Alexander v. Williams

Full title: James Henry ALEXANDER, Petitioner, v. Dean WILLIAMS, Executive Director of…

Court: United States District Court, D. Colorado

Date published: Nov 17, 2022

641 F. Supp. 3d 1082 (D. Colo. 2022)

Opinion

Civil Action No. 21-cv-1353-WJM

2022-11-17

James Henry ALEXANDER, Petitioner, v. Dean WILLIAMS, Executive Director of the Colorado Department of Corrections, Virgil Ensley, Warden of the Bent County Correctional Facility, and Philip J. Weiser, Attorney General for the State of Colorado, Respondents.

James Henry Alexander, Las Animas, CO, Pro Se. Patrick Aloysius Withers, Colorado Department of Law, Denver, CO, Ryan Alan Crane, Colorado Attorney General's Office, Denver, CO, for Respondents Dean Williams, Philip J. Weiser.

William J. Martinez

James Henry Alexander, Las Animas, CO, Pro Se.

Patrick Aloysius Withers, Colorado Department of Law, Denver, CO, Ryan Alan Crane, Colorado Attorney General's Office, Denver, CO, for Respondents Dean Williams, Philip J. Weiser.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

William J. Martinez, United States District Judge

A state court jury found Petitioner James Henry Alexander ("Alexander") guilty of first degree assault, possession of a weapon by a previous offender, ownership of a dangerous dog, and four habitual criminal counts. The state case was the product of a dispute that arose after a woman tried to drive through an alley behind Alexander's tattoo parlor—and escalated to the point where Alexander's girlfriend released Alexander's dog to attack the woman. The trial court adjudicated

Alexander a habitual criminal and imposed a 64-year sentence on the assault conviction. Alexander brings this habeas corpus action under 28 U.S.C. § 2254 to collaterally challenge the conviction and sentence. His habeas application presents five claims for relief. The parties have briefed the merits of each claim. For the reasons described below, Alexander's Application for Writ of Habeas Corpus is granted in part and denied in part, and Alexander shall be released from custody in 120 days unless he is retried on the charges brought against him in Case No. 08CR1660 in the Adams County District Court of the State of Colorado.¹

1 The Adams County District Court is a unit of the 17^th Judicial District, State of Colorado.

I. STANDARDS OF REVIEW

For the purposes of habeas review, federal courts are limited to determining if a conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Federal courts do "not review the judgment, but the lawfulness of [Alexander's] custody simpliciter." Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), relief is further limited to instances where the state court adjudication of a habeas petitioner's claims on the merits (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).

Under the § 2254(d)(1), a federal court will not grant the writ unless "the state court arrived at a conclusion 'opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.'" Boykin v. Webb, 541 F.3d 638, 642 (6th Cir. 2008) (quoting Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Under the "unreasonable applications" clause, a habeas court may grant the writ if the state court identified the correct legal principle from the Supreme Court's decisions but unreasonably applied that principle to the petitioner's case. Id.

Under § 2254(d)(2), a federal court "will not conclude a state court's factual findings are unreasonable 'merely because [it] would have reached a different conclusion in the first instance.'" Smith v. Duckworth, 824 F.3d 1233, 1241 (10th Cir. 2016) (quoting Brumfield v. Cain, 576 U.S. 305, 313-14, 135 S.Ct. 2269, 192 L.Ed.2d 356 (2015)). Instead, we "defer to the state court's factual determinations so long as 'reasonable minds reviewing the record might disagree about the finding in question.'" Id. (quoting Brumfield, 576 U.S. at 314, 135 S.Ct. 2269). In line with this deference, the federal court is to presume that a state court's factual findings are correct, "and the petitioner bears the burden of rebutting that presumption by 'clear and convincing evidence.'" Id. (quoting 28 U.S.C. § 2254(e)(1)). However, "deference does not imply abandonment or abdication of judicial review,' and 'does not by definition preclude relief." Brumfield, 576 U.S. at 314, 135 S.Ct. 2269 (quoting Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ("Miller-El I")).

Because Alexander is pro se, the Court liberally construes his filings, but

will not act as an advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).

II. BACKGROUND

In addressing Alexander's direct appeal, the Colorado Court of Appeals ("CCA") summarized the evidence presented at trial as follows:

The victim, LF, was driving through an alley behind a tattoo shop owned by Alexander. LF's husband and children were in the car with her. LF was forced to stop her car because a parked car was blocking the alley. At that time, Alexander, his girlfriend, Theresa Apodaca-Zambori,² and two other men were standing in the alley. LF's husband, Christopher Chavez, rolled down his window and asked Alexander and the others to move their car. Alexander responded that the alley was private property and told Chavez, "Tell your bitch to back up the way she came."

Alexander approached the front of LF's car. The two other men stood on either side of the car. Alexander told the two other men to get in front of the car and not let LF's family leave. He then went into the tattoo shop with Apodaca-Zambori. As the two entered the shop, Apodaca-Zambori yelled something at Alexander.

A few moments later, the two returned—Alexander exiting the building first and Apodaca-Zambori shortly thereafter. Alexander approached the car with some papers, stating that they proved that LF's family was on his private property. As Apodaca-Zambori exited the building, she was holding Alexander's pit bull dog, Nala, by its collar a short distance from LF's car. LF then heard Apodaca-Zambori say, "Get her, Nala," at which point Nala attacked LF, biting her leg.

Eventually, LF and Apodaca-Zambori removed Nala from LF's leg. As the dog was pulled away from LF's leg, Alexander told LF, "Bitch, you were lucky it was my dog and not my strap."³ Alexander and Apodaca-Zambori then got into separate cars and drove away. Police arrested them shortly thereafter. Subsequent to Alexander's arrest, the police found a handgun in his car.

2 Based on her involvement in this incident, Apodaca-Zambori was convicted of first degree assault and reckless endangerment and received a five-year sentence. Another division of [the CCA] court recently affirmed the conviction on direct appeal. People v. Apodaca-Zambori, 2013 COA 29, 410 P.3d 463.

3 LF testified that she understood this to mean that she was lucky Alexander had not used his gun.

(ECF No. 22-1 at 2-4.)

In June 2008, the People of the State of Colorado ("State") charged Alexander with first degree assault and unlawful ownership of a dangerous dog. (Id. at 2.) Shortly thereafter, the prosecution added one count of possession of a weapon by a previous offender (POWPO). (Id.) In February 2009, the State added four habitual criminal counts.⁴ (Id.; ECF No. 1-1 at 8.) A July 2009 trial on the severed POWPO charge resulted in a hung jury, but a November 2009 retrial led to a conviction. (ECF No. 22-2 at 2.) Then in December 2009, Alexander was tried and found guilty of first degree assault and unlawful ownership of a

4 Colo. Rev Stat. § 18-1.3-801(2)(a)(I)(A) provides that a person convicted of a felony in Colorado who has been three times previously convicted of a felony shall be adjudged a habitual criminal and "shall be punished for the felony offense of which such person is convicted by imprisonment in the [DOC] for a term of four times the maximum of the presumptive range pursuant to § 18-1.3-401 for the class of felony of which such person is convicted."

dog. (Id.) The trial court adjudicated Alexander a habitual criminal and sentenced him to sixty four years in the custody of the Colorado Department of Corrections. (Id. 2-3.) The CCA affirmed Alexander's convictions and sentences. (Id. at 33.)

Alexander returned to the trial court seeking postconviction relief under Colo. R. Crim. P. 35(c). As relevant here, Alexander based his postconviction motion on a claim of ineffective assistance of counsel regarding advice received during plea negotiations and a claim that his 64-year sentence violated the Eighth Amendment. (Id. at 23.) The Adams County District Court denied the Rule 35(c) motion after holding an evidentiary hearing ("Hearing") on the ineffective assistance of counsel claim. (Id. at 15-16.) The CCA affirmed the denial of postconviction relief. (Id. at 29.)

