Jones v. Hartley, 10th Cir. (2010)

FILED
United States Court of Appeals

Tenth Circuit
February 24, 2010

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
FREDRICK L. JONES,
Petitioner-Appellant,
v.
STEVE HARTLEY, Warden of the
Limon Correctional Facility, and
THE ATTORNEY GENERAL OF
THE STATE OF COLORADO,
No. 09-1530
(D.C. No. 08-CV-2007-ZLW)
(D. Colo.)
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
Fredrick L. Jones, 1 a Colorado state prisoner proceeding pro se, applies for
a certificate of appealability (COA) to challenge the district courts denial of his
28 U.S.C. 2254 petition for a writ of habeas corpus. Because the district court
correctly resolved all of Mr. Joness arguments, we deny the application.
* * *
*
This order is not binding precedent except under the doctrines of law of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.
1
In several filings in this court, Mr. Joness first name was spelled
incorrectly as Frederick. Because both the district court and Mr. Jones spell his
first name as Fredrick, that is the spelling we will adopt.
Mr. Jones pled guilty to one count of second-degree kidnapping and one
count of first-degree sexual assault. The state trial court sentenced him to two
consecutive forty-five year prison terms, and his sentence was affirmed on direct
appeal. Mr. Jones then unsuccessfully pursued post-conviction relief in the state
courts, before filing the instant federal habeas petition under 28 U.S.C. 2254.
The district court rejected each of Mr. Joness federal habeas claims and
dismissed his petition with prejudice, and it is this order from which Mr. Jones
now seeks to appeal.
Because Mr. Jones is in custody pursuant to the judgment of a state court,
he may not appeal the federal district courts denial of habeas relief without a
COA from the court of appeals. 28 U.S.C. 2253(c)(1)(A). Where, as here, the
district court has addressed the merits of the petitioners claim, a COA will not
issue unless the applicant makes a substantial showing of the denial of a
constitutional right. Id. 2253(c)(2). Mindful of Mr. Joness pro se status, in
making this requisite assessment we review his claims with liberality. Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir. 2007).
Mr. Jones claims he is entitled to relief for four reasons. First, he argues
that trial counsel provided ineffective assistance by withdrawing various motions
to suppress prior to his plea. Second, he argues that trial counsel provided
ineffective assistance by failing to investigate an affirmative defense of impaired
mental condition. Third, he claims that the state trial court applied an incorrect
-2-
legal standard in assessing whether he was prejudiced by his trial counsels

alleged errors. Fourth and finally, he contends that his due process rights were
violated when he received an unfair post-conviction evidentiary hearing in the
state trial court. In a thorough, eighteen-page order, the district court explored
and correctly rejected each of these claims, and we affirm for substantially the
reasons that the court gave in its order. 2
In support of his first claim, Mr. Jones argues that trial counsels
withdrawal of various suppression motions forced him to plead guilty, rather than
proceed to trial. To succeed on a claim of ineffective assistance, Mr. Jones must
show that his counsel performed deficiently and that this deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
In Hill v. Lockhart, the Supreme Court clarified that, in the plea context,
counsels deficient performance is prejudicial only if there is a reasonable
probability that, but for counsels errors, he would not have pleaded guilty and
would have insisted on going to trial. 474 U.S. 52, 58-59 (1985). As the district
court observed, Mr. Jones cannot satisfy this prejudice prong.
At a post-conviction evidentiary hearing, Mr. Joness trial counsel testified
before a state court that he had withdrawn several pending motions to suppress
In his federal habeas petition, Mr. Jones also raised the claim that trial
counsel had induced him to plead guilty based on misrepresentations as to what
his sentence would be. On appeal, however, Mr. Jones has conceded that claim.
See Opening Br. at 3(a).
-3-
DNA evidence, identification testimony, and incriminating statements at the

specific request of Mr. Jones, and the state court accepted this testimony as true
in rejecting Mr. Joness post-conviction motion. R. at 293. Before the district
court and us, Mr. Jones provides no evidence to rebut the state trial courts
credibility and factual findings. As a result, and as the district court properly
held, Mr. Jones cannot establish that it was his trial counsels actions that led him
to plead guilty rather than proceed to trial. Mr. Jones seeks to avoid this result by
arguing that prejudice should be presumed. But for this to be true, he would need
to show that trial counsel [had] entirely fail[ed] to subject the prosecutions case
to meaningful adversarial testing, Bell v. Cone, 535 U.S. 685, 696 (2002)
(quoting United States v. Cronic, 466 U.S. 648, 659 (1984)) (emphasis added),
and that is not the case here.
In support of his second claim, Mr. Jones argues that trial counsel should
have investigated the affirmative defense of impaired mental condition, even after
Mr. Jones was found competent to stand trial. 3 In Strickland, the Supreme Court
stated that counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. 466 U.S.
at 691. At the same time, the Court also instructed that [i]n any ineffectiveness
Colorado defines impaired mental condition as a condition of mind,

