FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 7, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
MARK STEPHEN ELLIS,
Petitioner - Appellee,
v. No. 15-1088
(D.C. No. 1:14-CV-01565-RPM)
RICK RAEMISCH, Executive Director, (D. Colo.)
Colorado Department of Corrections;
CYNTHIA COFFMAN, Attorney General,
State of Colorado,
Respondents - Appellants.
_________________________________
ORDER
_________________________________
Before HOLMES, MATHESON, and MORITZ, Circuit Judges.
_________________________________
This matter is before the court on the appellee’s Petition for Panel Rehearing
and/or Rehearing En Banc. We also have a response from the appellants. Upon
consideration, the original panel grants panel rehearing in part and only to the extent of
the changes made to page 7 and footnote 2 of the attached revised opinion. The clerk is
directed to file the revised decision nunc pro tunc to the original filing date of May 11,
2017.
The Petition for Panel Rehearing and/or Rehearing En Banc and the revised
opinion were also transmitted to all the judges of the court in regular active service. As
no judge on the original panel or the en banc court called for a poll, the request for
rehearing en banc is denied.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
2
FILED
United States Court of Appeals
Tenth Circuit
May 11, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MARK STEPHEN ELLIS,
Petitioner - Appellee,
v. No. 15-1088
RICK RAEMISCH, Executive Director,
Colorado Department of Corrections;
CYNTHIA COFFMAN, Attorney
General, State of Colorado,
Respondents - Appellants.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:14-CV-01565-RPM)
Ryan A. Crane, Assistant Attorney General (Cynthia H. Coffman, Attorney General, with
him on the briefs), Office of the Attorney General, Criminal Appeals Section, Denver,
Colorado, for Respondents-Appellants.
Gail K. Johnson, Johnson, Brennan & Klein, PLLC, Boulder, Colorado, for
Petitioner-Appellee.
Before HOLMES, MATHESON, and MORITZ, Circuit Judges.
HOLMES, Circuit Judge.
A jury convicted Mark Ellis of five felony offenses and one misdemeanor offense
involving child sexual assault on his adopted daughter, V.E. Child sexual assault
allegations against Mr. Ellis first arose during his contentious divorce from V.E.’s
mother. At trial, defense counsel Rowe Stayton argued that Mr. Ellis had been falsely
accused; specifically, he contended that V.E.’s vengeful mother was coaching her, and
that V.E.’s sexual knowledge came only from admitted sexual abuse by her older brother.
After he was convicted, Mr. Ellis filed a motion for postconviction relief in
Colorado state district court. He alleged that Mr. Stayton had been constitutionally
ineffective for failing to interview and/or call to testify (1) an expert forensic psychologist
who could testify about theories of family dynamics and childhood memory, and (2)
several lay witnesses who could testify in particular about the Ellises’ family dynamics
when the allegations arose. The state district court denied relief. The Colorado Court of
Appeals (“CCA”) affirmed. Mr. Ellis never sought review of his ineffective-assistance
claim in the Colorado Supreme Court (“CSC”).
Mr. Ellis, now serving an indeterminate life sentence in the Colorado Department
of Corrections, filed an application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in the United States District Court for the District of Colorado. He alleged
ineffective assistance of trial counsel, among other claims. The federal district court
determined that Mr. Stayton had been constitutionally ineffective and granted Mr. Ellis
conditional habeas relief. First, the court concluded that Mr. Ellis had not failed to
exhaust state remedies even though he never sought review of his ineffective-assistance
claim in the CSC. Then, after ruling in Mr. Ellis’s favor on the merits of his ineffective-
2
assistance claim, the district court ordered the Colorado state respondents (“State”) to
retry Mr. Ellis within ninety days or be forever barred from pursuing further proceedings
on the same charges.
The State now appeals from the federal district court’s grant of habeas relief. The
State argues that the district court erred in (1) finding that Mr. Ellis exhausted state
remedies; (2) granting federal habeas relief on his ineffective-assistance claim; and (3)
barring the State from retrying him, if they do not act to do so within ninety days.
Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the judgment granting
conditional habeas relief and remand with instructions to enter judgment denying relief.
As we explain below, we conclude that Mr. Ellis adequately exhausted his ineffective-
assistance claim, but that the district court erred in granting him conditional habeas relief
on that claim. Any question as to the propriety of the district court’s ninety-day retrial
condition is effectively moot because we conclude that the district court should not have
granted habeas relief in the first place. Therefore, we do not reach this retrial issue.
I
A
V.E., a foster child, began living with Mark and his then-wife, Kari Ellis, when she
was two years old. When she was seven years old, in 1998, Mr. and Ms. Ellis adopted
her. The sexual assault of which Mr. Ellis was convicted occurred when V.E. was
approximately eight to ten years old, from 1999 to 2001.
In 2000, Kari Ellis filed for divorce after learning that her husband was having an
3
affair. During the contentious divorce proceedings that ensued, V.E.’s older brother M.E.
told his mother (i.e., Ms. Ellis) that his father had “screwed” V.E. Aplt.’s App. Vol. III,
at 154. After M.E. told Ms. Ellis this, she hid a tape-recorder in her purse and asked V.E.
whether “she had any secrets to tell [her] about anybody.” Id. at 158. V.E. did not
disclose any abuse. Because V.E. was not “telling [Ms. Ellis] anything,” Ms. Ellis asked
M.E. to “talk to [V.E.] and tell her it’s okay to be honest with [Ms. Ellis].” Id. at 159.
M.E. obliged and talked to V.E. alone. Afterward, Ms. Ellis talked to V.E. again, and this
time, V.E. said “something about her dad tying her to the bed,” “put[ting] a
buzzer[] . . . on her neck,” and “put[ting] his hands down her pants a lot.” Id. at 160. Ms.
Ellis immediately reported these statements to the police.
More than six months after the police began investigating the possible sexual
assault on V.E., lab results revealed semen on one of her blankets. Shortly thereafter,
V.E. revealed for the first time that M.E. also had been sexually assaulting her. M.E.
pleaded guilty to sexual assault on a child. He later testified, at his father’s trial, that he
“first had the idea[] [of sexually assaulting V.E.] after she told [him] what [their] father
had been doing to her.” Id. at 35 (M.E.’s Trial Test.).
At the time of Mr. Ellis’s trial in 2002, Mr. Stayton had been working as a criminal
defense lawyer for nearly twenty years. He specialized in child sexual assault cases and
had handled probably “a couple hundred” of them. Aplt.’s App. Vol. VI, at 195, 197
(Stayton’s Test. at Postconviction Hr’g). He had also interviewed “dozens, dozens of
juries.” Id.
4
In the months leading up to Mr. Ellis’s trial, however, Mr. Stayton “ha[d] a lot of
things on [his] plate that required [him] to be out of town.” Id. at 277. First, Mr.
Stayton’s mother shot herself, and although she survived, her attempted suicide triggered
a family fight over custody of Mr. Stayton’s quadriplegic sister. Then, the month before
Mr. Ellis’s trial, Mr. Stayton’s wife filed for divorce. Finally, during the week before and
the week after Mr. Ellis’s trial, Mr. Stayton was in trial for other cases.1
At Mr. Ellis’s trial, Mr. Stayton’s theory of the case was that Ms. Ellis
“despise[d]” Mark Ellis and that she “put this hatred over from her into the children.”
Aplt.’s App. Vol. II, at 32 (Opening Statement). Mr. Stayton presented this theory
primarily through cross-examination of state witnesses. For example, he elicited from
cross-examination of V.E. that she was angry at her father, that she did not like him, and
that she felt closer to her mother. In addition, he elicited from cross-examination of
V.E.’s eldest sister, Elizabeth Jefferson, that “[t]hese allegations have split the family up,”
and that while she “allied [her]self with [their] mother,” her sister, Jessica Geer, “allied
herself with” their father. Aplt.’s App. Vol. III, at 256 (Ms. Jefferson’s Test.).
Furthermore, Mr. Stayton elicited from cross-examination of M.E. that he was “probably
one of the closest children to” his mother, that he had conversations with his mother about
1
Despite these personal circumstances, when the state trial court denied Mr.
Stayton’s fourth and final motion to continue Mr. Ellis’s trial, it made clear that it did
“not find[] any bad faith in any way, shape, or form on behalf of defense counsel
or. . . any dilatory tactics in any way on behalf of defense counsel” in requesting the
continuance. Aplee.’s Suppl. App. at 120.
5
his parents’ divorce, and that his mother “was very hurt by the divorce.” Aplt.’s App.
Vol. III, at 70, 71 (M.E.’s Test.). Mr. Stayton also elicited that M.E. was “angry at [his
father] for what he was doing to [their] family,” that he “dislike[d] [his] father a great
deal,” and that his sister, Jessica, “being close to her dad is the same as [him] being close
to [their] mom.” Id. at 56, 74. And Mr. Stayton elicited on cross-examination from both
V.E. and M.E. that M.E. had been sexually assaulting V.E.
Mr. Stayton then called several witnesses for the defense. One was a forensic
scientist who testified that the amount of Mr. Ellis’s semen found on certain blankets and
comforters in the Ellises’ house—the only physical evidence in the case—was only “a
small percentage of what would come from a human ejaculation,” in “quantities that
could be transferred, for example, if ejaculate got onto somebody’s hands . . . and you
picked up an item.” Aplt.’s App. Vol. IV, at 20 (Taylor’s Trial Test.). Notably, during
one bench conference, the trial judge observed that “[t]his is a very, very well fought case
on both sides.” Aplt.’s App. Vol. III, at 252–53.
Nevertheless, the jury convicted Mr. Ellis on all counts. On direct appeal, the
CCA affirmed the convictions. See People v. Ellis, 148 P.3d 205 (Colo. App. 2006). The
CSC subsequently denied Mr. Ellis’s petition for a writ of certiorari.
B
In 2007 Mr. Ellis filed a motion for postconviction relief in Colorado state district
court, alleging ineffective assistance of counsel and arguing that newly-discovered
evidence warranted a new trial. Regarding ineffective assistance—the only claim before
6
us now—Mr. Ellis argued that Mr. Stayton was constitutionally ineffective for failing to
consult and/or call an expert forensic psychologist to testify about theories of family
dynamics and childhood memory; for failing to consult and/or call several lay witnesses
who could have supported the defense themes of parental alienation, witness coaching,
and collusion; and for committing other trial errors including weak cross-examination,
mishandling of prejudicial evidence, and failure to object to improper questioning.
In 2011 the state district court held a three-day evidentiary hearing on Mr. Ellis’s
postconviction claims. At the end of the hearing, the court found that—other than “not
[being] persuaded by . . . the evidence that the victim has affirmatively recanted her
testimony”—it “accept[ed] the testimony of the witnesses presented by the defense as
true.” Aplt.’s App. Vol. I, at 268 (State Dist. Ct.’s Ruling & Order). Moreover, the State
had called Mr. Stayton as a witness at the hearing, and the court also accepted the truth of
his testimony.2
2
The court validated Mr. Stayton’s testimony both expressly and implicitly.
