to the Supreme Court’s holdings, not
its dicta.” Wood v. Carpenter, 907 F.3d 1279, 1289 (10th Cir. 2018) (citing Williams
v. Taylor, 529 U.S. 362, 412 (2000)). “A state-court decision is only contrary to
clearly established federal law if it ‘arrives at a conclusion opposite to that reached
by’ the Supreme Court, or ‘decides a case differently’ than the Court on a ‘set of
materially indistinguishable facts.’” Id. (quoting Williams, 529 U.S. at 412–13).
“But a state court need not cite the Court’s cases or, for that matter, even be aware of
them.” Id. “So long as the state-court’s reasoning and result are not contrary to the
Court’s specific holdings, § 2254(d)(1) prohibits us from granting relief.” Id. (citing
Early v. Packer, 537 U.S. 3, 9 (2002) (per curiam)).
“A state court’s decision unreasonably applies federal law if it ‘identifies the
correct governing legal principle’ from the relevant Supreme Court decisions but
applies those principles in an objectively unreasonable manner.” Id. (quoting
Wiggins v. Smith, 539 U.S. 510, 520 (2003)). “Critically, an ‘unreasonable
application of federal law is different from an incorrect application of federal law.’”
Id. (quoting Williams, 529 U.S. at 410). “[A] state court’s application of federal law
is only unreasonable if ‘all fairminded jurists would agree the state court decision
was incorrect.’” Id. (quoting Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014)).
“Finally, a state-court decision unreasonably determines the facts if the state
court ‘plainly misapprehend[ed] or misstate[d] the record in making [its] findings,
and the misapprehension goes to a material factual issue that is central to petitioner’s
21
claim.’” Id. (quoting Byrd v. Workman, 645 F.3d 1159, 1170–72 (10th Cir. 2011)).
“But this ‘daunting standard’ will be ‘satisfied in relatively few cases.’” Id. (quoting
Byrd, 645 F.3d at 1172).
Ineffective assistance of trial counsel
Respondents first argue that the district court erred in granting relief on the
basis of Claim One of Hobdy’s federal habeas application, which alleged that
Hobdy’s trial counsel was ineffective for failing to retain and present testimony from
an expert in psychopharmacology. More specifically, respondents argue that the
district court erred in concluding that the CCA unreasonably applied Strickland when
it rejected this claim on the merits. We agree with respondents.
a) Clearly established federal law applicable to the claim
The clearly established federal law applicable to this claim is the familiar two-
part test outlined by the Supreme Court in Strickland. 466 U.S. at 687. Under the
first part of that test, a “defendant must show that counsel’s performance was
deficient.” Id. at 668. “In light of the variety of circumstances faced by defense
counsel and the range of legitimate decisions regarding how best to represent a
criminal defendant, the performance inquiry necessarily turns on whether counsel’s
assistance was reasonable considering all the circumstances.” Wong v. Belmontes,
558 U.S. 15, 17 (2009) (per curiam) (internal quotation marks and brackets omitted).
Under the second part of the test, a “defendant must show that the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687. “This requires
showing that counsel’s errors were so serious as to deprive the defendant of a fair
22
trial, a trial whose result is reliable.” Id. “It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the proceeding.” Id.
at 693. “Virtually every act or omission of counsel would meet that test, and not
every error that conceivably could have influenced the outcome undermines the
reliability of the result of the proceeding.” Id. (citation omitted). That said,
however, “a defendant need not show that counsel’s deficient conduct more likely
than not altered the outcome in the case.” Id. “The result of a proceeding can be
rendered unreliable, and hence the proceeding itself unfair, even if the errors of
counsel cannot be shown by a preponderance of the evidence to have determined the
outcome.” Id. at 694. Thus, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id.“The governing legal standard [thus] plays a critical role in defining the
question to be asked in assessing the prejudice from counsel’s errors.” Id. at 695.
“When a defendant challenges a conviction, the question is whether there is a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Id.“Unless a defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary process that renders the
result unreliable.” Id. at 687.
23
b) The state district court’s analysis
The state district court concluded, in addressing Hobdy’s Rule 35(c) motion
for postconviction relief, “that failing to retain a medical expert” to testify about the
victim’s medications and their effect on his ability to perceive, recall and relate “fell
below the performance of reasonably effective assistance.” Aplt. App., Vol. 2 at 174.