caused by mental disease or defect that prevents the person from forming the
culpable mental state that is an essential element of any crime charged. Colo.
Rev. Stat. 16-8-102(2.7)(a).
-4-
case, a particular decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to
counsels judgments. Id.
As the district court noted, the record in this case reveals that, prior to Mr.
Joness plea, trial counsel successfully sought a court-appointed psychiatrist to
conduct a competency examination of Mr. Jones, and that psychiatrist eventually
found Mr. Jones competent to stand trial. The record further indicates that trial
counsel raised the competency issue to make sure [he] wasnt missing
something, and not in response to any specific behavior by Mr. Jones. R. at 29091. In fact, trial counsel testified that Mr. Jones [f]rom the beginning had
displayed an understanding of what was happening, [and] what the defense
would be. R. at 290. Before the district court, Mr. Jones failed to identify any
evidence in the record that would have warranted trial counsels further inquiry
into his mental state or prompted trial counsel to question his mental condition at
the time the offenses were committed. Accordingly, the district court correctly
concluded that there is no basis for finding that trial counsels decision not to
pursue the defense of impaired mental condition, after a reasonable investigation,
was objectively unreasonable. See United States ex rel. Rivera v. Franzen, 794
F.2d 314, 317 (7th Cir. 1986) (The Sixth Amendment does not require a defense
attorney to pursue defenses that are not reasonably suggested by the apparent
-5-
factual circumstances surrounding the crime charged or the subsequent demeanor

and conduct of the client.).
As to his third claim, Mr. Jones argues that the state trial court erred when,
in denying his ineffective assistance of counsel claims, it applied the standard set
forth in Strickland v. Washington, 466 U.S. 668, instead of the standard
articulated in Hill v. Lockhart, 474 U.S. 52. However, as the district court
correctly observed, the Supreme Court in Hill did nothing more than apply the
Strickland standard to claims of ineffective assistance in the context of a guilty
plea. See Hill, 474 U.S. at 57-58 (Although our decision in Strickland . . . dealt
with a claim of ineffective assistance of counsel in a capital sentencing
proceeding, . . . the same two-part standard seems to us applicable to ineffectiveassistance claims arising out of the plea process.); see also Laycock v. State of
New Mexico, 880 F.2d 1184, 1187 (10th Cir. 1989) (Although [Strickland was]
proposed in the capital sentence context, the Supreme Court has extended this test
[in Hill] to guilty plea challenges based on ineffective assistance of counsel.).
The tests articulated in Hill and Strickland are substantively the same, and so the
state trial court could not have erred when it applied one rather than the other.
Indeed, Mr. Joness ineffective assistance of counsel claims fail under Hill for the
same reasons they fail under Strickland, and thus Mr. Jones cannot show the
denial of a constitutional right.
-6-
Finally, Mr. Joness fourth claim, challenging his state post-conviction

evidentiary hearing as unfair, is not cognizable in a federal habeas proceeding.
Under 2254, a petitioner may obtain relief only for errors in the state judgment
forming the basis for incarceration. See Hassine v. Zimmerman, 160 F.3d 941,
954 (3d Cir. 1998) ([T]he federal role in reviewing an application for habeas
corpus is limited to evaluating what occurred in the state or federal proceedings
that actually led to the petitioners conviction). Federal habeas relief does not
exist to remedy defects in the state post-conviction proceeding, a proceeding
collateral to detention. See United States v. Dago, 441 F.3d 1238, 1248 (10th Cir.
2006) ([D]ue process challenges to post-conviction procedures fail to state
constitutional claims cognizable in a federal habeas proceeding.); Sellers v.
Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) ([B]ecause the constitutional error
[the defendant] raises focuses only on the States post-conviction remedy and not
the judgment which provides the basis for his incarceration, it states no
cognizable federal habeas claim.).
Because the district court correctly determined that Mr. Jones has failed to
make a substantial showing of the denial of a constitutional right, 28 U.S.C.
-7-
2253(c)(2), the application for a COA is denied, and this appeal is dismissed.
His motion for leave to proceed in forma pauperis is granted. 4
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
Having reviewed Mr. Joness submissions, we conclude that Mr. Joness

appeal is timely under the prison mailbox rule articulated in Federal Rule of
Appellate Procedure 4(c)(1). See Price v. Philpot, 420 F.3d 1158, 1164-67 (10th
Cir. 2005).
-8-

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FILED

United States Court of Appeals

February 24, 2010

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

legal standard in assessing whether he was prejudiced by his trial counsels

DNA evidence, identification testimony, and incriminating statements at the

Colorado defines impaired mental condition as a condition of mind,

case, a particular decision not to investigate must be directly assessed for

factual circumstances surrounding the crime charged or the subsequent demeanor

Finally, Mr. Joness fourth claim, challenging his state post-conviction

Having reviewed Mr. Joness submissions, we conclude that Mr. Joness

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