As to the former, notably, the court pointed out that Mr. Stayton “testified at the
[postconviction] hearing that he had extensive experience defending cases” like Mr.
Ellis’s, and that the court “accept[ed] this testimony as true.” Aplt.’s App., Vol. 1, at 273
n.2. Regarding the latter, the court implicitly credited Mr. Stayton’s testimony by making
it a cornerstone of its substantive ineffective-assistance analysis. More specifically, the
court discussed Mr. Stayton’s testimony as to his theory of defense, relying on that
testimony in its ultimate finding discussed infra that his performance involved a series of
strategic decisions and, therefore, was not deficient under Strickland v. Washington, 466
U.S. 668 (1984). In our view, the court’s legal conclusion was based on an implicit
finding that Mr. Stayton’s testimony was credible. See Townsend v. Sain, 372 U.S. 293,
314 (noting that, if a state court rejected a petitioner’s claim on the merits in a prior state
collateral proceeding “but made no express findings, it may still be possible for the
[federal court] to reconstruct the findings of the state trier of fact, either because his view
7
Mr. Stayton testified that he “was adequately prepared for trial,” that he “was all
over the facts,” and that he believed he had “adequately represented [his] client at trial.”
Aplt.’s App. Vol. VI, at 287. Mr. Stayton also testified that he had “attempted to
of the facts is plain from his opinion or because of other indicia”), overruled on other
grounds, Kenney v. Tamayo-Reyes, 504 U.S. 1, 5 (1992); Smith v. Gibson, 197 F.3d 454,
459 (10th Cir. 1999) (“The Oklahoma Court of Criminal Appeals implicitly found
Dickson’s testimony credible.”); Brian R. Means, FEDERAL HABEAS MANUAL § 3:75
(database updated May 2017) (“If there are no express findings, the federal district court
must determine whether the state court implicitly found material facts.”).
Credibility findings are ones of fact. See Rice v. Collins, 546 U.S. 333, 338–39,
342 (2006) (treating credibility determination as a factual one in the habeas context);
Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010) (noting, in the habeas context, that
“issues like witness credibility . . . are ‘factual determinations’”); Means, supra, § 3:81
(discussing the deference accorded to credibility determinations as factual findings in the
habeas context); see also Smith, 197 F.3d at 459 (treating court’s implicit finding that
witness’s “testimony [was] credible” as a factual finding); cf. Townsend, 372 U.S. at 309
n. 6 (describing facts in the habeas context as “basic, primary, or historical facts: facts
‘“in the sense of a recital of external events and the credibility of their narrators”’”
(emphasis added) (quoting Brown v. Allen, 344 U.S. 443, 506 [sic] (1953) (opinion of
Frankfurter, J.)). Consequently, as to the universe of postconviction hearing testimony
that the state district court found to be true—both from the defense witnesses and from
Mr. Stayton—one significant legal consequence is that we should accord it a presumption
of correctness pursuant to 28 U.S.C. § 2254(e)(1). See, e.g., Townsend , 372 U.S. at 314
(noting that, if a state court rejected a petitioner’s claim on the merits in a prior state
collateral proceeding “but made no express findings, it may still be possible for the
[federal court] to reconstruct the findings of the state trier of fact, either because his view
of the facts is plain from his opinion or because of other indicia”); Church v. Sullivan,
942 F.2d 1501, 1516 (10th Cir. 1991) (holding that “‘[e]xplicit and implicit [factual]
findings by state trial and appellate courts’ are presumed correct under 28 U.S.C. §
[2254(e)(1)]” (first and second alterations in original)); accord Weeks v. Snyder, 219,
F.3d 245, 258–59 (3d Cir. 2000) (finding that state court “made the implicit finding” of a
witness’s credibility in a postconviction hearing and concluding that the “finding [was]
entitled to deference” under § 2254(e)). Importantly, in this regard, the CCA’s
subsequent legal ruling left the state district court’s factual assessment of witness
credibility undisturbed and, indeed, incorporated it.
8
establish throughout [Mr. Ellis’s] trial[] that Kari was really mad at Mark, and that what
happened is that [V.E.] had read her mom, and she was more closely aligned with her
mom. And ergo we now have allegations.” Id. at 226 (alterations in original). Mr.
Stayton continued that child sexual assault cases come down to whether “the jury believes
the child,” and he believed that at Mr. Ellis’s trial, V.E. presented well to the jury. Id. at
229.
Notably, Colorado criminal defense attorney and trial-advocacy expert Patrick
Mulligan testified at the evidentiary hearing that “the most pressing” problem with Mr.
Stayton’s assistance was that he failed to consult and call an expert forensic psychologist
“who could have offered . . . extremely important testimony.” Aplt.’s App. Vol. VI, at
104, 112. Mr. Mulligan explained that an expert could have helped the defense prepare
“to more appropriately and thoroughly cross-examine prosecution witnesses,” and could
have “tak[en] the witness stand and testif[ied] to the jury about some of the concepts that
were leading to family dynamics.” Id. at 124–25. In addition, expert forensic
psychologist Phillip Esplin testified that “this [was] a case that would have been benefited
from an expert in the field of forensic psychology.” Id., Vol. V, at 142.
When asked why he did not call an expert forensic psychologist to explain theories
of family dynamics and childhood memory to the jury, Mr. Stayton testified that he was
“well enough familiar with psychological principles [relevant to child sexual assault]
cases to prepare [his] cross-examination of the witnesses,” “to prepare [his] presentation
of evidence,” and “to prepare both [his] opening statements and closing arguments.” Id.,
9
Vol. VI, at 231–32. In fact, Mr. Stayton testified that he was so familiar with both
“parental alienation” theories and “theories on primacy and recency and best memory”
that he “had taught . . . lectures around the country with these theories” to “other defense
attorneys.” Id. at 227, 232. He also testified that he believed that he “had adequately
brought out the case, the parental alienation,” by eliciting in cross-examination that V.E.
was only accusing her father because she was aligned with her mother. Id. at 230 (“I
gave them that reason [for V.E.’s accusations], that was mom’s, I had done that in [the
state’s] case in chief.”). In other words, Mr. Stayton “just felt from [his] perception that
they [i.e., the defense] were making the points that [they] should.” Id. at 229. And he
testified that, if he had called such an expert, he believed that the state would have called
its own, and that he did not want to expose the defense case to “a lot of attack.” Id. In
this regard, Mr. Stayton expressed the view that, if the defense is going to prevail in child
sexual assault cases, it must keep the focus on the weaknesses in the prosecution’s case.
See id. (opining that “if you don’t win these cases as the defense lawyer, in the
prosecution case if you don’t win them over there, you’re not going to win on your side”).
Moreover, Mr. Stayton testified that he felt that it “would be insulting to the jury to
try to point out the parental alienation” because he believed that “it was in front of them,
and [he] didn’t think you needed an expert to tell them that[;] they either believed the
child or they don’t.” Id. at 230. He explained: “[T]he theory . . . was easy, it’s intuitive.
You don’t have to have a master’s degree to understand that one parent can manipulate a
child, you don’t need that.” Id. at 233.
10
At the postconviction evidentiary hearing, Mr. Mulligan also testified that Mr.
Stayton was ineffective for failing to call the Ellis children’s special advocate in their
parents’ divorce proceeding, Dr. Spiegle, and for failing to introduce letters that Dr.
Spiegle had submitted to the divorce court “to support the idea that Kari Ellis was trying
to manipulate the children and, in fact, alienate [them from] Mr. Ellis.” Aplt.’s App. Vol.
VI, at 108. Those letters primarily indicate that Ms. Ellis was obstructing Mark Ellis’s
access to their children during the divorce proceedings. When asked why he did not call
Dr. Spiegle after endorsing him as a witness, Mr. Stayton responded that “honestly [he]
felt that we were doing okay, we didn’t need that.” Id. at 286. Testifying that he “made
decisions that [he] really fe[lt] [were] trying to help [his] client,” Mr. Stayton remarked
that his decision not to call Dr. Spiegle was “part [of his] trial strategy.” Id. at 287.
In addition, V.E.’s eldest sister, Elizabeth Jefferson, testified at the postconviction
hearing. She testified that she had perjured herself at trial. Specifically, she testified that
when asked at trial whether Ms. Ellis “had been rehearsing and coaching [V.E.],” Ms.
Jefferson answered no—even though both she and her mother had “been rehearsing and
coaching [V.E.] from the very first day this allegation came to light.” Aplt.’s App. Vol.
V, at 223 (Ms. Jefferson’s Test. at Postconviction Hr’g) (alterations in original). Ms.
Jefferson also testified at the postconviction hearing that at the time of trial, she “wanted
to do everything [she] possibly could to help get [her father] put away” because she
believed he “was a child molester.” Id. at 224. At the time, Ms. Jefferson said that her
knowledge of the molestation came entirely from her mother, who told her things that Ms.
11
Jefferson later discovered were false.3 Id. at 224–25.
Another of V.E.’s sisters, Jessica Geer, also testified at the postconviction hearing.
Ms. Geer had not been called to testify at trial. However, she testified at the
postconviction hearing that her mother had talked badly about her father in front of her
and her siblings, and that she might have witnessed her mother and M.E. planting
evidence against her father. Specifically, Ms. Geer testified that she saw her mother and
M.E. “with Scotch tape . . . going like this on the carpet of the truck [i.e., presumably,
pressing the adhesive portion of the tape to the carpet] on the passenger side floorboard,”
and that she later learned “that there was an allegation of there being some fiber evidence
found in blankets.” Id. at 242–43. Additionally, Ms. Geer testified that when she
expressed her belief that her father was innocent, her mother “threw [her] out of the
house,” refused to sign documents that would have allowed her to continue attending
school, and attempted to obtain a restraining order against her. Id. at 239–41 (Ms. Geer’s
Test.). Ms. Geer further testified that her mother is “very cruel, callous,” and recounted
instances of her “being abusive.” Id. at 245. Ms. Geer noted that “even prior to these
allegations” against her father, she and her mother “ha[d] an estranged relationship.” Id.
at 254.
After hearing all of the evidence, the state district court denied Mr. Ellis’s motion
3
For example, she testified that her mother had falsely told her and her
siblings—including V.E.—that Mr. Ellis’s “sperm was splattered all over” V.E.’s room
and that he had raped [Ms. Ellis], too.” Id. at 225 (alteration in original).
12
for postconviction relief. Regarding Mr. Ellis’s claim of ineffective assistance, the court
held that he had “fail[ed] to overcome the presumption that sound trial strategy was
used.” Aplt.’s App. Vol. I, at 273. And the court could not “reach the conclusion that the
result would have been different but for trial counsel’s deficient performance.” Id.
Mr. Ellis appealed the denial of his motion for postconviction relief to the CCA.
The CCA affirmed. It held, as relevant here, that the state district court had correctly
concluded that Mr. Stayton was not constitutionally ineffective. It first reasoned that Mr.