The state district court explained that “[t]he People’s medical expert testimony
should not have been allowed to stand alone, especially given that the crux of
[Hobdy’s] defense [at trial] was attacking the victim’s credibility.” Id. As for the
second prong of the Strickland test, however, the state district court concluded that
trial counsel’s error did not “create[] any real probability that the jury would not have
convicted [Hobdy].” Id. The state district court explained that, due to Hobdy’s trial
counsel’s cross-examination of the state’s witnesses,4 “the jury was well aware that
the victim was not only taking morphine to manage his pain, but was taking many
other powerful drugs,” including “on the night in question.” Id. at 175. Continuing,
the state district court noted that “[h]aving another expert, this one from the defense,
to share complicated medical expert testimony, would not have materially changed
[the jury’s] understanding with regard to the” credibility of the “victim’s testimony
. . . .” Id. at 176.
4
These witnesses included the victim’s oncologist, the emergency room doctor
who treated the victim after the assault, two hospice nurses, the victim’s girlfriend,
and a friend of the victim.
24
c) The CCA’s analysis
The CCA, for its part, focused on the second prong of the Strickland test and
rejected Hobdy’s argument “that, had his first attorney offered [an expert in
psychopharmacology] to testify at trial, there [wa]s a reasonable possibility that the
trial’s result would have been different.” Id. at 232. In doing so, the CCA discussed
in detail the testimony of the expert in psychopharmacology that Hobdy presented
“during the remand hearing” on his Rule 35(c) motion. Id. The CCA noted:
The psychopharmacologist testified about the combination of
medications that the victim had been taking. He stated that this
combination affects the central nervous system, and that it can cause
“abnormal thinking.” He stated that the potential side effects of these
medications include, among other things, hallucinations, confusion,
fragmented memory, and blurred vision.
The psychopharmacologist added that the victim was taking large
doses of some of the medications. In a patient with an underperforming
liver, like the victim, there was a higher potential to suffer side effects.
He stated that he believed that the victim’s oncologist had minimized
the potential side effects of the medications when testifying at trial, and
that the oncologist did not address the issue in the context of whether
the combination would affect someone’s ability to “accurately report
information.”
The psychopharmacologist noted that he had identified ninety-
four instances in the record and in the transcripts of the victim’s
depositions where the victim had suffered from the medications’ side
effects or appeared to be intoxicated by the medications. He explained
that these reactions “would . . . affect [the victim’s] ability to make
judgment decisions and attend to what’s going on.”
The psychopharmacologist testified that, on the night of the
assault, the victim was “probably having side effects at the time of the
[assault]” and that he did not believe the victim would be able to recall
it reliably. He stated that, at the time of the assault, the victim “was
25
operating in a continued and almost perpetual altered mental state that
could be . . . described as a state of abnormal thinking.”
Id. at 232–33.
The CCA then stated: “We conclude that the record supports the [state district]
court’s determination that [Hobdy] did not prove that, had [trial] counsel retained an
expert like the psychopharmacologist to testify at trial, there was a reasonable
probability that the result of the proceeding would have been different.” Id. at 234.
The CCA explained that it “reach[ed] this conclusion because” Hobdy’s trial counsel,
“through cross-examination, submitted to the jury a great deal of the information
about which the psychopharmacologist testified at the remand hearing.” Id. More
specifically, the CCA stated:
We have compared the testimony presented at trial and the
testimony offered at the remand hearing. The trial testimony from
doctors, hospice nurses, and friends included statements about the
medications the victim was taking at the time of the assault and their
possible side effects, including confusion and hallucinations. Witnesses
described specific instances when the victim had suffered these side
effects. The first attorney elicited admissions from some of these
witnesses that the high dosage of medications, combined with the
victim’s physical condition, could have increased the likelihood and
severity of those side effects.
And these witnesses provided testimony from a perspective that a
witness such as the psychopharmacologist could not have duplicated.
They examined, treated, and interacted with the victim. They saw him;
they spoke with him; some of them saw him and spoke with him over a
significant period during which he was taking the medications; and
some of them saw him and spoke with him a short time after the assault.