After the state proceedings concluded, Alexander brought the instant habeas corpus action on May 17, 2021. (ECF No. 1.) The parties were ordered to address the procedural defenses of timeliness and exhaustion of state remedies. (ECF No. 8.) Respondents filed a Pre-Answer Response, conceding that Alexander's claims were timely and exhausted. (ECF No. 14.) Accordingly, Respondents were ordered to file an answer addressing the merits of Claims 1-5, and Alexander was ordered to file a reply. (ECF No. 15.) The claims are now fully briefed (ECF Nos. 22, 42), and the Court will review the merits of the following five claims:

1. There was insufficient evidence to support Alexander's conviction for first degree assault ("Claim One") (ECF No. 1 at 8-12);

2. Alexander's due process rights were violated because the trial court did not dismiss the assault charge as a sanction for the government's destruction of Nala before trial ("Claim Two") (id. at 12-15);

3. Trial counsel was constitutionally ineffective during plea negotiations by failing to adequately advise Alexander of the mandatory 64-year sentence he faced if convicted of the assault charge and adjudicated a habitual criminal ("Claim Three") (id. at 16-19);

4. Alexander's 64-year sentence is so disproportionate to the crimes he was convicted of committing that it violates the Eighth Amendment ("Claim Four") (id. at 19-22); and

5. Alexander's right to a fair trial was violated because the prosecution's dog training expert was allowed to testify that Nala (Alexander's dog) had some type of training and took commands ("Claim Five") (id. at 22-24).

As relief, Alexander asks the Court to grant either a conditional or unconditional writ of habeas corpus. (Id. at 28.)

III. ANALYSIS

Respondents contend the CCA's resolution of each claim was not contrary to, or an unreasonable application of, clearly established federal law, which bars habeas relief under § 2254(d)(1). (See ECF No. 22.) Respondents also argue that the CCA's factual findings were not unreasonable, making relief unavailable under § 2254(d)(2). (Id.) Alexander maintains the state criminal proceedings violated his constitutional rights, requiring habeas relief. (See ECF No. 42.) The Court discusses each claim below.

A. Claim One: Sufficiency of the Evidence

Alexander first claims that the prosecution presented insufficient evidence for the

jury to find him guilty beyond a reasonable doubt of first degree assault as an accomplice to Apodaca-Zambori. (ECF No. 1 at 8-12; ECF No. 42 at 5-18.) Alexander's argument is twofold: (1) it was Apodaca-Zambori who ordered Nala to attack the victim; and (2) the prosecution did not present enough evidence for a reasonable jury to find that he aided, abetted, advised, or encouraged Apodaca-Zambori to command Nala to attack the victim. (See id.)

Respondents disagree. They contend that AEDPA bars relief under § 2254(d)(1) because the CCA's denial of the claim was not contrary to, or an unreasonable application of, any binding Supreme Court precedent. (ECF No. 14 at 10-16.) Respondents also argue that the CCA's factual findings are supported by the record, so habeas relief is not available under § 2254(d)(2). (Id. at 14-16.)

1. CCA's Denial of the Claim

The CCA concluded that sufficient evidence was presented for the jury to find Alexander guilty of first-degree assault as Apodaca-Zambori's accomplice. The CCA's analysis reads as follows:

III. Sufficiency of the Evidence: First Degree Assault

Alexander asserts that the trial court erred in denying his motion for acquittal, because the prosecution presented insufficient evidence to support his conviction of first degree assault. We disagree.

A. Standard of Review

We review de novo whether sufficient evidence existed to support a defendant's conviction. Clark v. People, 232 P.3d 1287, 1290 (Colo. 2010).

In so doing, we consider "whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt."

People v. Bryant, 2013 COA 28, ¶ 15, 316 P.3d 18 (quoting Clark, 232 P.3d at 1291).

B. Discussion

Section 18-3-202(1)(a), C.R.S. 2012, provides, in relevant part: "A person commits the crime of assault in the first degree if ... [w]ith intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon." Section 18-1-603, C.R.S. 2012, provides for complicitor liability in Colorado, "A person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense."

Thus, a defendant can be held liable as a principal for first degree assault if (1) he or she knows a third person intends to cause serious bodily harm to another person by means of a deadly weapon, (2) he or she intends to promote or facilitate the assault, (3) he or she aides, abets, advises, or encourages the other person in the planning or commission of the assault, and (4) the assault results in serious bodily harm to any person.

Here, the jury was properly instructed on the elements of first degree assault and complicitor liability. Alexander asserts, however, that the prosecution failed to present evidence that demonstrated he knew that Apodaca-Zambori intended to use the dog to attack LF, that he intended to facilitate that attack, and that he aided, abetted, advised, or

encouraged Apodaca-Zambori in the planning or commission of the attack. We conclude, however, that the prosecution presented sufficient evidence upon which the jury could reasonably conclude that all elements of first degree assault and complicitor liability were met. The evidence upon which the verdict could have been reached included: (1) the initial confrontation between Alexander and LF's family, during which Alexander used aggressive and abusive language; (2) Alexander's commands to the other people on the scene not to let LF's family leave while he went inside the tattoo shop; (3) Alexander's and Apodaca-Zambori's entrance into and exit from the tattoo shop in close proximity to one another; (4) Alexander's knowledge that the dog was vicious; (5) past incidents in which the dog attacked alleged trespassers, and (6) Alexander's statement to LF after the attack that she was lucky it was only his dog and not his "strap."

This evidence, taken in the light most favorable to the prosecution, supports the reasonable inferences that Alexander intended to cause LF harm, that he prevented her from leaving the alley in order to inflict the harm, and that he instructed, advised, or encouraged Apodaca-Zambori to use the dog to attack her. Such inferences would satisfy the elements of first degree assault and complicitor liability and support the jury's verdict.

Accordingly, we conclude that the trial court did not err in denying Alexander's motion for acquittal.

(ECF No. 22-1 at 9-12.)

2. Application of § 2254

The federal standard for evaluating a claim challenging the sufficiency of evidence is found in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson, 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." Id. at 319, 99 S.Ct. 2781 (emphasis in original). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. "Under Jackson, federal courts must look to state law for 'the substantive elements of the criminal offense,' but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." Coleman v. Johnson, 566 U.S. 650, 655, 132 S.Ct. 2060, 182 L.Ed.2d 978 (2012) (per curiam) (quoting Jackson, 443 U.S. at 324 n.16, 99 S.Ct. 2781). To the extent an insufficient evidence claim involves an interpretation of state law, the state court's interpretation "binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (per curiam).

"Sufficiency of the evidence is a mixed question of law and fact." Maynard v. Boone, 468 F.3d 665, 673 (10th Cir. 2006). The Court must apply both §§ 2254(d)(1) and (d)(2) and "ask whether the facts are correct and whether the law was properly applied to the facts." Id. The Court is "required to defer to any determination of factual issue by the state court due to the presumption of correctness afforded by § 2254(e)," unless the petitioner overcomes that presumption with "clear and convincing evidence." Id.

"Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial

deference." Coleman, 566 U.S. at 651, 132 S.Ct. 2060. "First, on direct appeal, it is the responsibility of the jury-not the [state] court-to decide what conclusions should be drawn from the evidence admitted at trial." Id. (internal quotation marks omitted). Second, "on habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was objectively unreasonable." Id. (internal quotation marks omitted).

The Court finds that the CCA's rejection of Alexander's sufficiency of the evidence claim was objectively reasonable under Jackson. To start, the facts are correct. The Court has carefully reviewed the state court record, and it supports the CCA's summary of the evidence. (ECF No. 23, Dec. 7, 2009, Trial Tr. at 24-25, 43-56, and 79-82; see also Dec. 8, 2009, Trial Tr. at 152-67.) When viewing that evidence as a whole, and in the light most favorable to the prosecution, the CCA reasonably concluded that sufficient evidence was presented to establish the four elements of first degree assault and complicitor liability:

1. Alexander knew Apodaca-Zambori intended to cause serious bodily harm to the victim by means of a deadly weapon—Alexander had knowledge the dog was vicious based on a prior incident, he aggressively confronted the victim and her family, directed other people not to let them leave, and walked into and out of the tattoo shop with Apodaca-Zambori who returned holding the dog.