Stayton’s failure to consult and/or call an expert forensic psychologist was not deficient
because Mr. Stayton “was familiar with the psychological concepts that an expert forensic
psychologist would have explained,” and “he elicited lay testimony at trial about the
complicated family dynamics and children aligning with mother and against defendant,”
and because Mr. Stayton believed that if he called a forensic psychologist expert, the
State would call its own, and “such conflicting expert testimony would have damaged
defendant’s theory of the case.” Id. at 290–91 (CCA’s Op.). The CCA explained:
“[B]ecause trial counsel’s decision not to utilize a forensic psychologist was strategic, it
was not constitutionally deficient.” Id. at 291.
The CCA also determined that Mr. Stayton’s failure to consult and/or call four
additional witnesses—Ms. Jefferson, Ms. Geer, Dr. Spiegle, and V.E.’s psychologist Dr.
Long—did not constitute constitutionally deficient performance. Regarding Ms.
Jefferson, the CCA reasoned that “[a]lthough defendant contends that trial counsel should
have somehow discovered that [Ms. Jefferson] was lying at trial, without more, we
13
decline to hold that trial counsel was deficient for failing to know of a witness’s apparent
perjury.” Id. at 292. Regarding Ms. Geer and Dr. Spiegle, the CCA determined that their
proposed testimony “about the general conflict in the family” was “brought . . . before the
jury by eliciting testimony about the conflict and resulting alignment from M.E. and [Ms.
Jefferson].” Id. And regarding Dr. Long, the CCA concluded that Mr. Stayton’s
performance was not deficient because (1) he “interviewed Dr. Long before trial,” 2), “it
[was] unclear from the record whether Dr. Long was still treating V.E. at the time of the
sexual abuse,” and (3) “[t]he tactical decision not to call an expert witness is within the
discretion of trial counsel.” Id. at 293.
The CCA also rejected “Additional Alleged Deficiencies” that Mr. Ellis had raised
regarding Mr. Stayton’s performance. Namely, it found meritless Mr. Ellis’s arguments
“that trial counsel’s unspecified ‘mishandling of Rule 404(b) evidence, his ineffective
cross-examination of prosecution witnesses, and his failures to object to improper
questioning by the prosecutor’ constituted deficient performance.” Id. Importantly,
because the CCA concluded that Mr. Ellis had “failed to establish deficient performance,”
it never reached the issue of whether Mr. Stayton’s performance was prejudicial. Id. at
294.
Mr. Ellis did not petition the CSC for certiorari review of the denial of his motion
for postconviction relief. Instead, in 2014, he filed a petition for a writ of habeas corpus
in the United States District Court for the District of Colorado, alleging, inter alia,
ineffective assistance of trial counsel. Specifically, Mr. Ellis alleged that Mr. Stayton’s
14
failures to consult and/or call an expert forensic psychologist, Dr. Long, Dr. Spiegle, Ms.
Jefferson, and Ms. Geer were deficient; Mr. Stayton’s weak cross-examinations,
mishandling of prejudicial evidence, and failure to object to improper prosecution
questioning were deficient; and Mr. Stayton’s deficient performance was prejudicial.
Contrary to both state postconviction court rulings, the federal district court
determined that Mr. Stayton’s representation was “glaringly deficient.” Aplt.’s App. Vol.
I, at 181. The court decided that Mr. Stayton: (1) delegated too many pre-trial
responsibilities to an investigator and delayed in testing DNA and fiber evidence; (2)
should have consulted and called an expert forensic psychologist; and (3) should have
consulted and/or called “multiple members of the Ellis family and psychological
professionals who . . . had firsthand insights into the severe dysfunction in the Ellis family
and Kari Ellis’s behavior.” Id. at 182.
The federal district court then concluded that these deficiencies were prejudicial.
Because the CCA never reached the prejudice prong, the federal district court reviewed
de novo the state district court’s decision and determined that it had applied Strickland
unreasonably. The court explained: “Because the evidence in the record did not
overwhelmingly support Ellis’s guilt, . . . had the jury heard an effective defense
presentation of the physical evidence in the case and the testimony of the witnesses
presented by the defense in the [postconviction] hearing, at least one of the jurors would
have had a reasonable doubt as to Ellis’s guilt.” Id. at 186. Accordingly, the court
granted Mr. Ellis habeas relief, but conditioned it on the State’s decision not to retry him
15
within ninety days.
In response to this ruling, the State filed a motion for additional findings, a motion
to alter order and judgment, and a motion to clarify. Regarding the motion for additional
findings, the district court issued an order stating that, “Having now considered all of the
relevant state court record, this Court finds that there is additional support for the ruling
that Rowe Stayton’s deficient performance undermined confidence in the outcome of the
Ellis trial thereby meeting the prejudice prong of Strickland.” Id. at 246 (Order on Mot.
for Additional Findings) (emphasis added). Regarding the motion to clarify, the court
issued an order clarifying that “the State of Colorado must re-try Mark Stephen Ellis on
the charges upon which he was convicted within 90 days from the entry of the amended
judgment, failing in which he shall be released from custody on those convictions, which
have been vacated by this Court, and upon which no further proceedings shall be
pursued.” Id. at 244 (Order Clarifying J.). The district court stayed enforcement of its
amended judgment through any appeal. The State timely appealed.
II
On appeal, the State raises three claims. It alleges that the district court: (1) erred
in concluding that Mr. Ellis exhausted state remedies on the ineffective-assistance claim;
(2) erred in granting conditional habeas relief on the ineffective-assistance claim; and (3)
abused its discretion in barring retrial after ninety days. We conclude that Mr. Ellis did
exhaust his remedies, but that the district court erred in granting him habeas relief on the
ineffective-assistance claim. These rulings render the third issue—involving the
16
propriety of the district court’s ninety-day retrial condition—effectively moot, so we do
not reach it.
A
First, the State argues that Mr. Ellis failed to exhaust state remedies because he
never petitioned the CSC for discretionary review of his ineffective-assistance claim. We
review de novo a district court’s interpretation of a federal statute. Hain v. Mullin, 436
F.3d 1168, 1176 (10th Cir. 2006) (en banc).
1
The statutory basis for Mr. Ellis’s petition, 28 U.S.C. § 2254, codifies certain
provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See
Pub. L. No. 104-132, § 104, 110 Stat. 1228; see, e.g., Paxton v. Ward, 199 F.3d 1197,
1204 (10th Cir. 1999); Nobles v. Johnson, 127 F.3d 409, 412–13 (5th Cir. 1997). Under
AEDPA, “a state prisoner generally must exhaust available state-court remedies before a
federal court can consider a habeas corpus petition.” Bland v. Sirmons, 459 F.3d 999,
1011 (10th Cir. 2006). More specifically, AEDPA prohibits federal courts from granting
habeas relief to state prisoners who have not exhausted available state remedies. In this
regard, § 2254(b)(1) states, “An application for a writ of habeas corpus . . . shall not be
granted unless it appears that[] . . . the applicant has exhausted the remedies available in
the courts of the State . . . .” 28 U.S.C. § 2254(b)(1). Section 2254(c) elaborates that
“[a]n applicant shall not be deemed to have exhausted the remedies available in the courts
of the State[] . . . if he has the right under the law of the State to raise, by any available
17
procedure, the question presented.” Id. § 2254(c) (emphasis added).
In O’Sullivan v. Boerckel, 526 U.S. 838 (1999), the Supreme Court interpreted
AEDPA’s exhaustion requirement to mean that “a state prisoner must present his claims
to a state supreme court in a petition for discretionary review in order to satisfy
[AEDPA’s] exhaustion requirement.” Id. at 839–40. Critically, however, the Court
stated that its holding does not require “federal courts to ignore a state law or rule
providing that a given [state appellate review] procedure is not available.” Id. at 847–48.
In 2006 the CSC promulgated Colorado Appellate Rule 51.1, which states:
In all appeals from criminal convictions or post-conviction relief . . . ,
a litigant shall not be required to petition for rehearing and certiorari
following an adverse decision of the Court of Appeals in order to be
deemed to have exhausted all available state remedies . . . . Rather,
when a claim has been presented to the Court of Appeals or Supreme
Court, and relief has been denied, the litigant shall be deemed to have
exhausted all available state remedies.
Colo. App. R. 51.1(a) (emphasis added). This court has not yet decided on the effect of
Rule 51.1 in the federal habeas context, when viewed through the prism of O’Sullivan’s
exhaustion holding.
2
The district court concluded that Mr. Ellis exhausted all available state remedies
because he raised his ineffective-assistance claim “before the CCA and was denied
relief,” which is all that Rule 51.1 requires. Aplt.’s App. Vol. I, at 170. Appealing that
determination, the State argues that O’Sullivan made clear that a prisoner must seek
review in the state supreme court in order to exhaust state remedies. The State admits
18
that in O’Sullivan, the Court “acknowledg[ed] the existence of rules like 51.1,” and that
“the majority did not ultimately rule on their effect.” Id. at 16. However, the State argues
that to give effect to rules like 51.1 would be “inconsistent with the reasoning of
O’Sullivan.” Id. at 23.
In response, Mr. Ellis argues that the majority opinion in O’Sullivan indicated that
state rules like 51.1 “could render certiorari review not ‘available’ for purposes of federal
habeas doctrine.” Aplee.’s Br. at 18. He relies on the fact that “the Illinois system
addressed in O’Sullivan did not have such a rule, and the majority opinion did not
invalidate any such rule.” Id. And he points out that one concurring and three dissenting
justices in O’Sullivan “all expressed their view that the majority left the question
open—an interpretation the majority did not contradict.” Id. at 21. Thus, Mr. Ellis
encourages us to hold that Rule 51.1 “sets forth the circumstances under which a litigant
‘shall be deemed to have exhausted all available state remedies.’” Id. at 22 (quoting
Colo. App. R. 51.1(a)).
3
Whether Rule 51.1 permits state prisoners to exhaust all available state remedies
without seeking discretionary relief from the CSC is a question of first impression in this
court. As explicated further infra, all of our sister circuits who have considered
analogous exhaustion questions under rules like Rule 51.1 have concluded that they do
permit state prisoners to effect exhaustion of available state remedies. We reach this
same result with respect to Rule 51.1. As a result, we hold that the district court correctly
19
concluded that Mr. Ellis exhausted all available state remedies on his ineffective-
assistance claim.
In O’Sullivan, the Supreme Court held that a state prisoner had failed to exhaust
state remedies for claims that he did not include in his petition for leave to appeal to the
Illinois Supreme Court, a court of discretionary review, because “a state prisoner must
present his claims to a state supreme court in a petition for discretionary review in order
to satisfy [AEDPA’s] exhaustion requirement.” 526 U.S. at 839–40. The Court reasoned
that “the exhaustion doctrine is designed to give the state courts a full and fair opportunity
to resolve federal constitutional claims before those claims are presented to the federal
courts.” Id. at 845. And, the Court said, “[b]y requiring state prisoners to give the Illinois
Supreme Court the opportunity to resolve constitutional errors in the first instance, the
rule we announce today serves the comity interests that drive the exhaustion doctrine.”