Indeed, the psychopharmacologist testified that “[he] wasn’t there
so [he couldn’t] absolutely say” whether the victim was having adverse
side effects at the time of the assault. Instead, he was “asked to review
the records and determine what is the likelihood of something occurring
26
[sic].” Also, he stated that “it’s hard to know whether someone’s
having some of the[] symptoms [caused by abnormal thinking] without
assessing [the person] directly,” and that an evaluation of the extent to
which a person was suffering from a medication’s side effects should
include a physical examination of the individual. The expert conceded
that he did not physically examine the victim.
He also admitted that he had not watched a surveillance videotape
or listened to a 911 recording, from which he could have observed and
listened to the victim on the night of the assault. He stated that these
recordings would have been significant in evaluating the victim’s
mental acuity at that time. And the jury watched the videotape and
listened to the 911 recording.
***
The evidence that was presented at trial was sufficient to cause
the jury to question the victim’s credibility. During the examination of
one of the hospice nurses, a juror asked the nurse to repeat how many
times the victim had taken morphine on the night of the assault. During
deliberations, the jury submitted a note to the trial court, which stated,
“We are struggling with coming to agreement with the credibility of [the
victim’s] testimony.”
The jury was aware of the medications that the victim was taking;
it heard about their side effects; it learned of their effect on the victim;
and, although it “struggl[ed” to “agree[]” about the victim’s credibility,
it obviously overcame that struggle and reached an agreement. Under
these circumstances, and based on the record before us, we conclude
that there is not a reasonable probability, meaning a probability
sufficient to undermine our confidence in the outcome, that had the
additional information from an expert such as the psychopharmacologist
been presented to the jury, the result would have been different.
Defendant did not establish that there was a reasonable probability that
such testimony would have been the “ounce that makes the pound” that
would have led the jury to acquit instead of to convict.
Id. at 236–39.
27
Thus, in sum, the CCA rejected Hobdy’s ineffective assistance of trial counsel
claim due to Hobdy’s “fail[ure] to establish prejudice,” and without directly
addressing the first prong of Strickland. Id. at 240.
d) The federal district court’s analysis
As we have previously noted, the district court concluded that, under 28
U.S.C. § 2254(e)(1), it was “obliged to accept” the state district court’s “final
determination” regarding the first prong of the Strickland test. Aplt. App., Vol. 1
at 198. The district court then examined the CCA’s analysis of the second prong of
the Strickland test and the CCA’s resulting determination that Hobdy was not
prejudiced by his counsel’s allegedly deficient performance. Citing one particular
sentence in the CCA’s decision, the district court concluded “that the [CCA]
incorrectly considered it necessary for [Hobdy] to show that the different result was
required to be an acquittal.” Aplt. App., Vol. 1 at 198 (quoting and citing the CCA’s
statement that: “Defendant did not establish that there was a reasonable probability
that such testimony would have been the ‘ounce that makes the pound’ that would
have led the jury to acquit instead of to convict”). The district court stated that
“Strickland does not require a defendant to establish a reasonable probability that the
jury would have acquitted, but rather that the result of the proceeding would have
been different,” and it noted that “[t]here [we]re other possible outcomes, including a
hung jury, which would have been more favorable for Hobdy.” Id. And, apparently
reviewing the issue de novo, the district court concluded that, had Hobdy’s trial
counsel presented expert testimony from a psychopharmacologist, “[t]here would in
28
all probability have been a mistrial based on a hung jury–that is at least one juror
having a reasonable doubt as to the credibility of the testimony of [victim] Jerry
Williams.” Id. at 198–99.