2. Alexander intended to promote or facilitate the assault—the same evidence just discussed supports this element. Additionally, Alexander's statement that the victim was lucky it was only his dog and not his gun provides evidence that Alexander approved of the attack. A reasonable jury could also infer from this statement, and the circumstances surrounding the attack, that it was Alexander who was directing the situation.

3. Alexander aided, abetted, advised, or encouraged Apodaca-Zambori in the planning or commission of the assault—the evidence supporting elements one and two applies here as well. Alexander aggressively confronted the victim and her family, commanded other people not to let them leave, walked into and out of the tattoo shop with Apodaca-Zambori who returned holding the dog, and Alexander told the victim she was lucky it was only his dog and not his gun.

4. The assault resulted in serious bodily harm to the victim—the victim's injuries required 82 stitches, multiple surgeries, skin grafts, and resulted in nerve damage, permanent scarring, and ongoing pain.

This evidence was sufficient for a jury to find Alexander guilty beyond a reasonable doubt as an accomplice to first degree assault.

Alexander tries to avoid this conclusion. He relies heavily on the fact that it was Apodaca-Zambori who issued the command for Nala to attack, and he minimizes his involvement in the events leading up to the attack, insisting that his conduct was merely consistent with an intent to establish himself as the owner of the property. (ECF No. 42 at 13-18.) But the jury saw things differently. And it is the jury's responsibility "to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319, 99 S.Ct. 2781. A jury weighing the evidence against Alexander is not grounds for habeas relief.

The Court finds that under §§ 2254(d)(1) and (d)(2) the CCA correctly determined the facts relevant to this claim and properly applied the law to those facts. Therefore, Claim One is denied.

B. Claim Two: Destruction of evidence

Alexander next claims that the trial court violated his right to due process when it denied his motion to dismiss the assault charge as the remedy for destroying Nala before trial. (ECF No. 1 at 12-15; ECF No. 42 at 21.)

1. CCA's Denial of the Claim

The CCA rejected Claim Two, finding that the trial court acted within its discretion in denying the request to dismiss the assault charge as a sanction for the destroyed evidence:

VII. Destruction of Evidence

Alexander asserts that the trial court abused its discretion by not dismissing his assault charge as a sanction for the prosecution's destruction of evidence when it euthanized Nala prior to trial, because the evidence was irreplaceable. We disagree.

A trial court is afforded substantial discretion in fashioning a sanction for unlawful destruction of evidence. People v. Daley, 97 P.3d 295, 298 (Colo. App. 2004). However, a trial court's discretion in this regard is not unlimited. "In imposing sanctions, the trial court should be cautious not to affect the evidence to be introduced at trial or the merits of the case more than necessary." Id. Therefore, when fashioning an appropriate sanction prior to trial, courts should consider "(1) the reason for the delay in providing the requisite discovery; [and] (2) any prejudice a party has suffered as a result of the delay." People v. Lee, 18 P.3d 192, 196 (Colo. 2001).

In certain circumstances, complete dismissal of a charge may be a proper remedy for the prosecution's failure to preserve relevant evidence. Id. "However, in the absence of willful misconduct or a pattern of neglect demonstrating a need for modification of a party's discovery practices, the rationale for a deterrent sanction loses much of its force." Id. This is particularly true in criminal cases, where "the need to find the truth is the paramount interest at stake." Id. at 196-97 (quoting People v. Cobb, 962 P.2d 944, 949 (Colo. 1998)).

Here, animal control officers seized Nala following the attack. Prior to trial, a municipal court judge ordered Nala to be euthanized under the municipal code. Accordingly, Nala was not available at or before trial.

Alexander moved the court for sanctions related to the government's failure to preserve Nala. Specifically, he asserted that his case should be dismissed, because the prosecution violated his due process rights and its duty to preserve and disclose exculpatory evidence. The trial court granted Alexander's motion in part, dismissing the charge for ownership of a dangerous dog, but declining to dismiss the other counts.⁵

Alexander asserts that the trial court's decision not to dismiss the assault

5 Subsequent to the trial court's dismissal of this charge, Alexander requested the trial court submit the charge to the jury as a lesser nonincluded offense. Accordingly, notwithstanding the trial court's sanction, Alexander elected to be tried, and was eventually convicted of, unlawful ownership of a dangerous dog.

charge was an abuse of its discretion, because Nala was indispensable evidence for his defense against the assault charge. We conclude, however, that the trial court acted within its discretion for two reasons.

First, the record demonstrates that the destruction of Nala was not the result of bad faith misconduct or a pattern of negligence on the part of the government. See People v. Clements, 661 P.2d 267, 273 (Colo. 1983). And while good faith destruction of evidence does not necessarily excuse the misconduct, id., the trial court sanctioned the government by dismissing one of Alexander's charges. Accordingly, the added deterrent effect of dismissing additional charges would have been outweighed by the truth-finding interest inherent in criminal cases.

Second, although the destruction of Nala may have prejudiced Alexander, the prejudice was not so significant that it warranted dismissal of the assault charge. Nala's ability to attack on command constituted a key theory in the prosecution's case. Notwithstanding the destruction of evidence, Alexander was able to rebut this theory. For example, he introduced witnesses who were familiar with Nala's temperament and training, and who testified that Nala was not aggressive and was not trained to attack.

Similarly, he introduced a video of Nala interacting with people in a nonaggressive manner following the attack. Accordingly, we conclude that the destruction of evidence did not prejudice Alexander such that he was unable to present an effective defense.

Therefore, the trial court did not abuse its discretion by only dismissing the ownership of a dangerous dog charge, and not dismissing the assault charge, as a sanction for the destruction of evidence.

(ECF No. 22-1 at 23-27.)

2. Application of § 2254

Respondents contend that there is no binding Supreme Court precedent "[w]ith respect to the appropriate remedy when this type of violation is found." (ECF No. 22 at 17 (emphasis in original).) Because there is an absence of clearly established Supreme Court precedent which required the dismissal of the assault charge against Alexander, Respondents' argue, it spells the end of Claim Two under § 2254(d)(1). (Id. at 16-18.) The Court agrees.

The principal point here is that the CCA did not unreasonably apply clearly established federal law as determined by the Supreme Court. Alexander makes the general claim that "[t]he government's failure to dismiss the assault charge violated due process requirements of the Fifth and Fourteenth Amendments because Nala's destruction deprived Alexander of irreplaceable evidence that substantially impaired his ability to defend against both the dangerous dog charge and the assault charge." (ECF No. 15 (emphasis in original).)

Yet Alexander does not show how the CCA arrived at a conclusion in contravention of Supreme Court precedent on a question of law. In fact, the CCA concluded that the government had unlawfully destroyed evidence under existing precedent—and that conclusion is not in dispute. Alexander argues that all charges should have been dismissed, not just the ownership of a dangerous dog charge. But Alexander does not point to, and the Court has not found, a materially indistinguishable Supreme Court decision that compels such a result. See Williams, 529 U.S. at 405, 120 S.Ct. 1495. Since Alexander does not cite a

Supreme Court decision that required dismissal of the assault charge, the claim fails. House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008) ("The absence of clearly established federal law is dispositive under § 2254(d)(1).").

Moreover, Claim Two also fails when it is considered in the context of Supreme Court precedent which addresses the destruction of evidence. To be sure, the Supreme Court has held that the government's destruction of evidence can violate due process. California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). A due process violation occurs when the state fails to preserve or destroys evidence that has "an exculpatory value that was apparent before the evidence was destroyed" and was "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Trombetta, 467 U.S. at 489, 104 S.Ct. 2528.

In Youngblood, however, the Supreme Court clarified that the Due Process Clause does not impose "on the police an undifferentiated and absolute duty to retain and preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Youngblood, 488 U.S. at 58, 109 S.Ct. 333. Instead, if the evidence is only potentially useful—e.g., evidence that "could have been subjected to tests, the results of which might have exonerated the defendant"—there is no due process violation unless the defendant proves the state acted in bad faith. Id. at 57-58, 109 S.Ct. 333.

