Everett v. Long

Appellate Case: 21-1267 Document: 010110618709 Date Filed: 12/14/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 14, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
ELON EVERETT,

Petitioner - Appellant,

v. No. 21-1267
(D.C. No. 1:19-CV-03563-DDD)
RYAN LONG; THE ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,

Respondents - Appellees.
_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________

Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________

Petitioner Elon Everett, a Colorado state prisoner proceeding pro se,1 seeks a

certificate of appealability (“COA”) to appeal the district court’s dismissal of his

28 U.S.C. § 2254 habeas corpus petition. We are persuaded reasonable jurists would not

debate the correctness of the district court’s rulings on the issues presented, Miller-El v.

*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
“Although we liberally construe pro se filings, we do not assume the role of
advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (internal quotation
omitted).
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Cockrell, 537 U.S. 322, 338 (2003), and thus we deny Everett’s request for a COA and

dismiss this matter.

I

In 2006, Elon Everett was convicted by a jury in Colorado state court on two

counts of sexual assault. The state district court sentenced him to an indeterminate term

of ten years to life imprisonment and designated him as a sexually violent predator

(“SVP”). On November 9, 2006, Everett filed a notice of appeal in the Colorado Court of

Appeals.

On May 10, 2011, while the direct appeal was pending, Everett filed his first

habeas petition under 28 U.S.C. § 2254 in the U.S. District Court for the District of

Colorado, alleging a due process violation because his appeal was taking too long. On

August 31, 2011, the federal district court denied habeas relief after analyzing the

procedural history in state court and concluding that Everett’s rights had not been

violated. Everett did not appeal.

On November 10, 2011, the Colorado Court of Appeals affirmed Everett’s

judgment and sentence for sexual assault of a physically helpless victim; vacated the

judgment and sentence for sexual assault on a victim incapable of appraising the nature of

her conduct; vacated the SVP designation; and remanded the case with instructions to the

state district court to make further findings on whether Everett was an SVP. On October

29, 2012, the Colorado Supreme Court denied certiorari review.

In October 2012, before certiorari was denied on direct appeal, Everett filed his

first motion for postconviction relief pursuant to Rule 35(b) of the Colorado Rules of

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Criminal Procedure. On August 21, 2013, the state district court denied the Rule 35(b)

motion and re-designated Everett as an SVP. Everett appealed, and on June 18, 2014,

while that appeal was pending, he filed a second postconviction motion pursuant to Rule

35(c) of the Colorado Rules of Criminal Procedure. On September 10, 2014, Everett had

his Rule 35(b) appeal dismissed so that the state district court would have jurisdiction to

consider his Rule 35(c) motion. The state district court then denied the Rule 35(c)

motion, and the Colorado Court of Appeals affirmed. On September 30, 2019, the

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

On December 16, 2019, Everett filed his second 28 U.S.C. § 2254 habeas petition,

which is the case underlying this application for a COA. This time, Everett challenged

the validity of his state court conviction and asserted the following claims for relief:

1. Whether the state district court erred in admitting the victim’s rape
kit (with three subparts);

2. Whether the two counts of sexual assault must merge because they
were based on one sexual act;

3. Whether the state district court erred in denying Everett’s challenge
for cause to Juror D.G. because she said the charges against Everett
were “some evidence”;

4. Whether the state district court violated Everett’s right to a public
trial by closing the preliminary hearing to the public during the
victim’s testimony;

5. Whether the evidence was insufficient to support the conviction for
sexual assault of a physically helpless victim;

6. Whether a new trial was required because there was no transcript of
the hearing held on Everett’s request for substitute counsel, and the
state district court erred by denying Everett’s request for substitute
counsel;

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7. Whether the state district court erred by denying Everett’s motion
for a mistrial after a witness testified that Everett had been
incarcerated;

8. Whether the state district court erred by overruling defense counsel’s
objections to statements in the prosecutor’s rebuttal closing
argument;

9. Whether the Colorado Sex Offender Lifetime Supervision Act of
1998 is unconstitutional;

10. Whether the state district court erred by denying Everett’s motion
for an abbreviated proportionality review of his sentence;