In explaining the reasons for its conclusion, the district court briefly noted that
“[t]here was no evidence to corroborate [Williams’] story” and “[t]he jury obviously
had great difficulty in making that determination as revealed in the notes to the
judge.” Id. at 199. The district court then focused on the jury’s deliberations and the
notes sent by the jury to the state trial court and concluded: “This haphazard handling
of jury questions, failure to inform counsel of a jury communication, and failure to
make a proper record of exchanges between the judge and jury is structural error
which requires vacation of the conviction.”5 Id. at 200. Lastly, the district court
stated: “For the foregoing reasons, the Court concludes that . . . Hobdy received
5
This statement was apparently intended by the district court to address Claim
Two of Hobdy’s federal habeas application, since that claim concerned the state trial
court’s handling of the “attacking each other” jury note. But that was not clear from
the face of the district court’s decision because the district court made no express
reference to Claim Two, and it ultimately emphasized that it was granting federal
habeas relief in favor of Hobdy because he “received ineffective assistance of
counsel, in violation of the Sixth Amendment.” Aplt. App., Vol. 1 at 200–01. This
is presumably what led to respondents seeking clarification of the district court’s
order. The district court subsequently stated, in addressing respondents’ motion for
clarification, that it was granting federal habeas relief on two grounds: Hobdy’s
ineffective assistance of counsel claim for failing to present testimony from a
psychopharmacologist, and what the district court stated was its conclusion that
Hobdy “was denied the assistance of trial counsel in responding to the jury’s
questions in violation of the Sixth Amendment as alleged in Claim Two.” Id. at 228.
Consequently, for purposes of this opinion, we treat the district court’s references to
the “attacking each other” jury note, and its structural error conclusion, as related to
Claim Two of Hobdy’s federal habeas application.
29
ineffective assistance of counsel, in violation of the Sixth Amendment, and is
accordingly ‘in custody in violation of the Constitution of the United States.’” Id.at 200–01 (quoting 28 U.S.C. § 2254(a)).
e) The flaws in the district court’s analysis
We conclude that the district court’s analysis was erroneous in at least two
respects. To begin with, the district court erred in concluding that § 2254(e)(1)
required it “to accept” the state district court’s “final determination” regarding the
first prong of the Strickland test. Aplt. App., Vol. 1 at 198. Section 2254(e)(1)
provides only that “a determination of a factual issue made by a State court shall be
presumed to be correct” and that “[t]he applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1). A district court’s decision regarding the first prong of the Strickland
test, such as the one pointed to by the district court in this case, is not a factual
finding (although it typically involves underlying factual findings), but rather a legal
determination that is subject to review under § 2254(d) rather than § 2254(e)(1). See
Strickland, 466 U.S. at 698 (“[A] state court conclusion that counsel rendered
ineffective assistance is not a finding of fact binding on the federal court to the extent
stated by 28 U.S.C. § 2254(d).”).
Second, even assuming that Hobdy did satisfy the first prong of the Strickland
test, the district court erred in concluding that the CCA unreasonably applied the
second prong of the Strickland test when the CCA focused on the possibility or
probability of acquittal, rather than the possibility of a hung jury and a resulting
30
mistrial. 6 Nothing in Strickland suggests that the prejudice standard can be satisfied
by something less than an acquittal. To the contrary, the Court in Strickland stated
“[i]t is not enough for the defendant to show that the errors had some conceivable
effect on the outcome of the proceeding.” 466 U.S. at 693. Instead, the Court held,
“[w]hen a defendant challenges a conviction, the question is whether there is a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Id. at 695. Thus, the CCA’s decision, which
focused on the probability of acquittal, was neither contrary to nor an unreasonable
application of Strickland. See Frost, 749 F.3d at 1226 n.9 (noting, in dicta, that it
was not unreasonable for state appellate court applying the Strickland standard to
focus on the probability of acquittal, rather than simply a “different result”).
f) The CCA’s decision was reasonable
Setting aside the district court’s analysis, we conclude that the CCA’s analysis
and resolution of Hobdy’s ineffective assistance of counsel claim was neither
contrary to, nor an unreasonable application of, Strickland and its prejudice prong.
See 28 U.S.C. § 2254(d). To begin with, the CCA correctly discussed the controlling
legal principles outlined in Strickland, including the requirements of the prejudice
6
Notably, Hobdy never argued the theory that was relied on by the district
court. In his brief to the CCA, Hobdy argued that “if [his] trial counsel had used a
medical expert . . . , a reasonable probability exist[ed] that the jury would have found
[him] not guilty.” Aplt. App., Vol. 2 at 218. Nowhere did Hobdy argue the
possibility of a hung jury and resulting mistrial. Likewise, in his application for
federal habeas relief, Hobdy did not argue that the CCA erred in failing to consider
the possibility of a hung jury and mistrial.