Nothing about the CCA's resolution of Claim Two was contrary to, or an unreasonable application of, Trombetta and Youngblood. At most, Alexander argues that if Nala were available at trial, the dog could have been observed by a rebuttal expert or the jury, which could have shown her purported non-aggressive manner. In other words, Nala could have been potentially useful evidence. But "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Youngblood, 488 U.S. at 58, 109 S.Ct. 333. The CCA found the government had not acted in bad faith, which is a factual finding that must be presumed correct in the absence of clear and convincing evidence to the contrary. Alexander does not present clear and convincing evidence to rebut the presumed correctness of this determination under § 2254(e)(1). As such, habeas relief is not available on this claim.

C. Claim Three: Ineffective assistance of trial counsel

Alexander's third claim seeks habeas relief on the grounds that his trial counsel's advice during plea negotiations violated his Sixth Amendment right to the effective assistance of counsel. (ECF No. 1 at 16-19.) Respondents contend that the AEDPA bars relief under § 2254(d)(1) because the CCA's denial of the claim was not contrary to, or an unreasonable application of, any binding Supreme Court precedent. (ECF No. 22 at 24.) Additionally, Respondents argue that relief is barred under § 2254(d)(2) because the CCA's factual findings were not unreasonable. (Id. at 25.)

For the reasons discussed in detail below, the Court finds that § 2254 does not bar relief in this case, and that Alexander has shown he was prejudiced by the ineffective assistance of counsel during plea negotiations.

1. Legal Standard

A defendant's Sixth Amendment right to counsel attaches at all critical

stages in the proceedings "after the initiation of formal charges," Moran v. Burbine, 475 U.S. 412, 431, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), and has been specifically held to include plea negotiations, Lafler v. Cooper, 566 U.S. 156, 163, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). The two-part test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to challenges involving the rejection of a plea offer resulting in a conviction at trial and a sentence more severe than the one offered. Lafler, 566 U.S. at 163-64, 132 S.Ct. 1376. "The performance prong of Strickland requires a defendant to show that counsel's representation fell below an objective standard of reasonableness." Id. (internal quotation marks omitted). The second, prejudice prong requires a defendant to show that but for the ineffective advice of counsel there is a reasonable probability that: (1) "the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances)"; (2) "the court would have accepted its terms"; and (3) "the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Id.

To establish prejudice, a defendant need not demonstrate that his counsel's deficient conduct more likely than not altered the outcome in the case. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. He need only demonstrate a "reasonable probability" of prejudice, i.e., "a probability sufficient to undermine confidence in the outcome" of the case. Id.

2. CCA's Denial of the Claim

In response to Alexander's motion for postconviction relief under Colo. R. Crim. P. 35(c), the postconviction court conducted the Hearing in March 2018 on his claim of ineffective assistance of counsel. (ECF No. 22-2 at 15.) Four witnesses testified at the Hearing: (1) Alexander; (2) David Juarez, Alexander's trial counsel; (3) Alexander's friend, Justin Ross Goptlin; and (4) Patrick Vance, an expert in the standards of practice for criminal defense attorneys. (ECF No. 23, Mar. 16, 2018, Hearing Tr. at 1; Apr. 3, 2018, Trial Tr. at 1-2.) The following summary of the Hearing testimony reflects the findings of the CCA:⁶

6 The CCA deferred to the postconviction court's credibility determinations and findings of fact and reviewed its legal conclusions de novo. (ECF No. 22-2 at 7, 17.)

Prior to Alexander's October 2008 preliminary hearing, the prosecution had extended a plea offer for Alexander to plead guilty to a class 4 felony offense with no sentencing concessions. (ECF No. 22-2 at 7.) With respect to this first plea offer, Juarez advised Alexander that if he rejected the deal and was found guilty at trial, he would be facing a sentencing range of ten to thirty-two years. (Id. at 8.) On the other hand, if Alexander accepted the plea offer, he could be sentenced to a maximum of 16 years. (Id.; ECF No. 23, Apr. 3, 2018, Hearing Tr. at 84.) Juarez advised Alexander that he had "minimum culpability" and that he had "a really good case." (ECF No. 22-2 at 7.) Juarez testified that Alexander rejected the offer because "[he] didn't do anything wrong," "[he] didn't do anything to cause the dog to attack the [victim]," and he didn't want to go to prison for 12 years. (Id. at 7-8.)

Hearing testimony also established that two months later, in December 2008, the prosecution extended a second plea offer which involved a stipulated prison term of 12 years or a cap of 16 years in exchange for Alexander's guilty plea to a class 4

felony. (Id. at 9.) At this point, Juarez told Alexander that the prosecution was "looking to add charges, [but] no decision had been made at that point [about] what charges were going to be added." (Id. at 9.) Juarez communicated the second offer to Alexander who, the CCA found, rejected it for the same reasons he rejected the first offer. (Id. at 9.)

Of critical importance to Alexander's Claim Three is the fact that Juarez's advice to his client concerning the first and second plea offers entirely failed to incorporate any information regarding the risks of habitual criminal sentencing. (Id. at 16; ECF No. 23, Apr. 3, 2018, Hearing Tr. at 85.) On this point, the postconviction court and the CCA found that Juarez was not on notice of the habitual counts until they were actually filed in January 2009. (ECF No. 22-2 at 9; ECF No. 23, Apr. 3, 2018, Hearing Tr. at 85.) Thus, according to the CCA, it wasn't until January 2009 that Juarez was in a position to advise Alexander about the potential consequences of being adjudicated a habitual criminal. (ECF No. 22-2 at 9-10.) But, according to the CCA, by that point the time for Alexander to accept the October 2008 plea offer had expired. (Id. at 10.) Moreover, the CCA further found, Juarez's advice was incorrect; he told Alexander that he could receive a 48-year sentence if convicted at trial and adjudicated a habitual criminal, but Alexander actually faced a mandatory 64-year prison sentence. (Id.)

The CCA also found that in August 2009 the prosecution extended a third plea offer to Alexander which involved a stipulated prison term of 12 years in exchange for a guilty plea to a class 4 felony. (Id. at 10; ECF No. 23, Apr. 3, 2018, Hearing Tr. at 85.) According to the CCA, Alexander rejected the third offer for the same reasons that he rejected the first two offers. (Id. at 11.) Further, the CCA affirmed the postconviction court's finding that his decision to reject the third offer did not hinge on the 16-year disparity between the sentence exposure as represented to Alexander (48 years) and the actual sentence exposure faced by Alexander at trial (64 years). (Id. at 16, 18.)

Of dispositive importance to this Court's decision on Claim Three is its determination, after a pain-staking and exhaustive review of the record before the CCA, that the CCA's factual findings are not supported by, and indeed are inconsistent with, with relevant Hearing testimony.

Alexander testified that he only recalled being informed about one plea offer, which was before the preliminary hearing in October 2008. (Id. at 12.) The plea offer of which Alexander recalled being informed included a stipulated 16-year sentence. (Id.) Alexander testified that Juarez advised him that the prosecution might add habitual counts if he did not accept the plea deal, and that, if convicted at trial and adjudicated as a habitual criminal, he faced a 32-year sentence with parole eligibility after 16 years. (Id.) Alexander also testified that if he had been told that he faced a mandatory 64-year sentence, he would have taken the plea deal. (Id. at 14.) The CCA deferred to the postconviction court's finding that Alexander's testimony was not credible. (Id. at 17.) Consequently, both courts based their respective rulings on Juarez's version of events.

After summarizing the testimony relevant to this claim and stating the correct legal standard to be applied, the CCA affirmed the postconviction court's decision, reasoning:

No one disputes that trial counsel's improper penalty advisement constitutes deficient performance. See Carmichael [v. People], 206 P.3d [800] at 806 [(Colo. 2009)]. Therefore, we focus only on whether the record supports the postconviction court's finding that Alexander

failed to establish prejudice resulting therefrom is supported by the record. See Dunlap [v. People], 173 P.3d [1054] at 1063 [(Colo. 2007)]. We conclude that it does.