11. Whether the state district court erred by denying Everett’s motion
for an abbreviated proportionality review of his sentence (same as
Claim 10);

12. Whether the SVP designation must be stricken from the mittimus
because the state district court never designated Everett an SVP;

13. Ineffective assistance of counsel (with ten subparts);

14. Whether the state district court erred by denying Everett’s motion
alleging ineffective assistance of trial counsel and appellate counsel;

15. Whether the state district court was without statutory authority and
thus without jurisdiction to designate Everett an SVP;

16. Whether in the absence of any evidence the defense spoke with a
witness, the record supports a postconviction court’s denial of an
ineffective assistance of trial counsel claim because it is
“inconceivable” the defense did not speak to a witness and would
not have made such a decision not to call a witness without having a
reason;

17. Whether the Colorado Court of Appeals erred in refusing to address
the state district court’s authority to designate SVP status.

ROA, at 382–84.

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After reviewing the respondents’ pre-answer, the district court dismissed some of

the claims as procedurally defaulted or otherwise procedurally barred.2 The respondents

then answered, and Everett replied. The district court denied all pending habeas claims

and dismissed his case with prejudice. The district court also denied a COA in the same

order. A separate judgment was entered.

Everett filed a timely appeal and now seeks a COA from this court, requesting that

his convictions be vacated and the case remanded for a new trial.

II

“A state prisoner whose petition for a writ of habeas corpus is denied by a federal

district court does not enjoy an absolute right to appeal.” Buck v. Davis, 137 S. Ct. 759,

773 (2017). “Federal law requires that he first obtain a COA from a circuit justice or

judge.” Id. (citing 28 U.S.C. § 2253(c)(1)). To obtain a COA, a state prisoner must make

“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

This requires the applicant to “sho[w] that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were ‘adequate to deserve encouragement to proceed further.’”

Miller-El, 537 U.S. at 336 (alteration in original) (quoting Slack v. McDaniel, 529 U.S.

473, 484 (2000)). In other words, the applicant must show that the district court’s

resolution of the claims was “debatable or wrong.” Slack, 529 U.S. at 484.

2
The district court determined that Claims 1(a), 1(c), 7, 12, 13(b)–(g), 13(i)–(j),
and 17 were procedurally barred; Claim 11 was duplicative of Claim 10; Claim 15 failed
to present a federal question; and Claim 16 was part of Claim 14. ROA, at 393.
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To obtain a COA, the applicant must make “a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). The last state court to evaluate the merits

of Everett’s case was the Colorado Court of Appeals. Thus, federal habeas relief is only

available if we conclude that 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 resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d).

Further, when a district court dismisses a § 2254 claim on procedural grounds, an

applicant is entitled to a COA only if he shows that reasonable jurists would find it

debatable whether he had stated a valid constitutional claim and whether the district

court’s procedural ruling was correct. Slack, 529 U.S at 484–85.

III

In his application for COA, Everett seeks to challenge (1) the district court’s ruling

that some claims are procedurally defaulted or otherwise procedurally barred and (2) the

district court’s denial of the remaining claims.

A. Procedurally Defaulted or Procedurally Barred Claims

Everett argues that he is entitled to a COA because reasonable jurists would find it

debatable whether he had stated a valid constitutional claim and whether the district

court’s procedural rulings were correct for the following claims: (1) the admissibility of

the victim’s rape kit; (2) the denial of the motion for a mistrial; (3) the SVP designation;

and (4) ineffective assistance of counsel.

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In order to obtain federal habeas corpus review, a state prisoner must have

exhausted the remedies available in state court. See 28 U.S.C. § 2254(b)–(c); Baldwin v.

Reese, 541 U.S. 27, 29 (2004); Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997).

To do so, the applicant must have “fairly present[ed]” his claim “in each appropriate state

court . . . thereby alerting that court to the federal nature of the claim.” Baldwin, 541

U.S. at 29; see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners

must give the state courts one full opportunity to resolve any constitutional issues by

invoking one complete round of the State’s established appellate review process.”).