Id. at 846.
When O’Sullivan was decided, Illinois did not have a state rule akin to Colorado’s
Rule 51.1—namely, a rule stating that a petitioner need not petition for discretionary state
supreme court review in order to exhaust all available state remedies. The O’Sullivan
Court acknowledged that some state courts may “not wish to have the opportunity to
review constitutional claims before those claims are presented to a federal habeas court.”
Id. The Court stated that “[u]nder these circumstances,” the petitioner “may be correct
that the increased, unwelcome burden on state supreme courts disserves the comity
interests underlying the exhaustion doctrine.” Id. at 847. The Court continued that
20
because § 2254(c) “directs federal courts to consider whether a habeas petitioner has ‘the
right under the law of the State to raise, by any available procedure, the question
presented,’” the exhaustion doctrine actually “turns on an inquiry into what procedures
are ‘available’ under state law.” Id. As a result, the Court “note[d] that nothing in [its]
decision today requires the exhaustion of any specific state remedy when a State has
provided that that remedy is unavailable.” Id. (emphasis added). “In sum,” the Court
concluded, “there is nothing in the exhaustion doctrine requiring federal courts to ignore a
state law or rule providing that a given procedure is not available”; it held “only that the
creation of a discretionary review system does not, without more, make review in the
Illinois Supreme Court unavailable.” Id. at 847–48.
Three justices wrote separately. Though one authoring justice concurred and the
other two dissented, all three emphasized the limited nature of the majority’s
holding—namely, that the majority did not speak to the circumstances under which states
could declare resort to certain discretionary review procedures unnecessary for purposes
of exhaustion, thereby rendering those procedures effectively unavailable. All three
authoring justices at the very least intimated that such circumstances may well exist, and
two seemed to take a more definitive, affirmative stance on the matter.4
4
Focusing on the votes of the individual justices, and the reasoning they
necessarily endorsed through their votes, a leading treatise on federal habeas law has
similarly interpreted the effect of the separate opinions in O’Sullivan:
The three dissenting Justices—Stevens, Ginsburg, and Breyer—all
explicitly expressed the view that such a state law or rule [that clearly
21
First, writing in concurrence, Justice Souter stated: “I understand the Court to have
left open the question (not directly implicated by this case) whether we should construe
the exhaustion doctrine to force a State, in effect, to rule on discretionary review
applications when the State has made it plain that it does not wish to require such
applications before its petitioners may seek federal habeas relief.” Id. at 849 (Souter, J.,
concurring). Thus, Justice Souter clarified that the majority opinion “should not be read
to suggest . . . that however plainly a State may speak[,] its highest court must be
subjected to constant applications for a form of discretionary review that the State wishes
to reserve for truly extraordinary cases, or else be forced to eliminate that kind of
discretionary review.” Id. at 849–50 (emphasis added).
In conclusion, he reiterated:
I understand that we leave open the possibility that a state prisoner is
likewise free to skip a procedure even when a state court has
occasionally employed it to provide relief, so long as the State has
identified the procedure as outside the standard review process and has
plainly said that it need not be sought for the purpose of exhaustion. It
is not obvious that either comity or precedent requires otherwise.
Id. at 850 (emphasis added).
permitted prisoners to bypass discretionary appeals in exhausting a
claim] would permit a prisoner to forgo a discretionary state appellate
remedy. Concurring Justice Souter implied that this was his view as
well, although he did not say so explicitly. . . . Nonetheless, the
remaining five Justices, who made up the majority along with Justice
Souter, did nothing more than imply that this issue is still open.
2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice & Procedure
§ 23.3[b], at 1292 n.25 (7th ed. 2016) (citations omitted).
22
Second, Justice Stevens dissented in an opinion joined by Justice Ginsburg and
Justice Breyer. He lamented that the majority’s holding would “impose unnecessary
burdens on habeas petitioners; it w[ould] delay the completion of litigation that is already
more protracted than it should be; and, most ironically, it w[ould] undermine federalism
by thwarting the interests of those state supreme courts that administer discretionary
dockets.” Id. at 859 (Stevens, J., dissenting). Justice Stevens explained: “If, as the Court
has repeatedly held, the purpose of our waiver doctrine is to cultivate comity by
respecting state procedural rules, then . . . we should not create procedural obstacles when
state prisoners follow those rules.” Id. at 859–60. However, notably, he added:
Thankfully, the Court leaves open the possibility that state supreme
courts with discretionary dockets may avoid a deluge of undesirable
claims by making a plain statement—as Arizona and South Carolina
have done—that they do not wish the opportunity to review such claims
before they pass into the federal system. I agree with Justice SOUTER
that a proper conception of comity obviously requires deference to such
a policy.
Id. at 861–62 (citations omitted); see also id. at 862 (“The key point is that federal courts
should not find procedural default when a prisoner has relied on a state supreme court’s
explicit statement that criminal defendants need not present to it every claim that they
might wish to assert as a ground for relief in federal habeas proceedings.”).
Third, Justice Breyer dissented in an opinion joined by Justice Ginsburg and
Justice Stevens. Justice Breyer wrote that
whether a state prisoner (who failed to seek discretionary review in a
state supreme court) can seek federal habeas relief depends upon the
State’s own preference. If the State does not want the prisoner to seek
23
discretionary state review (or if it does not care), why should that
failure matter to federal habeas law?
Id. at 862 (Breyer, J., dissenting). However, Justice Breyer “nonetheless s[aw] cause for
optimism,” because “Justice SOUTER’s concurring opinion suggests that a federal
habeas court should respect a State’s desire that prisoners not file petitions for
discretionary review, where the State has expressed the desire clearly.” Id. at 864.
Justice Breyer concluded that “today’s holding creates a kind of presumption that a
habeas petitioner must raise a given claim in a petition for discretionary review in state
court prior to raising that claim on federal habeas, but the State could rebut the
presumption through state law clearly expressing a desire to the contrary. South Carolina
has expressed that contrary preference. Other States may do the same.” Id. at 864
(citation omitted). Indeed, Justice Breyer “wr[o]te to emphasize the fact that the majority
has left the matter open.” Id.
Consistent with O’Sullivan’s emphasis on comity, some of our sister
circuits—specifically, four—when considering analogous exhaustion questions under
state rules similar to Rule 51.1, have concluded that those rules permit prisoners to
exhaust available state remedies. First, in Swoopes v. Sublett, 196 F.3d 1008 (9th Cir.
1999) (per curiam), the Ninth Circuit held that because “the Arizona Supreme Court has
announced that . . . review need not be sought before the Arizona Supreme Court in order
to exhaust state remedies,” “post-conviction review before the Arizona Supreme Court is
a remedy that is ‘unavailable’ within the meaning of O’Sullivan.” 196 F.3d at 1010. The
24
court reasoned:
Although review before the Arizona Supreme Court is discretionary, it
is “available” under O’Sullivan; thus, at least facially, Arizona
prisoners are not relieved of their duty to file an appeal with that court.
However, the question is whether Arizona has identified discretionary
Supreme Court review ‘as outside the standard review process and has
plainly said that it need not be sought for the purpose of exhaustion.’
It plainly has.
Id. (citation omitted). In short, the Ninth Circuit concluded that because “Arizona has
declared that its ‘complete round’ [of the State’s appellate review process] does not
include discretionary review before the Arizona Supreme Court,” “post-conviction review
before the Arizona Supreme Court is a remedy that is ‘unavailable’ within the meaning of
O’Sullivan.” Id. at 1010 (stating that it “must credit Arizona’s choice”). The court
explained: “The import of O’Sullivan is that exhaustion is not required when a state
declares which remedies are ‘available’ for exhaustion. Arizona has done so.” Id. at
1011.
Second, in Randolph v. Kemna, 276 F.3d 401, 404–05 (8th Cir. 2002), the Eighth
Circuit gave effect to a Missouri Supreme Court rule stating that its discretionary review
“is an extraordinary remedy that is not part of the standard review process for purposes of
federal habeas corpus review.” Id. at 404 (quoting Mo. Sup. Ct. R. 83.04). The court
reasoned that “O’Sullivan held that where a state articulates that a certain avenue is not
part of its appellate review process, it is not necessary that prisoners pursue that avenue,”
and the court concluded that Missouri’s state rule “constitute[d] an unequivocal statement
about where Missouri’s ‘one complete round of the state’s established appellate review
25
process’ stops and ma[d]e[] clear that Missouri does not consider a petitioner who
bypasses its supreme court in favor of federal habeas review to have denied the State its
rightful ‘opportunity to resolve federal constitutional claims.’” Id. (quoting O’Sullivan,
526 U.S. at 845). Because the court “c[ould] ask for no more clear statement than that,” it
gave effect to Missouri’s state rule. Id. at 405.
Third, in Adams v. Holland, 330 F.3d 398, 401–03 (6th Cir. 2003), the Sixth
Circuit upheld a Tennessee Supreme Court rule declaring that “a litigant shall not be
required to petition for rehearing or to file an application for permission to appeal to the
Supreme Court of Tennessee following an adverse decision of the Court of Criminal
Appeals in order to be deemed to have exhausted all available state remedies.” Id. at 401
(quoting Tenn. Sup. Ct. R. 39). Observing that “[t]he O’Sullivan Court[] . . . explicitly
excepted from its holding cases in which the state has explicitly disavowed state supreme
court review as an ‘available state remedy,’” id., the Sixth Circuit reasoned that the state
rule “clearly removed Tennessee Supreme Court review as an antecedent for habeas
purposes,” id. at 402. In doing so, the court rejected an argument that the rule did not
technically make Tennessee Supreme Court review “unavailable, . . . since litigants have
not been explicitly prohibited from appealing to the state supreme court”; the court
explained that this argument “fails to grasp the meaning of the word ‘available’ as it is
used in O’Sullivan, and instead dwells upon a hypertechnical interpretation of that term.”
Id. The court continued, moreover, that this “misinterpretation is revealed by the
O’Sullivan Court’s examples of what might constitute making state supreme court review
26
unavailable: namely, rules passed by the Supreme Courts of South Carolina and Arizona,”
id., and it noted that its own “view of the O’Sullivan opinion is bolstered by the
concurring opinion of Justice Souter from that case.” Id. at 403. Thus, the Sixth Circuit
held that Tennessee’s state rule “rendered Tennessee Supreme Court review ‘unavailable’
in the context of habeas relief.” Id.