Counsel testified that his October 2008 sentencing advisement did not incorporate habitual criminal sentencing because no habitual criminal charges had been filed. While we recognize that Mr. Alexander had a different recollection, we must defer to the court's credibility findings, and therefore conclude that Mr. Alexander's rejection of the October 2008 plea offer could not have been based on counsel's improper habitual criminal sentencing advisement. See Washington, ¶ 17 ("The postconviction court determines the weight and credibility to be given to the testimony of witnesses in a Crim. P. 35(c) hearing."); cf. Carmichael, 206 P.3d at 807 (the defendant's claim of prejudice was corroborated by defense counsel's testimony that he believed the defendant rejected a plea bargain in reliance on his deficient sentencing advice).

As well, the postconviction court considered, but could find no logical basis for, Mr. Alexander's testimony that counsel told him that he faced a sentence of "eight times four" if adjudicated a habitual criminal. And neither can we. Consistent with Mr. Alexander's testimony, a person adjudicated a habitual criminal must be sentenced to, as relevant here, four times the maximum of the presumptive sentencing range. See § 18-1.3-801(2)(a)(I)(A), C.R.S. 2019. It is unclear where counsel allegedly arrived at a presumptive range maximum of eight years. Instead, the presumptive range maximum for a class 3 felony, such as first degree assault, is either twelve years or sixteen years (with the extraordinary risk of harm aggravator). See § 18-1.3-401(1)(a)(V)(A), 10(a), C.R.S. 2019. Given Mr. Alexander's knowledge of the criminal justice system, his testimony of the accurate penalty, and his claim that he believed habitual charges had been filed when he rejected the offer, we conclude the record supports the court's finding that the sixteen-year disparity played no role in his decision to reject the plea offer.

Instead, counsel's testimony supports the postconviction court's finding that Mr. Alexander's rejection of the plea offer was based on his belief that he was innocent, that he had a good chance of obtaining a favorable outcome at trial, and that his conduct did not justify accepting a plea deal that called for a prison sentence. In fact, Mr. Alexander acknowledged that his belief that he had a good case and could win at trial "turned when [the codefendant's trial] got severed from the case" in August 2009 and that, when he inquired about a plea offer thereafter, "by that time ... the deal was gone."

On this record, we discern no error in the postconviction court's finding that Mr. Alexander failed to establish a reasonable probability that, but for counsel's incorrect sentencing advisement, he would have accepted the plea offer rather than proceed to trial. See Carmichael, 206 P.3d at 807 ("Once some independent, objective evidence is introduced to support a defendant's claim of prejudice, a trial court has discretion to weigh the various evidence and reach a conclusion regarding whether the defendant was harmed by counsel's ineffective representation."); see also Washington, ¶ 17 ("When the evidence in the record supports the [postconviction] court's [Crim. P. 35(c)] findings, we will not disturb those findings on review.").

(ECF No. 22-2 at 16-19.)

3. Application of § 2254

Respondents contend that the AEDPA bars relief under both § 2254(d)(1) and

§ 2254(d)(2). (ECF No. 22 at 24-25.) The Court elects to take up the 2254(d)(2) inquiry first and, because it finds that 2254(d)(2) does not bar relief, it need not address whether the state court's ruling was an "unreasonable application of ... clearly established federal law" under § 2254(d)(1). Brumfield, 576 U.S. at 312, 135 S.Ct. 2269; Sharp v. Rohling, 793 F.3d 1216, 1226 (10th Cir. 2015) ("We do not address [petitioner's] § 2254(d)(1) arguments because we conclude [the petitioner] satisfies § 2254(d)(2).").

In conducting its § 2254(d)(2) inquiry, the Court does not question the propriety of the legal standard the CCA applied. Instead, the Court focuses its attention on the underlying factual determinations on which the CCA's decision was predicated. As stated above, the Court accords the state court's decision substantial deference, Brumfield, 576 U.S. at 314, 135 S.Ct. 2269, and presumes that a state court's factual findings are correct unless rebutted by "clear and convincing evidence," § 2254(e)(1).

However, "[t]his standard does not require ... abject deference," Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir. 2007) (quotations omitted), as the Supreme Court has made clear:

Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief. A federal court can disagree with a state court's ... determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.

Miller-El I, 537 U.S. at 340, 123 S.Ct. 1029; see also Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (holding the AEDPA "standard is demanding but not insatiable") ("Miller-El II"). Accordingly, "if the petitioner can show that 'the state courts plainly misapprehend[ed] or misstate[d] the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim, that misapprehension can fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable.'" Smith, 824 F.3d at 1241 (alterations in original) (quoting Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016)).

Here, a thorough examination of the record before the CCA compels the Court to conclude that Alexander has established, by clear and convincing evidence, that the CCA misapprehended several key facts upon which its rulings were premised, and that the misapprehension goes to material factual issues that are central to Claim Three, fatally undermining the fact-finding process and, as a consequence, rendering the CCA's decision on Claim Three unreasonable.

What Juarez Actually Knew, and When He Knew It

The starting point for the CCA's analysis was that "[n]o one disputes that [Juarez's] improper penalty advisement constitutes deficient performance." (ECF No. 22-2 at 16.) The CCA reasoned, however, that Alexander's rejection of the October 2008 offer could not have been causally related to the deficient advisement, because that advisement was not given to Alexander until after Juarez was on notice that habitual charges had been added in 2009. (Id.) Therefore, the CCA concluded, Alexander was not prejudiced by Juarez's deficient advisement. (Id.)

But in coming to this conclusion, the CCA ignored clear and convincing evidence which established that, as early as August 2008, attorney Juarez was fully aware of Alexander's prior felonies and

thus, as of this earlier date, he well knew that the habitual counts would almost certainly be added to the already pending charges if Alexander did not accept a plea offer.

The question of when Juarez knew that Alexander faced the risk of being adjudicated as a habitual criminal could not be more central to Alexander's third claim. If Juarez was not on notice that the habitual counts could be filed when he advised Alexander about the desirability of the October and December 2008 plea deals, he clearly would have had no duty to inform Alexander of the risk of being adjudicated a habitual criminal. In that case, the CCA's finding would have been fully supported by the record evidence, and thus entirely reasonable. But here, there can be no doubt that the record unequivocally establishes that Juarez was on notice as early as August 2008 that the addition of habitual counts posed an immense, and almost certain, sentencing risk to his client.

At the evidentiary hearing, Juarez's trial folder was admitted as an exhibit. The folder included two notes attached to this Order as Exhibit A and Exhibit B. In the first note, dated August 24, 2008, Juarez writes, "Prior felony Nevada—5 prior felonies." (Ex. A.) In the second, dated September 30, 2008, he writes, "Habitual criminal—not filed yet." (Ex. B.)⁷

7 Juarez's notes are appended as exhibits to this Order due both to their central importance to Claim Three, and as a result of the less-than-ideal condition of the state court record. The contents of Juarez's trial folder was not scanned, so there are no page numbers to cite. The appended notes are two pages of the approximately 600 loose pages found in a folder received from the state court clerk. Juarez's entire trial folder of about 600 pages was entered into evidence at the Hearing as Exhibit A. The Court's best effort at a record citation for appended Exhibits A and B would be: ECF No. 23, March 16, 2018 Hearing, Exhibit A.

Juarez reviewed his notes at the Hearing and testified that in September 2008 he knew about Alexander's prior felonies and knew that habitual counts might be added by the prosecutors:

Q: And in that [note] I noticed that you testified that you had made a notation that said no habituals filed?

A Correct. At that point, I was aware that he had prior felonies but at that point no habitual criminal counts had been filed.

Q So that you definitely were aware it was a possibility?

A Yes.

(ECF No. 23, Mar. 16, 2018, Hearing Tr. at 102) (emphasis added).

Critically, nowhere in its decision does the CCA make reference to these two notes, or to this portion of Juarez's testimony. It is true the CCA acknowledged Juarez's testimony that he told Alexander in December that the prosecution was "looking to add charges, [but] no decision had been made at that point [about] what charges were going to be added," (ECF No. 22-2 at 9.) Inexplicably, however, the CCA ignored the clear evidence in the record showing that Juarez knew, as early as August 2008, that Alexander had five prior felony convictions out of Nevada and, although not yet filed, that additional habitual criminal charges would almost certainly be added in the absence of an earlier plea deal.⁸ Given this evidence, the Court finds that the CCA's denial of Alexander's ineffective assistance of counsel claim is, in part, substantially undermined by its failure to consider this critical portion of Juarez's Hearing testimony—corroborated by his contemporaneous notes—that favors Alexander and is central to his third claim. Miller-El I, 537 U.S. at 346, 123 S.Ct. 1029.