Additionally, under the “procedural default” doctrine, a claim which an applicant

presented in state court cannot be reviewed on the merits in a federal habeas action if it

was precluded from review in the state court under an “independent and adequate state

ground.” Coleman v. Thompson, 501 U.S. 722, 731–32, 735 n.1 (1991). “A state

procedural ground is independent if it relies on state law, rather than federal law, as the

basis for the decision.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). A state

procedural ground is adequate if it “was firmly established and regularly followed.”

Beard v. Kindler, 558 U.S. 53, 60 (2009) (internal quotation marks omitted).

1. Admissibility of Victim’s Rape Kit

Everett claims that the state district court erred in admitting the victim’s rape kit,

specifically that (1) the kit’s evidence property report and envelope, which were used to

establish the kit’s chain of custody, did not satisfy the foundational requirements of Rule

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803(6) of the Colorado Rules of Evidence and (2) the state did not establish a proper

chain of custody for the rape kit.3

The Colorado Court of Appeals addressed and rejected each contention. The

Court of Appeals determined that the state district court did not abuse its discretion in

admitting the victim’s rape kit because (1) the kit’s evidence property report and

envelope were admissible as a police record and an officer’s testimony established each

requirement to admit the property report and envelope under Rule 803(6), and (2) the

Government’s evidence accounting for the kit’s whereabouts at all times established its

chain of custody.

The district court determined that Everett failed to present these issues as a federal

constitutional claim to the state court and therefore failed to exhaust state remedies for

these claims. The district court then concluded that the claims were subject to

anticipatory procedural default and could not be considered because Everett failed to

demonstrate cause and prejudice or a fundamental miscarriage of justice.

We hold that reasonable jurists would not debate the district court’s conclusion.

Federal courts may not dismiss a claim on the ground that it has not been exhausted if the

applicant no longer has an adequate and effective state remedy available to exhaust. See

Castille v. Peoples, 489 U.S. 346, 351 (1989). Instead, such a claim is subject to

anticipatory procedural default—even if it has not actually been raised and rejected by

3
District court’s Claim 1, ROA, at 382; Everett’s Claims 7(1)–7(2), Application
for Certificate of Appealability (“Application”), at 15. Everett also claims that the
writings on these documents violated his Confrontation Clause rights, which the district
court reviewed on the merits and we will address in Section B.
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state courts on a procedural ground—if it is clear that the claim would now be so rejected

because of an independent and adequate state procedural rule. See Coleman, 501 U.S. at

735 n.1. Federal courts “do not review issues that have been defaulted in state court on

an independent and adequate state procedural ground, unless the default is excused

through a showing of cause and actual prejudice or a fundamental miscarriage of justice.”

Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998).

As the district court noted, these claims were subject to anticipatory procedural

default because Everett no longer has an adequate and effective remedy available to him

with respect to those claims. Specifically, Rule 35(c)(3)(VII) of the Colorado Rules of

Criminal Procedure prevents Everett from returning to state court to raise these claims as

federal constitutional claims in a new postconviction motion. Rule 35(c)(3)(VII)

provides that with limited exceptions not applicable to Everett, the state court must

dismiss any claim that could have been presented in a prior appeal or postconviction

proceeding. Rule 35(c)(3)(VII) is independent because the rule relies on state rather than

federal law, and the rule is adequate because Colorado courts apply it evenhandedly. See,

e.g., People v. Vondra, 240 P.3d 493, 494–95 (Colo. App. 2010) (applying Rule

35(c)(3)(VII) to reject claims that were or could have been raised in prior proceeding);

see also LeBere v. Abbott, 732 F.3d 1224, 1233 n.13 (10th Cir. 2013) (noting that several

unpublished cases have indicated Rule 35(c)(3)(VII) is an independent and adequate state

ground precluding federal habeas review). Everett also fails to demonstrate cause and

prejudice or a fundamental miscarriage of justice. Reasonable jurists therefore would not

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debate the district court’s conclusion that Everett’s claim challenging the admissibility of

the rape kit must be dismissed.