31
prong. Aplt. App., Vol. 2 at 228–29. The CCA then carefully examined the
testimony that was elicited at trial from the State’s various witnesses regarding the
victim’s drug regimen and its likely effects on his ability to perceive, recall and
relate. The CCA in turn examined the expert testimony presented by Hobdy at the
Rule 35(c) evidentiary hearing regarding that same topic. The CCA compared the
trial testimony to the expert testimony presented at the Rule 35(c) evidentiary hearing
and concluded there was not a reasonable probability that the outcome of the trial
would have been different had Hobdy’s trial counsel presented expert testimony like
that presented by Hobdy at the Rule 35(c) evidentiary hearing. The CCA stated that
it “reach[ed] this conclusion because [Hobdy’s trial counsel], through cross-
examination, submitted to the jury a great deal of the information about which the
psychopharmacologist testified at the [Rule 35(c)] hearing.” Id. at 234. The CCA
noted that “[t]he evidence that was presented at trial,” including that elicited by
Hobdy’s trial counsel via cross-examination, “was sufficient to cause the jury to
question the victim’s credibility,” and that “although [the jury] ‘struggl[ed]’ to
‘agree[]’ about the victim’s credibility, it obviously overcame that struggle and
reached an agreement.” Id. at 238 (emphasis in original).
Nothing about this analysis was contrary to or an unreasonable application of
clearly established Supreme Court precedent. In terms of the “contrary to” prong of
§ 2254(d), the Supreme Court has never addressed a case involving materially
indistinguishable facts, and thus the CCA did not decide Hobdy’s case differently
than the Supreme Court. Williams, 529 U.S. at 412–13. Nor did the CCA arrive at a
32
conclusion opposite to that reached by the Supreme Court on a question of law. Id.In terms of the “unreasonable application” prong of § 2254(d), the CCA did not
unreasonably apply the principles outlined in Strickland to Hobdy’s case. Id. at 415–
16. Rather, the CCA’s consideration and rejection of Hobdy’s ineffective assistance
claim appears to have been entirely reasonable and thus does not provide Hobdy an
avenue for federal habeas relief under § 2254(d).
For these reasons, we reverse the district court’s order granting federal habeas
relief on the basis of Hobdy’s claim that his trial counsel was ineffective for failing
to consult with and offer evidence from an expert in psychopharmacology.
Denial of the right to counsel, presence, and a fair trial
In their second issue on appeal, respondents argue that the district court also
erred in granting federal habeas relief on Claim Two of Hobdy’s federal habeas
application. Claim Two alleged that the state trial court denied Hobdy “his right to
counsel, to be present, and to a fair trial by [its] failure to disclose the ‘attacking each
other’ ‘still . . . deadlocked’ note from the jury.” Aplt. App., Vol. 1 at 31. The
district court, in its initial memorandum opinion and order, concluded that the
“haphazard handling of jury questions, failure to inform counsel of a jury
communication, and failure to make a proper record of exchanges between the judge
and jury [wa]s structural error which require[d] vacation of [Hobdy’s] conviction.”
Id. at 200. Subsequently, in its January 5, 2018 order addressing respondents’ post-
judgment motions, the district court “ORDERED” that Hobdy “was denied the
33
assistance of trial counsel in responding to the jury’s questions in violation of the
Sixth Amendment as alleged in Claim Two.” Id. at 228.
a) Claim Two is procedurally barred
Respondents argue that Claim Two of Hobdy’s federal habeas application—as
actually framed in the application—is procedurally barred due to Hobdy’s failure to
fairly present the claim to the CCA “in any of his three appeals in that court.” Aplt.