And, fourth, in Lambert v. Blackwell, 387 F.3d 210 (3d Cir. 2004), the Third
Circuit held that a Pennsylvania Supreme Court order (i.e., Order No. 218) declaring that
“a litigant shall not be required to petition for rehearing or allowance of appeal following
an adverse decision by the Superior Court in order to be deemed to have exhausted all
available state remedies” rendered “review from the Pennsylvania Supreme Court
‘unavailable’ for purposes of exhausting state court remedies under § 2254(c).” 387 F.3d
at 233 (quoting Order No. 218). The court reasoned that the O’Sullivan Court “took
pains[] . . . to state that ‘there is nothing in the exhaustion doctrine requiring federal
courts to ignore a state law or rule providing that a given procedure is not available.’” Id.
at 232 (quoting O’Sullivan, 526 U.S. at 847–48). And the court concluded that
Pennsylvania’s state rule “is the something ‘more’ that makes the Pennsylvania Supreme
Court’s discretionary review system ‘unavailable.’” Id. at 233 (citation omitted).
In analyzing the federal-habeas exhaustion implications of Rule 51.1, we are
persuaded by the holdings of the four circuits and believe that they correctly give effect to
the concerns expressed in O’Sullivan. Concern for comity primarily motivated the
outcome of that case: the Supreme Court stated that it wanted to give state courts the
27
opportunity to resolve state cases in the first instance before federal courts could intrude.
See O’Sullivan, 526 U.S. at 844 (“Comity thus dictates that . . . the state courts should
have the first opportunity to review [a] claim and provide any necessary relief.”); id. at
845 (“[T]he exhaustion doctrine is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are presented to
the federal courts.”); id. (“Comity, in these circumstances, dictates that Boerckel use the
State’s established appellate review procedures before he presents his claims to a federal
court.”); id. at 846 ([T]he rule we announce today serves the comity interests that drive
the exhaustion doctrine.”).
Further, when the Court seemingly left open the question we address today, it
clearly suggested that failing to give effect for exhaustion purposes to state rules like
Colorado’s Rule 51.1 might not serve the interests of comity that underlay its holding.
See id. at 847 (stating that the petitioner “may be correct that the increased, unwelcome
burden on state supreme courts disserves the comity interests underlying the exhaustion
doctrine”); see also id. (stating that because § 2254(c) “directs federal courts to consider
whether a habeas petitioner has ‘the right under the law of the State to raise, by any
available procedure, the question presented,’” the exhaustion doctrine actually “turns on
an inquiry into what procedures are ‘available’ under state law”); id. (“[T]here is nothing
in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing
that a given procedure is not available.”). In light of the concern for comity underlying
O’Sullivan, and the persuasive holdings of our four sister circuits, we conclude that Rule
28
51.1 renders CSC review “unavailable” for purposes of AEDPA exhaustion. Thus, we
hold that pursuant to Rule 51.1, Mr. Ellis exhausted state remedies for his ineffective-
assistance claim, and we proceed to consider the merits of that claim.
B
Having determined that Mr. Ellis properly exhausted state remedies, we turn to the
question of whether he received constitutionally ineffective assistance of counsel. Mr.
Ellis and the State dispute whether Mr. Stayton was constitutionally ineffective for failing
to consult and/or call the following witnesses: (1) an expert forensic psychologist; (2) Dr.
Long, a clinical psychologist who had counseled V.E.; (3) Dr. Spiegle, the Ellis children’s
court-appointed special advocate in their parents’ divorce proceedings; (4) Ms. Jefferson,
V.E.’s eldest sister; and (5) Ms. Geer, another of V.E.’s sisters. Mr. Ellis argues that
these alleged deficiencies were both individually and cumulatively prejudicial; the State
rejects this conclusion.
In addition, the State argues that the federal district court erred “by sua sponte
raising and aggregating prejudice from ineffective-assistance claims Petitioner never
raised” in the CCA—specifically, by ruling that “counsel’s failure to secure additional
forensic testing” and his “agreement to waive the recording of closing arguments”
constituted deficient performance. Aplt.’s Opening Br. at 45. Mr. Ellis responds that
even though the district court’s “ruling is somewhat expansive and encompasses
additional grounds not raised by Mr. Ellis,” his ineffective-assistance claim “as a whole”
is not procedurally defaulted, and he notes that we “may affirm the judgment on any basis
29
evident in the record.” Aplee.’s Br. at 25.
We begin by analyzing each of the claims relating to particular witnesses and
conclude that the federal district court erred in concluding that the CCA’s ineffective-
assistance determinations were unreasonable and thus legally untenable. Specifically,
regarding Mr. Stayton’s decisions not to interview and/or call an expert forensic
psychologist, Dr. Spiegle, Ms. Jefferson, and Ms. Geer, we conclude that the CCA was
not unreasonable in determining that these decisions were strategic and not
constitutionally deficient. Additionally, regarding Mr. Stayton’s decision not to consult
and/or call Dr. Long—assuming arguendo that the CCA unreasonably deemed this
decision an instance of constitutionally deficient performance, but not definitively
determining what standard of review should apply to any prejudice analysis of Mr.
Stayton’s decision—we conclude that even under the standard of review most favorable
to Mr. Ellis, that is, de novo review, he cannot show prejudice stemming from Mr.
Stayton’s failure to consult and/or call Dr. Long. Thus, in sum, we conclude that Mr.
Ellis is not entitled to habeas relief on the basis of Mr. Stayton’s failure to consult and/or
call each of these witnesses. And, because there is only one assumed error regarding Dr.
Long, we do not conduct a cumulative-error analysis.
We lastly turn to the State’s argument that the federal district court erred by
factoring into its grant of habeas relief ineffective-assistance claims that Mr. Ellis never
raised before the CCA. Mr. Ellis does not dispute that he never presented these
ineffective-assistance claims to the CCA but he contends that the attorney errors on which
30
the claims are based can individually and cumulatively provide alternative grounds for
affirming the district court’s ineffective-assistance ruling. We disagree. We conclude
that the district court erroneously considered Mr. Ellis’s additional ineffective-assistance
claims—which were unexhausted and procedurally defaulted—in granting habeas relief.
And it would be improper for us to consider them now. We reverse the district court’s
judgment.
1
“Under AEDPA, the standard of review applicable to a particular claim depends
on how that claim was resolved by the state courts.” Byrd v. Workman, 645 F.3d 1159,
1165 (10th Cir. 2011). “[I]f there has been no state-court adjudication on the merits of
the petitioner’s claim,” “we review the district court’s legal conclusions de novo and its
factual findings for clear error.” Id. at 1166–67. In contrast, “[w]here the state court has
adjudicated a claim on the merits, we may only grant relief 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.’” Id. (citation omitted) (quoting 28 U.S.C. § 2254(d)(1), (d)(2)).
For claims adjudicated on the merits, therefore, “AEDPA imposes a ‘highly
deferential standard for evaluating state-court rulings’—one that ‘demands that state-
court decisions be given the benefit of the doubt,’” and that “prohibits us from
substituting our own judgment for that of the state court.” Id. at 1166 (citations omitted).
31
“If this standard is difficult to meet, that is because it was meant to be.” Harrington v.
Richter, 562 U.S. 86, 102 (2011). AEDPA provides that “[a]s a condition for obtaining
habeas corpus from a federal court, a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103. Under this standard, “[e]ven a strong case for
relief does not make the state court’s contrary conclusion unreasonable.” Id. at 102.
As for the substantive standards applicable here, to prevail on a claim of
ineffective assistance, “[f]irst, the defendant must show that counsel’s performance was
deficient. . . . Second, the defendant must show that the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687–88 (1984); see Byrd, 645 F.3d
at 1167 (noting that a defendant “must show both that his counsel’s performance ‘fell
below an objective standard of reasonableness’ and that ‘the deficient performance
prejudiced the defense’” (quoting Strickland, 466 U.S. at 687–88). Under the first
Strickland prong, performance, “the standard for judging counsel’s representation is a
most deferential one” under which “[t]he question is whether an attorney’s representation
amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated
from best practices or most common custom.” Harrington, 562 U.S. at 105 (quoting
Strickland, 466 U.S. at 690).
The Supreme Court has recognized that there are “countless ways to provide
effective assistance in any given case,” “the best criminal defense attorneys would not
32
defend a particular client in the same way,” and “[r]are are the situations in which the
‘wide latitude counsel must have in making tactical decisions’ will be limited to any one
technique or approach.” Id. at 106 (quoting Strickland, 466 U.S. at 689). As a result, the
Court has held that “[c]ounsel [i]s entitled to formulate a strategy that [i]s reasonable at
the time and to balance limited resources in accord with effective trial tactics and
strategies.” Id. at 107.
When a petitioner raises a claim of ineffective assistance in a habeas petition, our
“highly deferential” assessment of counsel’s performance under Strickland’s first prong,
[Danny] Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010), is “doubly” so, Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009), because we deferentially evaluate counsel’s
performance through the prism of AEDPA’s deference to the state court’s assessment of
counsel’s performance. See Byrd, 645 F.3d at 1168 (noting that “[w]e defer to the state
court’s determination that counsel’s performance was not deficient and, further, defer to
the attorney’s decision in how to best represent a client” (alteration in original) (quoting
Crawley v. Dinwiddie, 584 F.3d 916, 922 (10th Cir. 2009))). Put another way, applying
the first layer of deference, we review only “whether the state court’s application of the
Strickland standard was unreasonable.” Harrington, 562 U.S. at 101 (emphasis added).
Applying the second layer, we “apply a ‘strong presumption’ that counsel’s
representation was within the ‘wide range’ of reasonable professional assistance.” Id. at
104 (quoting Strickland, 466 U.S. at 689). As the Court cautioned in Harrington,
“Federal habeas courts must guard against the danger of equating unreasonableness under
33
Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question
is not whether counsel’s actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
(emphasis added); accord [Victor] Hooks v. Workman, 689 F.3d 1148, 1187 (10th Cir.
2012).
As for the prejudice prong (i.e., the second prong), the Strickland Court opined:
“The 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. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” 466 U.S. at 694; accord Harrington, 562 U.S. at 787; [Victor] Hooks, 689
F.3d at 1187. “It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding. . . . [N]ot every error that
conceivably could have influenced the outcome undermines the reliability of the result of
the proceeding.” Strickland, 466 U.S. at 693 (citation omitted); accord [Victor] Hooks,
689 F.3d at 1187; see also Byrd, 645 F.3d at 1168 (noting that “mere speculation is not
sufficient to satisfy this burden” under Strickland’s prejudice prong). Expanding on this
proposition, the Court in Harrington observed:
In assessing prejudice under Strickland, the question is not whether a
court can be certain counsel’s performance had no effect on the
outcome or whether it is possible a reasonable doubt might have been
established if counsel acted differently. Instead, Strickland asks
whether it is “reasonably likely” the result would have been different.
This does not require a showing that counsel’s actions “more likely
than not altered the outcome,” but the difference between Strickland’s
34
prejudice standard and a more-probable-than-not standard is slight and
matters “only in the rarest case.” The likelihood of a different result
must be substantial, not just conceivable.
562 U.S. at 111–12 (emphasis added) (citations omitted) (quoting Strickland, 466
U.S. at 693, 696).