8 Alexander's prior convictions were for conspiracy to commit robbery, attempted grand larceny, possession of a firearm by an ex-felon, and battery with substantial bodily harm. (ECF No. 22-2 at 26; ECF No. 23, ECF No. 23, Mar. 16, 2018, Hearing Tr. at 59-60, 134-136.) These convictions date from 1994 to 2001. (ECF No. 23, Mar. 16, 2018, Hearing Tr. at 124, 134-136.)

The Nonexistent Third Plea Offer

The CCA's mistaken reliance on facts not found in the record did not end there. The Court also finds that the CCA unreasonably deferred to the postconviction court's finding that Alexander was not credible when he testified that he would have accepted the October 2008 plea deal had he been told that he faced a mandatory 64-year sentence. (ECF No. 22-2 at 17.) The postconviction court's finding is fatally undermined by its reliance on an unsupported factual determination, rendering the CCA's subsequent deference to such determination unreasonable.

The postconviction court's credibility determination was based in large part on its finding that Alexander rejected a third plea offer in August 2009, after he had purportedly been informed about the additional sentencing exposure he faced due to the habitual counts being added. (ECF No. 23, Apr. 3, 2018, Hearing Tr. at 96.) Without questioning its accuracy, the CCA adopted this version of events, stating:

In August 2009, the parties again engaged in plea negotiations, which resulted in a plea offer for Mr. Alexander to plead guilty to a class 4 felony offense in exchange for a stipulated twelve-year prison sentence. (ECF No. 22-2 at 10.)

Taking the third plea offer as a given, the postconviction court acknowledged that Alexander should have been told that he faced a 64-year sentence, but it reasoned that the 16-year disparity between the sentence exposure as represented to Alexander (48 years) and the actual exposure faced by Alexander going to trial (64 years) was not a determining factor in Alexander's rejection of the plea offer. (ECF No. 23, Apr. 3, 2018, Hearing Tr. at 96.) Based in part on this reasoning, the postconviction court determined that Alexander was not credible when he testified that he would have accepted a plea deal if he had been advised of the 64-year mandatory sentence. (Id.)

While this reasoning appears reasonable on the surface, it collapses when one comes to understand that the record fails to support the finding that there was ever a third plea offer made in the first instance, or that Alexander had elected to reject it. In short: Juarez unequivocally testified at the Hearing that in fact a third plea offer was never made by the prosecution. Most surely, therefore, Alexander could not ever have rejected an offer that was in fact never made.

Juarez testified that while there was a discussion about a potential plea deal in August 2009, in fact no plea offer was ever made at that time:

Q: Now, August, August happens. And you have another plea offer, or at least some fashion of a plea offer from the District Attorney?

A [Juarez]: A discussion about a potential plea.

Q: And that was what?

A [Juarez]: ... I talked to Mr. Alexander. At that point there was no offer on the table.

....

Q: But after August 7th or August 10th there was no plea offer to convey, right?

A [Juarez]: I don't even know there was actually a plea bargain offer made

on the 7th or the 10th .... We never finalized offer acceptance or rejection, we never did that. And in terms of my discussions with Mr. Alexander, at that time there was no specific offer plead guilty to count 2, and we will dismiss all the remaining counts and agree to this at sentencing. We were still discussing negotiating terms.

(ECF No. 23, Mar. 16, 2018, Hearing Tr. at 80, 97 (emphasis added).)

Simply put, neither the postconviction court nor the CCA made any effort to explain how it was that they determined that a third plea offer had been extended to and rejected by Alexander when Juarez—the only person in a position to have communicated such an offer to his client—unequivocally testified that no such third plea offer was ever made.

Moreover, Alexander testified, unrebutted, that he would have accepted the October 2008 plea offer had he known that he risked a mandatory 64-year sentence. The postconviction court's determination that this testimony was not credible is based on the inaccurate factual premise that Alexander had rejected a third plea offer even though, by that point, he knew the habitual counts exposed him to a 48-year sentence. But such an offer to and rejection of a third plea offer by Alexander simply never took place.

As the Supreme Court noted in Miller-El I, the state court fact finding process is undermined where the state court has before it, yet for some reason ignores, important testimony that favors the petitioner. Miller-El I, 537 U.S. at 346, 123 S.Ct. 1029 (noting that concerns about the reasonableness of the state court's factual findings were "amplified by the fact that the state court also had before it, and apparently ignored, testimony" that could impact the outcome of the case); see also Alexander v. Cockrell, 294 F.3d 626, 631 (5th Cir. 2002) (per curiam) (state trial court's finding was unreasonable where it "erred in reading" affidavit of counsel).

The Court finds that the CCA's conclusion on this issue—that because he had previously rejected a non-existent third plea offer Alexander was not credible when he testified at the Hearing that he would have accepted the October 2008 plea deal had he been told he faced a mandatory 64-year sentence—either misapprehends or misstates the key testimony from the Hearing on this issue, is fundamentally at odds with Juarez's actual testimony, and is thus clearly erroneous. Given that this misapprehension or misstatement of the facts of record is central to Alexander's Claim Three, the CCA's factual determination on this point is manifestly unreasonable and cannot stand. Miller-El I, 537 U.S. at 346, 123 S.Ct. 1029

Alexander's Actual Interest in a Reasonable Plea Deal

Finally, its independent and exhaustive examination of the factual record convinces the Court that the CCA erred for a third time when it found that Alexander was uninterested in any plea offer which included a sentence of incarceration. Relying again on materially inaccurate facts, the CCA reasoned on this point as follows:

[Juarez's] testimony supports the postconviction court's finding that Mr. Alexander's rejection of the plea offer was based on his belief that he was innocent, that he had a good chance of obtaining a favorable outcome at trial, and that his conduct did not justify accepting a plea deal that called for a prison sentence.

(ECF No. 22-2 at 18.) The record simply does not, however, support this factual finding. Juarez's Hearing testimony on this issue directly undermines this determination by the CCA:

Q: And Mr. Alexander at that time was not interested in taking any sort of plea?

A [Juarez]: No, I wouldn't necessarily agree with that. I would say he was not interested in taking that offer.

(ECF No. 23, Mar. 16, 2018, Hearing Tr. at 61.; see also Id. at 83) (emphasis added).

In other words, at the Hearing, Juarez candidly (and without rebuttal) testified under oath that he could not agree with the proposition—suggested to him by the questioner in the form of a leading question—that Alexander was uninterested in any plea deal that called for a prison sentence. The CCA's factual determination on this key issue simply cannot be squared with Juarez's testimony directly to the contrary.

For these reasons, the Court finds that the CCA's conclusion on this issue either misapprehends or misstates the salient testimony from the Hearing and is fundamentally at odds with Juarez's actual testimony; thus, this finding is also clearly erroneous. Given that this misapprehension or misstatement of the facts is key to Alexander's Claim Three, the CCA's factual determination on this point is also manifestly unreasonable and cannot stand. Miller-El I, 537 U.S. at 346, 123 S.Ct. 1029.

* * *

For the reasons discussed above, the Court finds that the CCA's denial of Alexander's ineffective assistance of counsel claim is fatally undermined, individually and surely in the aggregate, by three key erroneous factual determinations upon which its decision is premised. Further, the Court finds that these factual errors have been rebutted by clear and convincing evidence contained within the record before the CCA. As a consequence, because the CCA's resolution of Claim Three "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)(2), the Court is obligated to review Claim Three de novo, and will undertake to do so at this time. See, Magnan v. Trammell, 719 F.3d 1159, 1175 (10th Cir. 2013); Fairchild v. Workman, 579 F.3d 1134, 1158-1159 (10th Cir. 2009); Wilson v. Workman, 577 F.3d 1284, 1303 (10th Cir. 2009); Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011).