2. Denial of Motion for Mistrial

Everett argues that the state district court erred by denying his motion for a

mistrial after a witness testified that Everett had been incarcerated.4 On direct appeal,

Everett raised this claim as a state law claim, and the Colorado Court of Appeals

concluded that the state district court did not abuse its discretion by denying Everett’s

motion for a mistrial.

The district court determined that because Everett failed to present this claim to

the Colorado Court of Appeals as a federal constitutional claim, Everett failed to exhaust

state remedies. The claim was subject to anticipatory procedural default because Everett

no longer has an adequate and effective remedy available to him. See Colo. R. Crim. P.

35(c)(3)(VII). As explained above, Colorado Rule of Criminal Procedure 35(c)(3)(VII)

is independent and adequate and prevents Everett from returning to state court to raise the

claim as a federal constitutional claim in a new postconviction motion. Everett also fails

to demonstrate cause and prejudice or a fundamental miscarriage of justice. Reasonable

jurists therefore would not debate the district court’s conclusion that the mistrial claim

must be dismissed.

4
District court’s Claim 7, ROA, at 383; Everett’s Claim 7(3), Application, at 15.
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3. SVP Designation

Everett raises three claims regarding the SVP designation: (1) the SVP designation

must be stricken from the mittimus because the state district court never designated

Everett an SVP;5 (2) the state district court lacked statutory authority and thus lacked

jurisdiction to designate Everett an SVP;6 and (3) the Colorado Court of Appeals erred in

refusing to address the state district court’s authority to designate SVP status.7

On direct appeal, Everett argued that the “sexually violent predator” annotation on

the mittimus should be stricken because the sentencing court did not find that Everett was

a “sexually violent predator” under Colo. Rev. Stat. § 18-3-414.5 (2004). The Colorado

Court of Appeals rejected his suggestion that the court did not designate him an SVP but

agreed that the court could not yet do so because his risk of reoffending had not yet been

assessed. The Court of Appeals, relying on state law, vacated the SVP designation and

remanded the case to the state district court to make the requisite specific findings of fact

based on a risk assessment screening instrument as to whether Everett qualified for SVP

designation. In postconviction proceedings, Everett initially appealed the SVP

designation that the state district court entered on August 21, 2013 in a Rule 35(b)

motion, but then he withdrew his appeal on that issue. He again raised the SVP issue in

5
District court’s Claim 12, ROA, at 383; Everett’s Claim 7(4)(A), Application,
at 15.
6
District court’s Claim 15, ROA, at 383; Everett’s Claim 7(4)(B), Application,
at 15.
7
District court’s Claim 17, ROA, at 384; Everett’s Claim 7(4)(C), Application,
at 15.
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his second postconviction motion under Rule 35(c), but the Court of Appeals declined to

consider Everett’s arguments regarding the state district court’s authority to designate

him an SVP because his appeal was untimely on that issue.

Upon review of these state court records, the district court determined that Everett

failed to present these claims to the Colorado Court of Appeals as federal constitutional

claims. Everett does not allege any constitutional basis for his argument that the state

district court lacked statutory authority to designate him an SVP. Further, the claims are

procedurally defaulted because the claims were or would be denied on an independent

and adequate state law ground, and Everett no longer has a remedy available to him. See

LeBere, 732 F.3d at 1230 (explaining that Colo. R. Crim. P. 35(c)(3)(VI) “prohibits not

only claims previously decided on the merits, but also claims where review ‘would be

nothing more than a second appeal addressing the same issues on some recently contrived

constitutional theory’”). Everett also fails to demonstrate cause and prejudice or a

fundamental miscarriage of justice. Reasonable jurists therefore would not debate the

district court’s conclusion that the SVP claims must be dismissed.