In order to succeed on an ineffective-assistance claim, a petitioner must
satisfy both prongs of the Strickland test. Strickland, 466 U.S. at 687; accord
[Victor] Hooks, 689 F.3d at 1186; Byrd, 645 F.3d at 1167. But, notably, “[c]ourts
are free to address these two prongs in any order.” Byrd, 645 F.3d at 1168; see
Strickland, 466 U.S. at 668 (“Although we have discussed the performance
component of an ineffectiveness claim prior to the prejudice component, there is
no reason for a court deciding an ineffective assistance claim to approach the
inquiry in the same order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one.”).
We address each of Mr. Ellis’s ineffective-assistance claims below. With
the exception of the claim involving Mr. Stayton’s failure to consult and/or call Dr.
Long, which we resolve under Strickland’s prejudice prong, we rule on the claims
by examining whether the district court erred in concluding that the CCA
unreasonably determined that counsel’s performance was not constitutionally
deficient (i.e., Strickland’s performance prong).
35
2
First, we address Mr. Stayton’s decisions not to consult and/or call four
witnesses. Under AEDPA’s doubly deferential standard of review—in which we
defer to both the CCA’s determination that Mr. Stayton’s performance was not
constitutionally deficient and Mr. Stayton’s decisions regarding how to represent
his client—we conclude that the federal district court erred in determining that the
CCA unreasonably concluded that Mr. Stayton was constitutionally ineffective.
We address each of the witnesses below.
a
First, we conclude that the CCA’s application of Strickland’s performance
prong to Mr. Stayton’s decision not to consult an expert forensic psychologist was
not unreasonable. The CCA concluded that Mr. Stayton’s decision fell within the
range of reasonable performance because he believed that, if he called an expert
forensic psychologist to testify, the State would call its own, and “such conflicting
expert testimony would have damaged defendant’s theory of the case.” Aplt.’s
App. Vol. I, at 290–91. Instead, he chose to elicit the relevant psychological
theories—with which he was very familiar—through cross-examination of state
witnesses.
The record provides support for the CCA’s conclusion. As he recounted at
the postconviction evidentiary hearing, Mr. Stayton decided at trial that calling an
expert would open the defense to “a lot of attack”—attacks that, based on his
36
experience, Mr. Stayton feared would undercut his chances of prevailing. Aplt.’s
App. Vol. VI, at 229. He believed that he could convey the relevant psychological
themes to the jury through cross-examination of state witnesses, instead. And he
was well equipped to do so. Mr. Stayton, a specialist in child sexual assault cases,
had taught lectures involving the psychological theories involved in Mr. Ellis’s
case to defense attorneys around the country. Specifically, at the hearing, Mr.
Stayton testified that he was familiar enough with theories of parental alienation
and childhood memory “to prepare [his] cross-examination of the witnesses,” “to
prepare [his] presentation of evidence,” and “to prepare both [his] opening
statements and closing arguments” in this case. Aplt.’s App. Vol. VI, at 231–32.
Accordingly, “throughout the trial,” Mr. Stayton worked to lay the
groundwork for his theory of parental alienation and, more specifically, to
establish that V.E. was falsely accusing Mr. Ellis because “Kari was really mad at
Mark, and . . . [V.E.] had read her mom, and she was more closely aligned with her
mom.” Id. at 226 (alteration in original). Mr. Stayton elicited from cross-
examination of V.E. that she was angry at her father, that she did not like him, and
that she felt closer to her mother. He elicited from Ms. Jefferson that she had
“allied [her]self with [their] mother” and that Ms. Geer had “allied herself with”
their father. Aplt.’s App. Vol. III, at 256. He was able to get M.E. to confirm that
Ms. Geer “being close to her dad is the same as [him] being close to [their] mom,”
id. at 74, that he “dislike[d] [his] father a great deal,” and that he was “angry at [his
37
father] for what he was doing to [their] family,” id. at 56. Mr. Stayton
believed—not unreasonably—that he was effectively conveying the relevant
psychological theories to the jury; he testified that he “just felt from [his]
perception that they were making the points that we should.” Aplt.’s App. Vol.
VI, at 229.
Not only did Mr. Stayton assert that the relevant theories were already “in
front of” the jury, id. at 230, but, based on his experience, he opined that the
theories were “easy” and “intuitive,” id. at 233. He testified that “[y]ou don’t have
to have a master’s degree to understand that one parent can manipulate a child,”
id., that he “didn’t think you needed an expert to tell [the jury] that[;] they either
believed the child or they don’t,” and that he believed that it “would be insulting to
the jury to try to point out the parental alienation” with an expert, id. at 230. In
Mr. Stayton’s experienced opinion, therefore, there were multiple reasons why he
did not need to call an expert forensic psychologist to convey the relevant
psychological theories to the jury. In our view, based on this record, it was not
unreasonable for the CCA to conclude that Mr. Stayton’s decision to not consult or
call as a witness a forensic psychologist was strategic and reasonable.
This is sufficient to defeat a Strickland claim. See Harrington, 562 U.S. at
105; see also Strickland, 466 U.S. at 681 (“Because advocacy is an art and not a
science, and because the adversary system requires deference to counsel’s
informed decisions, strategic choices must be respected in these circumstances if
38
they are based on professional judgment.”); cf. Harrington, 562 U.S. at 108
(stating that, even if certain expert testimony could have supported a defense, it is
“reasonable to conclude that a competent attorney might elect not to use it”).
Thus, deferring to both “the state court’s determination that counsel’s performance
was not deficient and, further, . . . to the attorney’s decision in how to best
represent a client,” Byrd, 645 F.3d at 1168 (quoting Crawley, 584 F.3d at 922), we
conclude that the CCA reasonably determined that Mr. Stayton’s decision not to
consult and/or call an expert forensic psychologist was not constitutionally
deficient.
b
Second, we conclude that the CCA’s application of Strickland’s
performance prong to Mr. Stayton’s decisions not to call—even after endorsing
him as an expert—Dr. Spiegle, and not to present to the jury the letters that Dr.
Spiegle wrote about Ms. Ellis’s conduct in the divorce case, was not unreasonable.
Mr. Ellis claims that Dr. Spiegle’s testimony and letters to the divorce court “could
have provided important evidence of Kari Ellis’s manipulative conduct and how
she placed her own needs for revenge ahead of the best interests of her children.”
Aplee.’s Br. at 49. Dr. Spiegle’s letters to the divorce court show that Ms. Ellis
was obstructing Mr. Ellis’s access to their children during the divorce proceedings
by ignoring his requests to give them birthday and Christmas gifts. They also
show that she (unsuccessfully) moved to dismiss Dr. Spiegle as the children’s
39
special advocate in the divorce proceedings. However, the CCA found that Mr.
Stayton presented the substance of this evidence to the jury through the cross-
examination of both M.E. and Ms. Jefferson.
Mr. Stayton testified, and the CCA agreed, that he had deliberately decided,
as part of his trial strategy, not to call Dr. Spiegle because he believed that the
defense did not need Dr. Spiegle’s testimony. It would have been reasonable for
the CCA to infer from the fact that Mr. Stayton was prepared to call Dr. Spiegle
and endorsed him as a defense witness—but ultimately decided not to call him
because Mr. Stayton believed that he had already presented the evidence through
cross-examination of state witnesses—that Mr. Stayton’s decision was an
“exercise of reasonable professional judgment” regarding how best to represent his
client. Byrd, 645 F.3d at 1168 (citation omitted). Furthermore, we have
repeatedly held that whether to call a particular witness is within the sound
discretion of trial counsel. See Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir.
2008) (“[T]he decision of which witnesses to call is quintessentially a matter of
strategy for the trial attorney.”); DeLozier v. Sirmons, 531 F.3d 1306, 1324 (10th
Cir. 2008) (“Generally, the decision whether to call a witness rests within the
sound discretion of trial counsel.” (quoting Jackson v. Shanks, 143 F.3d 1313,
1320 (10th Cir. 1998))); United States v. Miller, 643 F.2d 713, 714 (10th Cir.
1981) (“Whether to call a particular witness is a tactical decision and, thus, a
‘matter of discretion’ for trial counsel.” (citation omitted)); United States v.
40
Dingle, 546 F.2d 1378, 1385 (10th Cir. 1976) (“It is a matter of discretion on the
part of trial counsel to exercise judgment in the determination of witnesses to be
called and the testimony to be elicited.”).
In sum, we conclude that it was not unreasonable for the CCA to determine
that Mr. Stayton was not constitutionally deficient for declining to call Dr. Spiegle
as a witness and to present to the jury the letters that Dr. Spiegel wrote about Ms.
Ellis’s conduct during the divorce.
c
Third, we conclude that the CCA’s application of Strickland’s performance
prong to Mr. Stayton’s decision not to interview Ms. Jefferson fell within the range
of reasonableness. The CCA stated, “Although defendant contends that trial
counsel should have somehow discovered that [Ms. Jefferson] was lying at trial,
without more, [it could not] hold that trial counsel was deficient for failing to
know of a witness’s apparent perjury.” Aplt.’s App. Vol. I, at 292. In addition,
the CCA found that Mr. Stayton “elicited testimony from the detective who
interviewed V.E. suggesting that [the] mother had coached or influenced V.E.
during the investigation, as well as testimony from M.E. and [Ms. Jefferson] that
they had aligned with mother against defendant.” Id. at 297.
It was reasonable for the CCA to decide that Mr. Stayton was not
constitutionally ineffective for failing to interview Ms. Jefferson before trial. Ms.
Jefferson was a state witness. At the time of trial, she was receiving all of her
41
information about her father from her mother, and she “wanted to do everything
[she] possibly could to help get [her father] put away.” Aplt.’s App. Vol. V, at
224. In fact, Ms. Jefferson was so strongly aligned with her mother—and hostile
to her father—that she “rehears[ed] and coach[ed] [V.E.] from the very first day
this allegation came to light,” and then lied about it on the stand. Id. at 223
(alterations in original). Mr. Stayton knew that the Ellis family was extremely
divided, and that Ms. Jefferson was aligned with her mother. And Mr. Stayton
could well expect that she would testify for the state. It was within the range of
reasonableness for him to spend his time on other preparations for trial instead of
on trying to interview an uncooperative witness. See Harrington, 562 U.S. at 107
(“Counsel was entitled to formulate a strategy that was reasonable at the time and
to balance limited resources in accord with effective trial tactics and strategies.”);
Strickland, 466 U.S. at 691 (concluding that, when counsel has “reason to believe
that pursuing certain investigations would be fruitless or even harmful, counsel’s
failure to pursue those investigations may not later be challenged as
unreasonable”); Morva v. Zook, 821 F.3d 517, 528–29 (4th Cir. 2016) (finding no
deficient performance under Strickland when attorney failed to interview several
witnesses prior to death-penalty phase of defendant’s trial); Hanson v. Sherrod,
797 F.3d 810, 828 (10th Cir. 2015) (finding no deficient performance under
Strickland when attorney declined to interview a potentially hostile witness before
trial or to call that witness to testify); Hoffman v. Cain, 752 F.3d 430, 446 (5th Cir.