4. De Novo Review

a. Deficient Performance

In its de novo review the Court first takes up the initial prong of the Strickland analysis: deficient performance. The Sixth Amendment's guarantee of effective assistance "requires the guiding hand of counsel at every step in the proceedings against [a defendant]." Kimmelman v. Morrison, 477 U.S. 365, 380 n.5, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). "[C]riminal justice today is for the most part a system of pleas, not a system of trials," Lafler, 566 U.S. at 170, 132 S.Ct. 1376, therefore, counsel has a "critical obligation ... to advise the client of 'the advantages and disadvantages of a plea agreement,'" Padilla v. Kentucky, 559 U.S. 356, 370, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (quoting Libretti v. United States, 516 U.S. 29, 50-51, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995)). "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

In this case, there were two (and only two) plea offers extended to Alexander in October and December of 2008. Each offer required him to plead guilty to a class 4 felony, which had a maximum sentence of 16 years. As Juarez testified at the evidentiary Hearing, when he advised Alexander concerning the plea offers, he was already aware that Alexander had five

prior felonies and that habitual counts could be added at any time in the process if his client did not accept the plea deals. Critically, however, Juarez failed to advise Alexander that if he rejected the plea offers, he could be adjudicated as a habitual criminal and receive a mandatory custodial sentence of 64 years. Instead, erroneously, Juarez advised Alexander that if convicted at trial he risked receiving a sentence in the range of 10 to 32 years.

The Tenth Circuit has explained that a defendant's knowledge "of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty." United States v. Washington, 619 F.3d 1252, 1259-60 (10th Cir. 2010) (quoting United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)). Thus, at a minimum, a criminal defense attorney must display a "familiarity with the structure and basic content of the [Sentencing] Guidelines," including "the definition and implications of [the defendant's] career offender status." Day, 969 F.2d at 43. By failing to advise Alexander about the extraordinary risk of being adjudicated as a habitual criminal, Juarez's performance did not meet this minimum standard.

Additionally, at the postconviction court's Hearing, Vance provided unrebutted expert testimony regarding the "minimum standard of practice" for a criminal defense attorney, stating:

[A]s soon as you're on notice you certainly have to advise your client of all the possible outcomes of [the] habitual [counts], and they have to be aware during the plea discussion stage of what the possible punishment is for what the prosecutor could and maybe there's a fairly good chance will do in a case.

(ECF No. 23, Apr. 3, 2018, Hearing Tr. at 17.) Vance's opinion is consistent with the ABA guidelines, which require counsel to engage in "appropriate investigation and study" prior to advising a defendant during plea negotiations, including investigation into "the facts that go to the defendant's potential sentence, including his or her prior record." ABA Standards for Criminal Justice: Pleas of Guilty, Standard 14-3.2 & comment, p. 123 (1999); see also, ABA Standards for Criminal Justice: Prosecution Function & Defense Function, Standard 4-5.1(a) & comment, p. 198 (1999) (counsel must "inform[] himself or herself fully on the facts and the law," which includes the duty to "advise[] fully [the defendant] as to ... the probable outcome of alternative choices").

Based on the foregoing, the Court easily finds and concludes that Juarez's failure to adequately advise Alexander concerning the immense sentencing risk he faced if he rejected the October and December 2008 plea offers was objectively unreasonable under prevailing professional practice standards for criminal defense attorneys, and as a consequence fully satisfies the deficient performance prong of Strickland. See Day, 969 F.2d at 43 (holding that a petitioner stated a Sixth Amendment claim by alleging that in advising him on the desirability of a plea offer, counsel failed to explain the petitioner's possible career offender status and erroneously told him that the maximum prison sentence he could receive was less than half of actual figure); see also Washington v. Smith, 219 F.3d 620, 629 (7th Cir. 2000) (granting habeas relief because counsel's failure to properly investigate possible sentencing exposure constituted deficient performance); United States v. Herrera, 412 F.3d 577, 581 (5th Cir. 2005) ("An attorney who underestimates his client's sentencing exposure by 27 months performs deficiently because he does not provide his client with the information needed to make an informed

decision about accepting a plea offer or going to trial.").

b. Prejudice

As to the second prong of the Strickland test, Alexander must show that there is a reasonable probability that, but for Juarez's deficient performance, (1) he would have accepted the plea offer; (2) the prosecution wouldn't have withdrawn it in light of intervening circumstances; (3) the court would have accepted its terms; and (4) the sentence would have been less severe under the offer's terms than under the judgment imposed. Lafler, 566 U.S. at 164, 132 S.Ct. 1376. In determining whether Alexander has shown prejudice, our task is to make a holistic inquiry into all of the "factual circumstances surrounding the plea." Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001).

The Supreme Court has previously defined "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The burden of establishing a reasonable probability is relatively low, being less than a preponderance of the evidence. See Williams, 529 U.S. at 405-06, 120 S.Ct. 1495 (noting that a state court decision applying a preponderance of the evidence standard would be contrary to Strickland); see also Julian v. Bartley, 495 F.3d 487, 500 (7th Cir. 2007) (a reasonable probability of prejudice is a chance of prejudice that is "better than negligible"). "[T]his assessment can include 'objective' facts specific to a petitioner such as his age, the length of the sentence he faced under the terms of the plea deal, the prospect of minimizing exposure to other charged counts, and so on." Heard v. Addison, 728 F.3d 1170, 1183 (10th Cir. 2013).

Reasonable Probability the October 2008 Plea Offer Would Have Been Accepted

The circumstances presented here provide ample objective evidence to support Alexander's Hearing testimony, as summarized earlier in this Order, that had he been properly advised about the risks of going to trial, he would have accepted the October 2008 plea offer.

The October 2008 plea offer would have required Alexander to plead guilty to a class 4 felony offense that carried a maximum sentence of 16 years. Juarez incorrectly advised his client that if he rejected the offer and went to trial, the worst-case scenario would result in a sentence of 32 years, with parole eligibility. However, because of his prior felonies, Alexander was actually at risk of receiving—and did receive—a mandatory 64-year sentence. The disparity between the maximum sentence under the plea offer, and the sentence that Alexander actually received, is nearly a half century—48 years, to be precise. Had he been properly advised, Alexander would have been informed that by rejecting the plea offer his sentencing exposure would very likely increase by a factor of four. Cf. Lafler, 566 U.S. at 166, 132 S.Ct. 1376 (finding that defendant was prejudiced where, inter alia, he received a sentence that was 3½ times more severe than he likely would have received by accepting the plea offer); Young v. Hutchings, 2021 WL 201477, at *6 (D. Nev. Jan. 20, 2021)(finding that the defendant was prejudiced where he received a sentence that was four times more severe than he would have faced if he had accepted the plea offer).

This immense disparity in potential sentences is put into sharp relief when considered in light of Alexander's age and life expectancy. Alexander was born on March 15, 1976, so he was 33 years old when he was sentenced. Because Colorado law requires

Alexander to serve 75% of his 64-year sentence (which is 48 years), he will not be eligible for parole, at the very earliest, until he is 81 years old. According to actuarial data compiled by the Social Security Administration, the average 33-year-old man alive in 2009 could expect to live 44 more years, four years less than the minimum 48-year sentence he would be required to serve before being eligible for parole. Actuarial Life Table: Period Life Table, 2009, Social Security.⁹ Thus, Alexander's current prison term is effectively a life sentence. See United States v. Maass, 153 F.3d 729, 1998 WL 458577, at *7 n.13 (10th Cir. 1998) ("Given that [the defendant] was 35 years old at the time of sentencing, a 51-year sentence is the functional equivalent of a life sentence.")

9 http://www.ssa.gov/OACT/STATS/table4c6.html

In contrast, if he had accepted the October 2008 plea offer, he would have been in custody for a maximum of 16 years, and would have regained his freedom before he turned 50 years old. There is manifestly a categorical difference between the de facto life sentence Alexander is serving, and the sentence he would have served had he accepted the plea offer of 16 years. See Graham v. Florida, 560 U.S. 48, 69-70, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), as modified (July 6, 2010) (noting, in the context of juvenile sentencing, that life without parole is "the second most severe penalty permitted by law," and it "shares some characteristics with death sentences that are shared by no other sentences"); United States v. Gaviria, 116 F.3d 1498, 1513 (D.C. Cir. 1997) (finding that petitioner would have likely accepted a plea offer and noting that "[a]fter all, fifteen to twenty-two years for a man in his mid-forties is significantly less than life imprisonment").