4. Ineffective Assistance of Counsel

Everett raises the following claims regarding ineffective assistance of counsel:

(1) failure to consult with him during pretrial and trial preparation; (2) failure to

investigate his background regarding alcohol/drug abuse and mental-health issues;

(3) failure to prepare and present an adequate defense and prepare and present the

affirmative defense of consent; (4) failure to challenge the state district court’s abuse of

discretion in permitting the introduction of prejudicial evidence; (5) failure to challenge

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the lack of sufficient evidence to support the prosecution’s charges against him;

(6) failure to challenge the prosecution’s failure and/or refusal to elect between counts

one and two; (7) failure to challenge the court’s error in imposing an illegal sentence; and

(8) failure to initiate plea discussions with the prosecution as an alternative to proceeding

to trial.8

The district court noted that Everett had not raised these claims in his state court

proceedings and that any attempt to present these unexhausted claims to the state courts

would be rejected under Colorado Rule of Criminal Procedure 35(c)(3)(VII). Because

Rule 35(c)(3)(VII) is an independent and adequate state ground, the claims are defaulted

under the doctrine of anticipatory default. Everett also fails to demonstrate cause and

prejudice or a fundamental miscarriage of justice. After reviewing the record on appeal,

we conclude that reasonable jurists would not disagree with the district court’s

conclusions.

B. Denial of Remaining Habeas Claims

Everett argues that he is entitled to a COA because reasonable jurists would debate

the district court’s denial of the following remaining habeas claims: (1) violation of the

Confrontation Clause relating to the admission of the victim’s rape kit; (2) right to a

public trial; (3) insufficient evidence to support his conviction; (4) the constitutionality of

8
District court’s Claim 13, ROA, at 383; Everett’s Claims 5(5)–5(6), 7(5)–7(12),
Application, at 11, 15–16. Everett’s remaining two ineffective assistance of counsel
claims that were not procedurally barred and that the district court reviewed on the merits
are discussed in Section B.
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the Colorado Sex Offender Lifetime Supervision Act of 1998; (5) ineffective assistance

of trial counsel; and (6) ineffective assistance of appellate counsel.

Pursuant to 28 U.S.C. § 2254(d), a writ of habeas corpus may not be issued with

respect to any claim that was adjudicated on the merits in state court unless the state court

adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the Supreme Court of the

United States, § 2254(d)(1), or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the state

court proceeding, § 2254(d)(2). Everett bears the burden of proof under this statute. See

Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

1. Admission of the Victim’s Rape Kit – Confrontation Clause

Everett claims that the state district court erred in admitting the victim’s rape kit,

specifically that the writings on the rape kit’s evidence property report and envelope

violated his Confrontation Clause rights.9 Everett disagrees with the Colorado Court of

Appeals’ characterization of these documents as business records and argues that the rape

kit was testimonial evidence because it was “created specifically for use at trial, and to

prove the fact that this evidence is how [he] and the alleged victim had sexual contact

with each other.” Application, at 18.

As previously stated, the Colorado Court of Appeals determined that the state

district court did not abuse its discretion in admitting the rape kit’s evidence property

9
District court’s Claim 1, ROA, at 382; Everett’s Claim 1, Application, at 3–4,
17–20.
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report and envelope under Rule 803(6) of the Colorado Rules of Evidence. See supra at

8. The Court of Appeals held that Everett’s confrontation rights were not violated

because the rape kit’s evidence property report and envelope did not constitute

testimonial evidence and were properly admitted as business records under Rule 803(6).

In reaching this decision, the Court of Appeals stated that a police officer’s testimony at

trial established that such documents were created regardless of whether the case to

which the evidence related was going to trial.

The district court determined that the Court of Appeals’ decision that these

documents were in fact business records was not based on an unreasonable determination

of the facts in light of the evidence presented in the state court proceedings. Pursuant to

§ 2254(e)(1), the district court presumed that the state court’s factual determinations are

correct, and Everett bears the burden of rebutting that presumption by clear and

convincing evidence. Everett’s argument that the evidence property report and envelope

were testimonial evidence because they were created for use at trial does not overcome

the presumption of correctness of the police officer’s testimony at trial, which established

that a crime scene investigation technician created the documents following the police

department’s normal course of business in processing and storing evidence from a crime

scene. Further, the district court concluded that the Court of Appeals’ legal

determination that the evidence property report and envelope were not testimonial is not

contrary to or an unreasonable application of a clearly established rule of federal law as

determined by the Supreme Court. See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S.

305, 324 (2009) (“Business and public records are generally admissible absent

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confrontation not because they qualify under an exception to the hearsay rules, but

because—having been created for the administration of an entity’s affairs and not for the

purpose of proving some fact at trial—they are not testimonial.”); Crawford v.