42
2014) (finding no deficient performance under Strickland in attorneys’ failure to
interview witnesses before trial, and noting that the attorneys “made a reasonable
decision not to investigate [the potential witnesses] further” and instead “chose a
strategy of discrediting the State’s theory of the case”); see also Byrd, 645 F.3d at
1168 (stating that to be deficient, performance “must have been completely
unreasonable, not merely wrong” (emphasis added) (citation omitted)).
For these reasons, we conclude that the CCA’s determination regarding Mr.
Stayton’s decision not to interview Ms. Jefferson was not unreasonable.
d
Fourth, we conclude that the CCA’s application of Strickland’s
performance prong to Mr. Stayton’s decision not to call Ms. Geer was not
unreasonable. The CCA found that Ms. Geer would have testified “about the
general conflict in the family, including how the fighting between defendant and
mother caused the children to align with one parent or the other.” Aplt.’s App.
Vol. I, at 292. However, the CCA found that Mr. Stayton “brought this evidence
before the jury by eliciting testimony about the conflict and resulting alignment
from M.E. and [Ms. Jefferson].” Id.
Specifically, Mr. Stayton deliberately chose to elicit the evidence about
which Ms. Geer could have testified—evidence of Ms. Ellis’s allegedly vengeful
attitude and her children’s alignment with her—through cross-examination of state
witnesses. He testified that throughout trial, he tried to establish “that Kari was
43
really mad at Mark, and that what happened is that [V.E.] had read her mom, and
she was more closely aligned with her mom.” Aplt.’s App. Vol. VI, at 226. Mr.
Stayton had significant discretion to make this decision. See Boyle, 544 F.3d at
1139 (“[T]he decision of which witnesses to call is quintessentially a matter of
strategy for the trial attorney.”); accord Dingle, 546 F.2d at 1385. And because
Mr. Stayton’s decision reflected an intentional, strategic choice, within a trial
lawyer’s customary discretion, we cannot conclude that the CCA was
unreasonable in determining that Mr. Strayton’s decision not to call Ms. Geer was
not constitutionally deficient performance. Put another way, the CCA did not
unreasonably apply Strickland in concluding that Mr. Stayton’s decision not to call
Ms. Geer was within the “wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689; accord Byrd, 645 F.3d at 1168.
3
Relying on Strickland’s second prong, we conclude that Mr. Ellis has failed
to show that he was prejudiced by Mr. Stayton’s decision not to consult and/or call
Dr. Long after endorsing him as a defense expert. The CCA resolved this issue
under Strickland’s performance prong, but the parties agree that the CCA’s
analysis was based on an erroneous factual finding. Specifically, contrary to what
the CCA found, there is no evidence in the record that Mr. Stayton “interviewed
Dr. Long before trial.” Aplt.’s Opening Br. at 72.
As a result of this uncontested error, the parties agree that we should review
44
the performance prong de novo, but they disagree about how we should review the
prejudice prong. Mr. Ellis argues that because the CCA never reached the
prejudice prong, we should review it de novo. The State responds that we should
review the prejudice prong with AEDPA deference because: (1) a state
court—specifically, the state district court—adjudicated prejudice on the merits,
even though this was not the court of last resort (here, the CCA); and (2) the
CCA’s factual error affected only the performance prong that it adjudicated, not
the prejudice prong that it did not reach. Given the parties’ agreement on the
matter, we assume for purposes of our analysis that the CCA in fact erred at
Strickland’s performance prong, but we elect to elide a de novo analysis of this
prong of Strickland. See, e.g., Strickland, 466 U.S. at 668. Instead, we advance to
the question of prejudice. There, we need not resolve the standard-of-review
question because, even applying the standard of review most favorable to Mr.
Ellis—de novo review—Mr. Ellis has not shown that Mr. Stayton’s failure to
consult and/or call Dr. Long caused prejudice; this holding dooms Mr. Ellis’s
ineffective-assistance claim.
As we explicated supra, to satisfy Strickland’s prejudice prong, Mr. Ellis
must establish “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694; accord
Byrd, 645 F.3d at 1168; United States v. Challoner, 583 F.3d 745, 749 (10th Cir.
2009). Applying de novo review, we conclude that there is no reasonable
45
probability that Dr. Long’s testimony would have changed the outcome of trial.
Mr. Ellis argues that Dr. Long could have testified that “as a licensed psychologist
in Colorado, he has a duty to make an official report if a child patient discloses
having been sexually abused,” and that he “never reported any allegation that Mr.
Ellis had sexually abused anyone.” Aplee.’s Br. at 47. In short, Mr. Ellis argues
that Dr. Long could have testified that V.E. never disclosed to him that her father
was sexually assaulting her; Mr. Ellis reasons that this testimony would have been
strong evidence to the jury that Mr. Ellis did not in fact sexually assault V.E.
However, as the State reasonably suggests, “the fact that an adopted nine-year-old
girl did not volunteer to her male adult counselor that her father was molesting her
is hardly an impressive fact that, had the jury known it, would likely have
produced an acquittal.” Aplt.’s Opening Br. at 72. Indeed, V.E. “never disclosed
M.E.’s abuse in counseling, and . . . M.E. molested [V.E.] during the same time
frame.” Aplt.’s Reply Br. at 14–15. Thus, it is unlikely that the jury would have
found to be significantly exculpatory V.E.’s non-disclosure of Mr. Ellis’s alleged
sexual assault. For this reason alone, Mr. Stayton’s failure to consult and/or call
Dr. Long does not undermine our confidence in the outcome of the trial.
In addition, the CCA found that “it is unclear from the record whether Dr.
Long was still treating V.E. at the time of the sexual abuse.” Aplt.’s App., Vol. I,
at 293. This assessment of the facts is presumed to be correct, and Mr. Ellis has
not rebutted its correctness “by clear and convincing evidence.” 28 U.S.C.
46
§ 2254(e)(1); see also Aplt.’s App. Vol. III, at 246–47 (evincing Ms. Ellis’s
testimony that V.E. saw Dr. Long only when she first moved in with the Ellises,
when she was three or four, for a couple of years related to the termination of her
biological mother’s parental rights, and then “when the allegations came up,” but
that she did not see him for “several years” in between). Accordingly, we accept it
as being accurate. Without proof that Dr. Long was even treating V.E. at the time
of the assault, we have yet another reason for concluding that Mr. Ellis has failed
to establish prejudice related to Mr. Stayton’s decision (assumed to be erroneous)
for failing to consult and/or call as an expert witness Dr. Long.
In sum, even applying de novo review, we conclude that Mr. Ellis has failed
to show any reasonable probability that, but for Mr. Stayton’s failure to consult
and/or call Dr. Long, the result of the proceeding would have been different—viz.,
Mr. Ellis has failed to establish that he was prejudiced by this.
4
“In the federal habeas context, the only otherwise harmless errors that can
be aggregated are federal constitutional errors, and such errors will suffice to
permit relief under cumulative error doctrine only when the constitutional errors
committed in the state court trial so fatally infected the trial that they violated the
trial’s fundamental fairness.” Matthews v. Workman, 577 F.3d 1175, 1195 n.10
(10th Cir. 2009) (quoting Young v. Sirmons, 551 F.3d 942, 972 (10th Cir. 2008));
accord Littlejohn v. Trammell, 704 F.3d 817, 868 (10th Cir. 2013). This doctrine
47
applies in the context of Strickland, where counsel’s individual actions have been
found to be constitutionally deficient, but nonprejudical. See Cargle v. Mullin, 317
F.3d 1196, 1207 (10th Cir. 2003) (“Strickland errors require us to assess whether
there is a reasonable probability that counsel’s deficient performance affected the
trial outcome . . . . [S]uch claims should be included in the cumulative-error
calculus if they have been individually denied for insufficient prejudice.”
(footnotes omitted)). However, because we have discerned through the lens of
AEDPA only one possible instance of deficient performance (i.e., error)—that is,
the assumed Strickland error stemming from counsel’s failure to consult or call as
an expert witness Dr. Long—we need not address Mr. Ellis’s argument for
cumulative prejudice; there must be more than one error to conduct cumulative-
error analysis. See United States v. Willis, 826 F.3d 1265, 1280 (10th Cir. 2016)
(“[A]t most, we have assumed one error for purposes of our analysis: that Agent
Willis was permitted to vouch for K.M.’s credibility. Under these circumstances,
we reject Mr. Willis’s argument because there are not multiple errors to
cumulate.”).
5
Lastly, we address the State’s claim that the federal district court “erred at
the outset by sua sponte raising and aggregating prejudice from ineffective-
assistance claims Petitioner never raised.” Aplt.’s Opening Br. at 45. The State
argues that the court inappropriately considered: (1) Mr. Stayton’s failure to secure
48
additional forensic testing; and (2) his agreement to waive the recording of closing
arguments. Specifically, the State explains that because Mr. Ellis “never asserted
these acts as independent Strickland claims in state or federal court,” they are
procedurally defaulted.5 Id. Mr. Ellis does not dispute that he never before raised
these ineffective-assistance claims, but he contends that the errors on which they
are based can individually and cumulatively provide alternative grounds for
affirmance. See Aplee.’s Br. at 25 (“Respondents argue that because the district
court’s IAC ruling is somewhat expansive and encompasses additional grounds not
raised by Mr. Ellis, the claim as a whole is somehow procedurally
defaulted. . . . [But] the reviewing court may affirm the judgment on any basis
evident in the record” (emphasis added)). Notably, Mr. Ellis does not assert any
legal grounds that might conceivably excuse this procedural failing. We conclude
that because Mr. Ellis failed to raise these ineffective-assistance claims before the
CCA, the claims are now—and were at the time the district court considered them
in granting habeas relief—procedurally defaulted. Consequently, the district court
erred in taking these claims into account in granting habeas relief, and we cannot
5
We do not question—and Mr. Ellis has certainly not given us any reason to
do so—that the State has adequately invoked a procedural-default defense here to bar
consideration of the two ineffective-assistance grounds. See, e.g., Gray v. Netherland,
518 U.S. 152, 166 (1996) (“[T]he Commonwealth would have been obligated to raise
procedural default as a defense, or lose the right to assert the defense thereafter.”);
McCormick v. Parker, 821 F.3d 1240, 1245 (10th Cir. 2016) (“[P]rocedural default is an
affirmative defense, and the state must either use it or lose it.”).
49
consider them here.
As noted, 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.
