Wells v. Falk

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 9, 2019
• Docket: 19-1185
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 9, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court DAVID CHARLES WELLS,

Petitioner - Appellant,

v. No. 19-1185 (D.C. No. 1:18-CV-02211-PAB) JAMES FALK; PHIL WEISER, Attorney (D. Colo.) General, State of Colorado,

Respondents - Appellees. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before HOLMES, MURPHY, and CARSON, Circuit Judges. _________________________________

Petitioner David Wells, 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. He also seeks to proceed in

forma pauperis. We deny both of Petitioner’s requests.

I.

A jury convicted Petitioner of first-degree murder and other crimes in

Colorado state court. The state court sentenced Petitioner to life in prison without

the possibility of parole. The Colorado Court of Appeals (“CCA”) affirmed the

* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. convictions on direct appeal, and the Colorado Supreme Court denied Petitioner’s

petition for writ of certiorari. Petitioner then filed a motion for post-conviction relief

in Colorado state court. The trial court denied relief, and the CCA affirmed. The

Colorado Supreme Court again denied Petitioner’s petition for writ of certiorari.

Petitioner filed a second motion for state post-conviction relief, which he

characterized as an “Addendum.” The state trial court denied the “Addendum,” the

CCA affirmed, and the Colorado Supreme Court once more denied review.

Petitioner next filed an application for a writ of habeas corpus in federal

district court under 28 U.S.C. § 2254. The district court denied Petitioner’s

application. The district court also declined to issue a COA after concluding that he

had not made a substantial showing of the denial of a constitutional right under

28 U.S.C. § 2253(c)(2). Petitioner now asks us for a COA.

II.

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 that 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.

2 Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S.

473, 484 (2000)). Our “inquiry does not require 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 habeas relief to an individual in state custody on

a claim that was adjudicated on the merits in 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.” Davis v. McCollum, 798 F.3d 1317, 1319

(10th Cir. 2015) (quoting 28 U.S.C. § 2254(d)(1)–(2)).

III.

In asking us for a COA, Petitioner abandons certain arguments that he made

before the district court. He now focuses exclusively on his claim that trial counsel

was ineffective by allowing his speedy trial rights to be violated by obtaining a

continuance, and by failing to present certain evidence.

To demonstrate ineffective assistance of counsel, Petitioner must demonstrate

that (1) his counsel’s performance “fell below an objective standard of

reasonableness” and (2) “the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687–88 (1984). “Although there are basic

rights that the attorney cannot waive without the fully informed and publicly

acknowledged consent of the client, the lawyer has—and must have—full authority

3 to manage the conduct of the trial.” Taylor v. Illinois, 484 U.S. 400, 417–18 (1988).

The decision to request a continuance falls squarely within a lawyer’s authority. See

New York v. Hill, 528 U.S. 110, 115 (2000) (reasoning that “[s]cheduling matters are

plainly among those for which agreement by counsel generally controls”).

Here, Petitioner alleges that trial counsel sought and obtained a four-month

continuance over his objection. According to Petitioner, trial counsel sought the

continuance to recruit a DNA expert and conduct additional crime scene analysis but

failed to use the continuance for that purpose. Both the decision to seek a

continuance and the use of it are strategic decisions entitled to “a heavy measure of

deference to counsel’s judgments.” See Strickland, 466 U.S. at 691.

Moreover, Petitioner fails to demonstrate any way in which the result of the

trial would have been different if his counsel had not sought or obtained the

continuance. See id. at 694 (under the prejudice prong, a petitioner “must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different”). Petitioner only speculates that

forensic evidence may have supported his testimony, but our review of the record

does not indicate that evidence helpful to Petitioner’s theory exists or that trial

counsel was ineffective in failing to discover it during the continuance. See Byrd v.

Workman, 645 F.3d 1159, 1168 (10th Cir. 2011) (observing that “mere speculation is

not sufficient” to establish prejudice). Because he fails to establish either required

prong under Strickland, Petitioner likewise fails to demonstrate that reasonable jurists

4 could debate whether he is entitled to relief on this ground. See Taylor, 454 F.3d

at 1078. Accordingly, we do not grant a COA to Petitioner on this issue.1

Petitioner next argues that his trial counsel acted ineffectively by failing to

present additional evidence to support his theory of self-defense during trial. The

accused does not have an “unfettered right” to offer any evidence he wishes to

present. Taylor, 484 U.S. at 410. Rather, which evidence to present at trial and

which witnesses to call are strategic decisions generally within the purview of trial

counsel. See Sallahdin v. Mullin, 380 F.3d 1242, 1248 (10th Cir. 2004) (attributing

counsel’s decision not to present certain evidence to trial strategy).

Although Petitioner provides examples of omitted evidence that he thinks

could have been helpful to his defense, he fails to demonstrate that the available

evidence supports his theory of self-defense. See Boyle v. McKune, 544 F.3d 1132,

1138–39 (10th Cir. 2008) (holding that defense counsel’s failure to call a medical

expert to refute the prosecution’s theory did not prejudice the defendant). As the

CCA determined, Petitioner has never identified a specific expert who could have

testified consistently with his interpretation of the evidence. Instead, the record

demonstrates that trial counsel extensively cross-examined the forensic pathologist

1 In support of his arguments on this issue, Petitioner cites no cases beyond those outlining the authority the district court relied upon to deny his petition. See Fed. R. App. P. 28(a)(8)(A) (providing that an argument “must contain” a petitioner’s “contentions and the reasons for them, with citations to the authorities . . . on which the [petitioner] relies”). To the extent Petitioner questions the trial court’s judgment in granting the continuance, that does not demonstrate ineffective assistance of counsel, nor does it demonstrate he suffered any prejudice from the continuance. 5 who had conducted the victim’s autopsy. Despite Petitioner’s contentions, the

available forensic evidence may even undermine Petitioner’s self-defense argument.

See id. at 1138 (observing that “the speculative witness is often a two-edged sword”

because “as easily as one can speculate about favorable testimony, one can also

speculate about unfavorable testimony”). Perhaps mindful of that issue, trial counsel

made the strategic decision not to call a medical expert, and that decision is entitled

to “a heavy measure of deference.” See Strickland, 466 U.S. at 691.

Moreover, the CCA reasoned that even if counsel had found a medical expert

to offer testimony in support of Petitioner’s self-defense theory, overwhelming

evidence of Petitioner’s guilt, including the forensic evidence presented by the

prosecution, had foreclosed a “reasonable probability” of a different outcome at trial.

See id. at 694. We agree with the CCA’s conclusion. Because Petitioner provides no

convincing argument that additional medical testimony would have meaningfully

supported his defense, he cannot demonstrate that reasonable jurists could debate

whether he is entitled to relief on this ground. See Taylor, 454 F.3d at 1078.

Accordingly, we do not grant a COA to Petitioner on this issue.

6 IV.

For the foregoing reasons, we deny Petitioner’s application for a COA and

dismiss this matter. We also deny Petitioner’s request to proceed in forma pauperis.2

Entered for the Court

Joel M. Carson III Circuit Judge

2 Given the multiple post-conviction relief petitions Petitioner has filed challenging his conviction, we conclude that Petitioner’s request for a COA lacked good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962). Accordingly, we deny his request for in forma pauperis status. 7