Washington 541 U.S. 36, 68–69 (2004) (the Confrontation Clause bars the introduction

into evidence of out-of-court statements that are testimonial in nature). After reviewing

the record on appeal, we conclude that reasonable jurists would not disagree with the

district court’s conclusions.

2. Right to a Public Trial – Preliminary Hearing

Everett claims that the state district court violated his right to a public trial by

closing the preliminary hearing to the public during the victim’s testimony.10 He argues

that the alleged error was to be reviewed under the “structural error standard where

defendant need not show prejudice because the error effected [sic] the entire framework

of the proceedings.” Application, at 4. He further argues that when a trial court

“erroneously deprives a defendant of this right, the error is structural and requires

automatic reversal.” Id. at 5. In support, he cites People v. Lujan, 484 P.3d 718 (Colo.

App. 2018), rev’d, 461 P.3d 494 (Colo. 2020), a Colorado Court of Appeals case

discussing a criminal defendant’s right to a public trial that was reversed by the Colorado

Supreme Court.

During Everett’s pretrial proceedings, the prosecutor asked the state district court

to close the preliminary hearing to the public for the alleged victim’s testimony pursuant

10
District court’s Claim 4, ROA, at 382; Everett’s Claim 2, Application, at 4–6.
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to C.R.S. § 16-5-301(2) (addressing state court’s ability to close preliminary hearings in

sexual assault cases). Defense counsel objected, arguing that the jury should decide

whether the victim was in fact a sexual assault victim and that Everett was in jail and did

not have family or friends there. The state district court analyzed the issue under C.R.S.

§ 16-5-301(2) and determined that the victim’s testimony, which included the victim’s

retrieval of “the condom from inside her vagina,” concerned a matter of extreme privacy.

ROA, at 551–52. As a result, the state district court decided to close the preliminary

hearing to the public during the victim’s testimony to prevent the court process from

compounding the victim’s emotional trauma.

On direct appeal, Everett presented a different argument and asserted that the state

district court failed to comply with the requirements of Waller v. Georgia, 467 U.S. 39

(1984). In particular, Everett argued that the court (1) did not make sufficient findings

showing that the interest asserted was an “overriding interest” under Waller or (2) did not

consider reasonable alternatives to closing the hearing to the public for all of victim’s

testimony. The Colorado Court of Appeals found that the applicable standard of review

was plain error because defense counsel did not object to the closure for the reasons

Everett asserted on appeal. See People v. DeWitt, 275 P.3d 728 (Colo. App. 2011)

(reviewing unpreserved claim of constitutional error for plain error). The Court of

Appeals further concluded that assuming that the state district court erred, Everett did not

assert and the record did not suggest that any such error “so undermine[d] the

fundamental fairness of [his later] trial as to cast serious doubt on the reliability of the

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judgment of conviction.” ROA, at 552–53 (discussing relevant case law cited by

Colorado Court of Appeals).

The district court determined that Everett failed to establish that the Court of

Appeals’ decision was contrary to, or an unreasonable application of, clearly established

Supreme Court precedent because he failed to identify any materially distinguishable

Supreme Court decision that would have compelled a different result. The district court

also determined that the Court of Appeals’ decision was not based on an unreasonable

determination of the facts in light of the evidence presented in the state court proceeding.

After reviewing the record on appeal, we conclude that reasonable jurists would not

disagree with the district court’s conclusions.

3. Insufficient Evidence to Support Conviction

Everett claims that the evidence was insufficient to support the conviction for

sexual assault of a physically helpless victim.11 He argues that the jury drew the

conclusion based on “an unreasonable determination that the alleged victim was not

physically helpless enough to be not kidnapped, but was physically helpless enough to be

sexually assaulted without any additional evidence to support that conclusion.”

Application, at 6.

The Court of Appeals rejected Everett’s sufficiency-of-the-evidence claim and

determined that based on the evidence, the jury could reasonably infer that (1) the victim

was intoxicated to the point of physical helplessness on the night of the assault and

11
District court’s Claim 5, ROA, at 382; Everett’s Claim 3, Application, at 6.
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(2) Everett knew that she was physically helpless. Further, the victim testified that she

had not consented to have sexual relations with Everett that night.