See, e.g., Hawkins v. Mullin, 291 F.3d 658, 669 (10th Cir. 2002) (“In order to
exhaust his state remedies, a federal habeas petitioner must have first fairly
presented the substance of his federal habeas claim to state courts.”); 2 Randy
Hertz & James S. Liebman, Federal Habeas Corpus Practice & Procedure
§ 23.3[a], at 1280 (7th ed. 2016) (“As a general rule, a petitioner satisfies the
exhaustion requirement if she presents the federal claim to the appropriate state
courts in the manner required by state law . . . .”). Notably, it is not enough that a
prisoner has generally presented a Strickland claim of ineffective assistance to the
appropriate state court; the prisoner must have presented—and thereby
exhausted—the substance of the exact ground of ineffectiveness (i.e., deficient
attorney conduct) upon which the prisoner later seeks habeas relief in federal
court. See, e.g., Hawkins, 291 F.3d at 669 (“The fact that Hawkins asserted some
ineffective-assistance claims in state court, therefore, will not suffice to exhaust
this significantly different federal habeas claim challenging counsel’s failure to
conduct an adequate investigation or to advise Hawkins properly.” (emphasis
added)); Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999) (“[P]etitioner
has not properly raised before the state courts any of the bases upon which his
50
current ineffective assistance of counsel claims rely. Thus, petitioner has failed to
exhaust his ineffective assistance of counsel claims.”); see also Lanigan v.
Maloney, 853 F.2d 40, 45 (1st Cir. 1988) (pre-AEDPA case) (“Some claims of
constitutional violations—such as ineffective assistance of counsel or unfair
trial—encompass an almost limitless range of possible errors. A defendant raising
a Sixth Amendment violation who complained in state court about counsel’s
failure to object to certain testimony should not be deemed to have exhausted his
or her remedies if the federal court claim asserts ineffective assistance of counsel
based on a conflict of interest.”).
Here, it is clear that Mr. Ellis failed to present to the appropriate state court
(i.e., the CCA) the two distinct bases for alleged ineffective assistance (identified
supra) that the district court considered and incorporated into its ruling granting
habeas relief. Accordingly, these two ineffective-assistance claims were not
properly exhausted and should not have been considered by the district court in
granting habeas relief.
More problematic for Mr. Ellis, we conclude that these two claims are
procedurally defaulted for purposes of federal habeas review. See Hertz &
Liebman, supra, § 23.1, at 1270 (“The exhaustion doctrine is an ordering
device. . . . [It] never wholly forecloses, but only postpones, federal relief. . . . The
procedural default doctrine is potentially a far more decisive obstacle to federal
relief.”). In this regard, Mr. Ellis could not return—now or at the time the district
51
court considered these claims—to Colorado state court and get a merits review of
the claims because Colorado law procedurally bars them. See Colo. R. Crim. P.
35(C)(VII) (providing, with exceptions clearly not applicable here, that “[t]he
court shall deny any claim that could have been presented in . . . [a] postconviction
proceeding previously brought”); People v. Scheer, 518 P.2d 833, 835 (Colo.
1974) (“Where a post-conviction application is filed, it should contain all factual
and legal contentions of which the applicant knew at the time of filing, and failure
to do so will, unless special circumstances exist, ordinarily result in a second
application containing such grounds being summarily denied.”).6 Mr. Ellis does
not dispute that he could not return to Colorado court and present these claims.
Consequently, these two claims are procedurally defaulted. See O’Sullivan,
526 U.S. at 848 (“There is no dispute that this state court remedy—a petition for
leave to appeal to the Illinois Supreme Court—is no longer available to
Boerckel. . . . Thus, Boerckel’s failure to present three of his federal habeas claims
to the Illinois Supreme Court in a timely fashion has resulted in a procedural
6
Though we need not rely on this additional basis (and thus do not
definitively opine on its impact on this case), we observe that, were Mr. Ellis to return to
Colorado state court to file a postconviction motion raising the two identified ineffective-
assistance claims, his motion could well be found to be time-barred. See Colo. Rev. Stat.
§ 16-5-402(1) (providing for a three-year limitations period for felonies that are not
punishable by death or life imprisonment); see People v. Wiedemer, 852 P.2d 424, 428,
439 (Colo. 1993) (discussing section 16-5-402 and observing that “[t]he statute [section
16-5-402] imposes time limitations for commencing collateral attacks on judgments of
conviction” and discussing its operation as to felonies not punishable by death or life
imprisonment).
52
default of those claims.” (emphases added) (citation omitted)); Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991) (“This rule [allowing a federal habeas
court’s consideration of fairly presented federal claims] does not apply if the
petitioner failed to exhaust state remedies and the court to which the petitioner
would be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred. In such a case there is
a procedural default for purposes of federal habeas regardless of the decision of the
last state court to which the petitioner actually presented his claims.”), qualified by
Martinez v. Ryan, 566 U.S. 1, 15 (2012); Cole v. Trammell, 755 F.3d 1142, 1169
(10th Cir. 2014) (“Cole has never presented this argument to the Oklahoma state
courts and it is therefore unexhausted and subject to an anticipatory procedural
bar.”); Anderson v. Sirmons, 476 F.3d 1131, 1140 (10th Cir. 2007) (“‘Anticipatory
procedural bar’ occurs when the federal courts apply procedural bar to an
unexhausted claim that would be procedurally barred under state law if the
petitioner returned to state court to exhaust it.” (quoting Moore v. Schoeman, 288
F.3d 1231, 1233 n.3 (10th Cir. 2002))); see also Welch v. Milyard, 436 F. App’x
861, 869 (10th Cir. 2011) (unpublished) (“[W]ere Mr. Welch to attempt to raise
this claim in the [Colorado] state trial court at this juncture, it would be
dismissed. . . . Thus, Mr. Welch has procedurally defaulted his claim . . . .”
(citations omitted)); Gonzales v. Hartley, 396 F. App’x 506, 508 (10th Cir. 2010)
(unpublished) (“Because Colorado law now prevents him from presenting these
53
claims, see Colo. R. Crim. P. 35(c)(3)(VII), all of Mr. Gonzales’s current
objections are procedurally defaulted.”).7
Under settled habeas law, absent an adequate showing of cause, prejudice,
or a fundamental miscarriage of justice by Mr. Ellis, federal habeas review of the
claims is consequently precluded. See, e.g., Gray v. Netherland, 518 U.S. 152,
162 (1996) (“Because petitioner makes no attempt to demonstrate cause or
prejudice for his default in state habeas proceedings, his claim is not cognizable in
a federal suit for the writ.”); Gonzales v. McKune, 279 F.3d 922, 924 (10th Cir.
2002) (en banc) (holding that a habeas petitioner who “makes no effort to argue
that he asserted” a claim in state court, and who does not “argue that any
procedural default of this issue is excused by adequate cause and actual prejudice
7
In order to be enforceable, however, it is well established that the state
procedural bar must be—in the parlance of habeas law—independent and adequate. See,
e.g., Wood v. Milyard, 721 F.3d 1190, 1192 (10th Cir. 2013) (“To preclude our review,
however, the defaulted state rule must be both ‘independent’ of federal law and
‘adequate’ to support the judgment.”); English v. Cody, 146 F.3d 1257, 1259 (10th Cir.
1998) (noting that, absent certain exceptions, “[o]n habeas review, this court does not
address issues that have been defaulted in state court on an independent and adequate
state procedural ground”). Though the State carries the ultimate burden on the elements
of this defense, Mr. Ellis must put the matters “in issue.” Hooks v. Ward, 184 F.3d 1206,
1217 (10th Cir. 1999); accord Fairchild v. Workman, 579 F.3d 1134, 1143 (10th Cir.
2009). As noted, however, Mr. Ellis does not present any legal basis to justify or excuse
his failure to previously present the two identified grounds of ineffective assistance to the
CCA, let alone attack the independence or adequacy of Rule 35(c)(3)(VII) of the
Colorado Rules of Criminal Procedure. Therefore, though we do not appear to have
definitively decided this matter in a precedential decision, see LeBere v. Abbott, 732 F.3d
1224, 1233 n.13 (10th Cir. 2013), we may proceed on the assumption that the provisions
of Rule 35(c)(3)(VII) at issue here satisfy the independence and adequacy criteria.
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or a fundamental miscarriage of justice,” fails to exhaust—and thus procedurally
defaults—that claim because “[t]o grant . . . relief now, on the basis of an
argument that he failed (without explanation) to present to the relevant state court,
would be contrary to 28 U.S.C. § 2254(b)(1)” (emphasis added)); Medlock v.
Ward, 200 F.3d 1314, 1323 (10th Cir. 2000) (“Medlock’s claim is defaulted unless
he can show cause and prejudice or a fundamental miscarriage of justice.”);
Smallwood, 191 F.3d at 1269 (“Petitioner has failed to show cause for not raising
his ineffective assistance of counsel claims in his first application for
post-conviction relief. . . . In addition, because petitioner has failed to supplement
his habeas claim with a colorable showing of factual innocence, he cannot
demonstrate that our failure to review his ineffective assistance of counsel claims
will result in a fundamental miscarriage of justice. Therefore, we conclude that all
but one of Mr. Smallwood’s ineffective assistance of counsel claims are
procedurally barred and not subject to habeas review.” (citations omitted)); see
also Hertz & Liebman, supra, § 23.1 at 1271 (noting that “if none of the
exceptions to the procedural default rule apply, then federal court relief is
foreclosed”). As noted, Mr. Ellis makes no legal arguments to excuse his
procedural failing—i.e., his failure to adequately present the two ineffective-
assistance grounds at issue to the CCA—much less make an adequate showing of
cause, prejudice, or a fundamental miscarriage of justice. Accordingly, we agree
with the State that the district court erroneously considered Mr. Ellis’s additional
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ineffective-assistance claims—which were unexhausted and procedurally
defaulted—in granting habeas relief. And it would be improper for us to consider
them now. Hawkins, 291 F.3d at 668 (“Although the federal district court here,
‘out of an overabundance of caution,’ addressed this claim’s merit, we decline to
do so because it remains unexhausted and Oklahoma courts would now deem it
procedurally barred.” (quoting record)).8
III
In sum, we conclude that the CCA’s application of Strickland’s
performance prong to Mr. Stayton’s decisions not to consult (i.e., interview) and/or
call an expert forensic psychologist, Dr. Spiegle, Ms. Jefferson, and Ms. Geer was
not unreasonable; specifically, the CCA reasonably determined that Mr. Stayton’s
decisions did not constitute constitutionally deficient performance. Furthermore,
we conclude that Mr. Ellis has failed to show a reasonable probability that, but for
Mr. Stayton’s decision not to consult and/or call Dr. Long—which we assume
arguendo to be constitutional error—the result of the proceeding would have been
different. Thus, we REVERSE the district court’s judgment granting conditional
8
Mr. Ellis cites the Supreme Court’s decision in Jennings v. Stephens, 574
U.S. ----, 135 S. Ct. 793 (2015), in support of his argument that these late ineffective-
assistance claims may constitute alternative grounds for affirmance. Because neither
exhaustion nor procedural default vel non was at issue in Jennings, it is inapposite.
56
habeas relief and REMAND with instructions to enter judgment denying relief.9
9
Because we conclude that the district court erred in granting habeas relief,
the final issue raised on appeal is effectively moot: that is, whether the district court
abused its discretion in fashioning a conditional habeas remedy. We therefore do not
consider it.
57