Br. at 43. According to respondents, “[t]he first and only time [Hobdy] presented the
claim that his right to presence was violated by the trial court’s alleged failure to
disclose the ‘attacking each other’ jury note was in a post-hearing brief on the
remand from his postconviction appeal.” Id. at 44. Respondents assert that the state
district court “did not address this new claim, and [Hobdy] did not present it to the
CCA in the remand appeal.” Id. at 44–45. Respondents also argue that Hobdy “may
not now present the claim as an independent constitutional ground for relief because
it would be barred as untimely under Colo. Rev. Stat. § 16-5-402 (2017) and as an
abuse of process under Colo. R. Crim. P. 35(c)(3)(VII).” Id. at 46. “Both of these
rules,” respondents argue, “are independent of federal law and adequate to sustain a
procedural default.” Id.We agree. In his original Rule 35(c) motion, Hobdy made no mention of the
“attacking each other” jury note and raised no claims related to that note. In his
amended Rule 35(c) motion, Hobdy argued that his appellate counsel was ineffective
for failing to argue to the CCA that (a) “there [wa]s no transcript establishing that the
trial court ever acknowledged the jury’s [‘attacking each other’] note,” (b) the trial
34
court never made “Hobdy and his [trial] counsel . . . aware of” this note, or (c) “it
[wa]s structural error for [the] trial court to fail to make an [sic] preserve a record’
regarding this note. 7 Aplt. App., Vol. 2 at 92–93. But he did not otherwise assert
any of the claims that he now alleges in Claim Two of his federal habeas application,
i.e., that the state trial court denied him “his right to counsel, to be present, and to a
fair trial by [its] failure to disclose the ‘attacking each other’ ‘still . . . deadlocked’
note from the jury.” Aplt. App., Vol. 1 at 31. Thus, the allegations asserted in Claim
Two of Hobdy’s federal habeas application were never addressed by the state district
court or the CCA and are unexhausted. See generally Kimmelman v. Morrison, 477
U.S. 365, 374 n.1 (1986) (holding that Sixth Amendment claim was distinct from the
underlying Fourth Amendment claim).
Further, the allegations in Claims Two are subject to an anticipatory
procedural bar. “‘Anticipatory procedural bar’ occurs when the federal courts apply
procedural bar to an unexhausted claim that would be procedurally barred under state
7
That claim of ineffective assistance of direct appeal counsel was rejected by
the state district court as untimely. The state district court found that “[t]he
‘attacking each other’ note appeared in the file and the record before the [CCA]” on
direct appeal. Aplt. App., Vol. 2 at 170. “Therefore,” the court concluded, “a failure
to explicitly raise this on appeal, necessitating the application of the justifiable
excuse or excusable neglect standard in allowing the untimely supplement which
raise[d] th[e] argument, [wa]s not persuasive” and the court “lack[ed] the province to
address the matter . . . under Crim. P. 35(c)(3)(VI).” Id. at 171. Hobdy did not
appeal this ruling to the CCA. Indeed, the CCA subsequently noted that Hobdy
argued “justifiable excuse or excusable neglect” in the remand proceedings, but
“d[id] not reassert those grounds” in his appeal from the remand proceedings, and
thus “ha[d] abandoned any argument concerning them.” Id. at 241. Consequently, at
no point did the CCA address any issues related to or arising out of the “attacking
each other” jury note.
35
law if the petitioner returned to state court to exhaust it.” Moore v. Schoeman, 288
F.3d 1231, 1233 n.3 (10th Cir. 2002). If Hobdy were to attempt to now assert the
allegations in the Colorado state courts in a Rule 35(c) motion, they would be
deemed time-barred. See Colo. Rev. Stat. § 16-5-402(1) (requiring petitions for post-
conviction relief to be filed within three years for all non-class 1 felonies; class 1
felonies are those punishable by life imprisonment or the death penalty). Thus, the
claims are procedurally barred for purposes of federal habeas review. Moore, 288
F.3d at 1233 n.3.
Although it is not entirely clear from the record, it appears that the district
court—obviously troubled by the state trial court’s apparent failure to notify the
parties about the jury’s “attacking each other” note—sua sponte raised the issue of
structural error. Doing so, however, was clearly inconsistent with the dictates of
§ 2254(d), which places strict limitations on a state prisoner’s ability to obtain federal
habeas relief. See Ellis, 872 F.3d at 1091 (emphasizing that “a federal court may
grant habeas relief only with respect to federal claims that state prisoners have
appropriately exhausted by adequately presenting the substance of the claims to the
appropriate state court for review”). Because Hobdy never raised any such structural
error claim in his federal habeas application, and because the CCA rejected Hobdy’s
claim of structural error (which, as noted, was actually couched as an ineffective
assistance of appellate counsel claim) as procedurally barred, the purported structural
error found by the district court cannot operate as a basis for granting federal habeas
relief.