The district court analyzed the claim under Jackson v. Virginia, 443 U.S. 307, 319

(1979), in which the Supreme Court held that “the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

Moreover, the district court noted that a federal court on habeas review “may not

overturn a state court decision rejecting a sufficiency of the evidence challenge simply

because the federal court disagrees with the state court” and “instead may do so only if

the state court decision was objectively unreasonable.” Coleman v. Johnson, 566 U.S.

650, 651 (2012) (per curiam) (internal quotation marks omitted). The district court then

concluded that (1) Everett did not identify any materially indistinguishable Supreme

Court decision requiring a different result and (2) Everett’s conclusory assertions were

insufficient to rebut the § 2254(d)(2) presumption and demonstrate that the Court of

Appeals’ resolution of this claim—given the evidence presented at trial, considered by

the jury, and weighed in favor of the prosecution—was objectively unreasonable. After

reviewing the record on appeal, we conclude that reasonable jurists would not disagree

with the district court’s conclusions.

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4. Constitutionality of the Colorado Sex Offender Lifetime Supervision Act
of 1998

Everett claims that the Colorado Sex Offender Lifetime Supervision Act of 1998

(“SOLSA”) is unconstitutional.12 He asserts that SOLSA is “the epitome of cruel and

unusual punishment” and violates Equal Protection under the Eighth and Fourteenth

Amendments. Application, at 8. He argues that “jurists of reason could differ about

Colorado’s legislative intent (or agree) that physically helpless is defined as someone

who is paralyzed, elderly, severe cognitive disabilities, infantile, or someone who suffers

from a form of mental retardation” and “[n]ot someone who goes out to a bar, gets

voluntarily intoxicated, goes home with someone willingly and regrets it the next

morning, then after almost 2 years he gets charged with a sex-offense, because she

possibly committed adultery or the person was not attractive as first thought.” Id. at 9.

He further contends that SOLSA does not have the necessary enacting clause.

On direct appeal, the Court of Appeals rejected Everett’s constitutional arguments

against SOLSA for reasons already addressed and rejected by divisions of the court in

People v. Firth, 205 P.3d 445 (Colo. App. 2008); People v. Lehmkuhl, 117 P.3d 98 (Colo.

App. 2004); People v. Dash, 104 P.3d 286 (Colo. App. 2004); People v. Oglethorpe, 87

P.3d 129 (Colo. App. 2003); and People v. Strean, 74 P.3d 387 (Colo. App. 2002).

The district court determined that (1) Everett failed to demonstrate that the Court

of Appeals’ rejection of his constitutional claims challenging SOLSA was either contrary

12
District court’s Claim 9, ROA, at 383; Everett’s Claim 4, 4(a), Application, at
7–10, 20–24.
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to or an unreasonable application of clearly established federal law and (2) the Court of

Appeals’ ruling, based on state court cases, was not “so lacking in justification that there

was an error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement.” ROA, at 571 (citing Harrington v. Richter, 562 U.S. 86,

103 (2011)). In his application for COA, Everett again fails to cite any contradictory

governing law set forth in Supreme Court cases or any materially indistinguishable

Supreme Court decision that would compel a different result. As the district court noted,

“courts uniformly have rejected constitutional challenges to SOLSA as a general matter,

as well as the parole process it prescribes.” Id. (citing Colorado and Tenth Circuit

decisions rejecting similar arguments). After reviewing the record on appeal, we

conclude that reasonable jurists would not disagree with the district court’s conclusions.

5. Ineffective Assistance of Trial Counsel

Everett claims that his Sixth Amendment right to effective assistance of trial

counsel was violated due to “the cumulative effect of the deficient representation.”

Application, at 10. In particular, Everett claims that his trial counsel was ineffective for

the following reasons: (1) failure to call Everett’s father, “the only sole eyewitness to

when the sex was happening at his house,” and (2) failure to seek a jury instruction on

alternative theories.13 Id. at 11. Everett argues that when the trial counsel’s alleged

errors are taken together, they “indicate a general lack of skill and preparation” and “may

deprive [him] of a fair trial.” Id. at 12.

13
District court’s Claims 13–14, ROA, at 383; Everett’s Claims 5(1)–5(4),
Application, at 10–12.
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The Colorado Court of Appeals considered this issue under the standard set forth

in Strickland v. Washington, 466 U.S. 668, 687 (1984) (crafting a two-part test requiring

a defendant show “that counsel’s performance was deficient” and “that the deficient

performance prejudiced the defense”). Based on the record of the state court

proceedings, the Court of Appeals determined that (1) the state district court did not err in

concluding that trial counsel investigated Everett’s father and made an informed and

reasonable decision not to call him as a witness at trial and (2) assuming that counsel was

deficient in failing to request a jury instruction based on People v. Lowe, 660 P.2d 1261,

1271 (Colo. 1983) (holding that jury should be informed that defendant was being

charged with one crime under two alternative theories and that verdict should indicate

which theory had been proved by the evidence), the lack of a Lowe instruction was not

prejudicial to Everett.

As to the witness issue, the district court determined that Everett failed to

demonstrate that the Court of Appeals’ decision was based on an unreasonable

determination of the facts in light of the evidence presented under § 2254(d)(2). As to

the jury instruction issue, Everett’s conclusory allegations did not persuade the district

court that the Court of Appeals was unreasonable in concluding that there was no

prejudice based on the alleged instructional error. The district court also determined that

Everett failed to rebut the Court of Appeals’ factual determinations with clear and

convincing evidence or identify any materially indistinguishable Supreme Court decision

that would compel a different result. After reviewing the record on appeal, we conclude

that reasonable jurists would not disagree with the district court’s conclusions.

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6. Ineffective Assistance of Appellate Counsel

Everett claims that his appellate counsel was ineffective for failing to raise the

instructional error (failure to seek a jury instruction on alternative theories) on direct

appeal.14 He contends that appellate counsel should have sought a new trial based on the

holding in Lowe because the jury was not instructed that only one offense was charged

and therefore “the functions of the jury were usurped.” Application, at 13.

The Colorado Court of Appeals rejected Everett’s claim and determined that the

remedy provided by the Colorado Supreme Court in Lowe was precisely the remedy

Everett received on direct appeal—merger of the two convictions. See 660 P.2d at 1272

(vacating defendant’s two convictions and remanding to the district court to enter a

conviction on a single offense). The Court of Appeals agreed with the state district court

that Everett had not established a reasonable probability that but for appellate counsel’s

failure to raise that instructional error, the result of the proceeding would have been

different.

The district court again applied Strickland as clearly established federal law

applicable to an ineffective assistance of appellate counsel. See Smith v. Robbins, 528

U.S. 259, 285 (2000) (holding that “the proper standard for evaluating [a] claim that

appellate counsel was ineffective . . . is that enunciated in Strickland”). In the context of

an ineffective assistance of appellate counsel claim, the prejudice prong of Strickland

requires Everett to “show reasonable probability that, but for his counsel’s unreasonable

14
District court’s Claim 13, ROA, at 4; Everett’s Claim 6, Application, at 13–14.
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failure to” raise a particular nonfrivolous issue, “he would have prevailed on his appeal.”

Id. The district court concluded that the Court of Appeals identified the correct legal

standard by applying Strickland, and Everett did not cite any contradictory governing law

regarding ineffective assistance of counsel set forth in Supreme Court cases or any

materially indistinguishable Supreme Court decision that would compel a different result.

The district court also concluded that Everett failed to demonstrate that the error was

prejudicial and a constitutional challenge to the jury instructions on direct appeal would

have succeeded, as his two convictions were merged under the remedy established in

Lowe. We hold that the district court’s conclusion is not debatable and does not deserve

further encouragement. See Slack, 529 U.S. at 484.

III

Everett’s motion for a certificate of appealability is DENIED, and this matter is

DISMISSED. In addition, both pending motions for leave to proceed in forma pauperis

and for appointment of counsel are DENIED.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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