36
Thus, in sum, Claim Two of Hobdy’s federal habeas application is
procedurally barred and cannot serve as the basis for the grant of federal habeas
relief.
Hobdy’s request for relief on “contingent claims”
Hobdy, in his appellate response brief, argues that even if we disagree with the
district court’s resolution of Claims One and Two of his federal habeas application,
he is nevertheless entitled to federal habeas relief on the basis of Claims Three
(ineffective assistance of appellate counsel) and Four (cumulative error). Aple. Br.
at 19, 47–58. We are not, however, persuaded that Hobdy is entitled to affirmance of
the district court’s judgment—federal habeas relief in the form of a new trial—on the
basis of either of those claims.8 See generally Jennings v. Stephens, 574 U.S. –, 135
S. Ct. 793, 802 (2015) (recognizing that a habeas petitioner may, in response to the
appeal of a decision granting him relief, and without obtaining a certificate of
appealability, urge alternative grounds for affirmance of the district court’s
judgment).
In Claim Three, Hobdy asserts that his appellate counsel “failed to adequately
review the record on appeal and mishandled the appellate issues related to the jury’s
deadlock notes.” Aple. Br. at 19. Hobdy concedes, as he must, that the CCA denied
that same claim “on procedural default grounds, finding (1) the amended motion was
8
The district court denied relief on Claims Three and Four and Hobdy did not
obtain a COA or file a cross-appeal regarding those claims. Under Jennings,
however, it was unnecessary for him to do so in order to urge those claims as an
alternative basis for affirmance of the district court’s judgment.
37
untimely under [Colo. Rev. Stat.] § 16-5-402 . . . and (2) the ‘justifiable excuse or
excusable neglect’ exception to this statutory limitations period did not apply.” Id.
at 48. In particular, the CCA rejected Hobdy’s argument that the attorney who
prepared his amended Rule 35(c) motion “was ineffective because she did not timely
raise the issue of” ineffective assistance of appellate counsel. Aplt. App., Vol. 2 at
240–41.
Hobdy argues, however, that the CCA’s “ruling unreasonably ignored the fact
that” the attorney who prepared the amended Rule 35(c) motion “was never counsel
of record” and instead “was working under [the] supervision” of the attorney who
“was counsel of record.” Aple. Br. at 51. Hobdy further argues that “[c]ounsel of
record” in the Rule 35(c) proceeding “was responsible for preserving Hobdy’s right
to raise his claim of [ineffective assistance of appellate counsel] by adhering to any
applicable statute of limitations.” Id.
We reject Hobdy’s arguments. The CCA emphasized in its decision that
Hobdy’s “written argument[s] after the remand hearing . . . focused solely on the . . .
attorney” who prepared the amended Rule 35(c) motion, and not on his counsel of
record in the Rule 35(c) proceeding. Aplt. App., Vol. 2 at 244. The CCA “also
note[d] that” Hobdy’s counsel of record in the Rule 35(c) proceeding “did not testify
at the remand hearing,” and that Hobdy “did not contend during the remand
proceedings,” or in the appeal from the remand proceedings, that his counsel of
record in the Rule 35(c) proceeding “was ineffective.” Id. Lastly, “[b]ecause a
prisoner does not have a constitutional right to counsel in state postconviction
38
proceedings, ineffective assistance in those proceedings does not qualify as cause to
excuse a procedural default.” Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). Thus,
we conclude that Claim Three—Hobdy’s ineffective assistance of appellate counsel
claim—was defaulted in state court on an independent and adequate state procedural
ground and, in turn, is procedurally barred for purposes of federal habeas review.
In Claim Four, Hobdy asserts that his “right to due process of law was violated
by the cumulative effect of error.” Aple. Br. at 57. We reject Claim Four, however,
because “we have discerned through the lens of AEDPA only one” assumed error,
i.e., trial counsel’s failure to retain and present testimony from an expert in
psychopharmacology, and it is well-established that “there must be more than one
error to conduct cumulative-error analysis.” Ellis, 872 F.3d at 1090.
III
The judgment of the district court is REVERSED and the case REMANDED
to the district court with directions to enter judgment in favor of respondents on
Hobdy’s application for federal habeas relief.
39