Because of his trial counsel's constitutionally deficient performance, Alexander was forced to decide whether to accept the October 2008 plea offer without knowing that, if convicted at trial, he risked quadrupling his sentence exposure and risked spending the rest of his life in prison. The Court finds the vast chasm between the sentence available to Alexander in the form of the October 2008 plea offer, and the actual sentence imposed upon him after his conviction at trial, constitutes compelling objective evidence that Alexander would have accepted the plea offer but for his counsel's deficient and erroneous advice. See United States v. Gordon, 156 F.3d 376, 381 (2d Cir. 1998) (the "great disparity" between the actual sentencing exposure of 327 months and the 120-month sentence exposure represented by the petitioner's attorney provides sufficient objective evidence to establish a reasonable probability that the petitioner would have accepted the plea offer); Satterlee v. Wolfenbarger, 374 F. Supp. 2d 562, 574 (E.D. Mich. 2005), aff'd, 453 F.3d 362 (6th Cir. 2006) (finding that "the large disparity" between a 20-30 year sentence and a 6-20 year sentence "could support a finding that there is a reasonable probability that petitioner would have accepted ... the plea offers that were allegedly made in this case").

The Court finds support for its view in the reasoning of other federal courts considering comparable circumstances. In Wanatee v. Ault, 259 F.3d 700, 703-04 (8th Cir. 2001), a decision cited favorably by the Tenth Circuit in Williams v. Jones, 571 F.3d 1086, 1091 (10th Cir. 2009), Wanatee and several other individuals assaulted a man, and a police officer saw Wanatee beating the victim with a tire iron. The man died shortly thereafter. An examination of the body revealed that a knife wound, rather than a blow with the tire iron, caused the man's death. "Immediately

after Wanatee's arrest, the state offered him an opportunity to plead guilty to second degree murder in exchange for his cooperation in the prosecution of the other assailants." The plea offer was only open for ten days. "Defense counsel explained the offer to Wanatee but did not advise him about the possible application of Iowa's felony murder rule to his case. In Iowa, any felonious assault may serve as the predicate felony in a felony murder conviction." A felony murder conviction carries a mandatory sentence of life imprisonment without eligibility for parole, while a second-degree murder conviction carries a sentence of fifty years with parole eligibility.

Wanatee rejected the plea deal and was convicted under Iowa's felony murder statute. The parties in that case did not dispute that during the ten-day period in which the plea offer was open, Wanatee's trial counsel possessed sufficient information to know that the felony murder rule encompassed Wanatee's conduct.

The court found that Wanatee had shown that there was a reasonable probability that he would have accepted the plea offer but for his counsel's errors. It reasoned:

The lack of proper advice colors every aspect of Wanatee's conduct prior to the expiration of the plea offer, and is therefore relevant to this prong of the analysis. Thus, "uncontroverted evidence from trial counsel himself that he did not inform Wanatee about the felony-murder rule" constitutes objective evidence that, with proper advice, there is a reasonable probability that Wanatee would have accepted the plea offer.

Wanatee v. Ault, 101 F. Supp. 2d 1189, 1205 (N.D. Iowa 2000), aff'd, 259 F.3d 700 (8th Cir. 2001).

Here, as in Wanatee, Juarez possessed more than enough information to know that Alexander could be subject to habitual criminal sentencing, which would have exposed his client to a sentence quadruple the length of the sentence offered by the prosecution, yet he inexplicably and tragically failed to inform him of that risk during the period the plea offer was open. Thus, as in Wanatee, Alexander's decision to reject the October 2008 offer was substantially influenced by the constitutionally deficient legal advice provided to him by his trial counsel.

In Brinson v. Nicholson, 2020 WL 4015325, at *1-2 (N.D. Ill. July 16, 2020), Brinson was charged with attempted murder for discharging a firearm at his ex-girlfriend's house. The state extended a plea offer requiring him to plead guilty in exchange for a 26-year sentence. Brinson's counsel advised him not to accept the plea, and did so without advising Brinson that due to his prior convictions, he was subject to Illinois's habitual criminal statute, which would require the judge to sentence him to a life sentence. The court found that [t]he wide disparity between the twenty-six-year plea and the mandatory life sentence alone [gave] rise to the inference that [Brinson] would have accepted a plea deal. (Id. at * 8 (quotations omitted).) In light of this objective corroborating evidence, the court credited Brinson's testimony that he would have accepted the plea offer had he been properly informed about the risks of going to trial, and the court concluded that there was "a reasonable probability that Brinson would have accepted the plea if he had known he faced a mandatory life sentence." (Id.)

The Court is persuaded by the reasoning and analysis in the Wanatee and Brinson decisions. If anything, Alexander's case is even stronger than Wanatee's and Brinson's cases, because the disparity in sentences is far greater: Wanatee had an offer of 50 years with the possibility of

parole, and Brinson had an offer for a 26-year sentence and received a life sentence without parole eligibility. In contrast, Alexander had an offer for a maximum 16-year sentence and instead received a de facto life sentence.

The record is also clear that Alexander was not categorically opposed to taking a plea deal. In fact, he had already pled guilty in several previous criminal proceedings resulting in custodial sentences. (ECF No. 22-2 at 14; ECF No. 23, Mar. 16, 2018, Hearing Tr. at 134-136.) Further, the CCA acknowledged that he considered pleading guilty in this case in August 2009, but "by that time ... the deal was gone." (ECF No. 22-2 at 19.)

For the foregoing reasons, the Court finds that Alexander has shown that there is a reasonable probability that, but for the constitutionally ineffective assistance of his trial counsel during plea negotiations, he would have accepted the October 2008 plea deal.

Reasonable Probability of the Remaining Strickland Prejudice Prong Requirements

In addition to showing that there is a reasonable probability that he would have accepted the offer, Alexander must show that the sentence under the terms of the plea offer would have been less severe than under the judgment of conviction imposed, the prosecution would not have withdrawn the offer in light of intervening circumstances, and the court would have accepted the terms of the offer. Lafler, 566 U.S. at 163-64, 132 S.Ct. 1376.

There can be zero question, of course, that that the 16-year sentence Alexander would have received under the terms of the October 2008 plea offer was, by a factor of four, less severe than the actual 64-year sentence he received.

Moreover, there is simply nothing in the record that would support any finding that the State would have withdrawn the plea offers in light of intervening circumstances. Too, and just as clearly, the record is completely bereft of any evidence which would undermine the reasonableness of a finding that the trial court would have approved the terms of the plea offer and accepted Alexander's plea. Indeed, criminal defense practices expert Vance testified at the Hearing that there was nothing about the facts of this particular prosecution which pointed to this being a no-plea case. (ECF No. 23, Apr. 3, 2018, Hearing Tr. at 22.) To that point, Vance also testified that in cases similar to this one, district judges in Adams County were amenable to working with prosecutors and defense attorneys who had agreed to a plea deal. (Id.)

For all these reasons, the Court finds that the requirements of the Strickland prejudice prong have been fully met in Alexander's case. More specifically, upon completion of its plenary de novo review, the Court finds that Alexander has made a showing sufficient to demonstrate a "reasonable probability" that he was materially prejudiced by the ineffective assistance of his trial counsel during plea negotiations, "a probability sufficient to undermine confidence in the outcome" of [his] case. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

As a consequence, the Court concludes and holds that Alexander has established that his Sixth Amendment right to the effective assistance of counsel during the plea negotiation phase of his criminal proceeding was violated. Petitioner's Claim Three is therefore granted.

c. Remedy

Following guidance set forth in Lafler, once "a defendant shows ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more

severe sentence," the court must address the question of "what constitutes an appropriate remedy." Lafler, 566 U.S. at 170, 132 S.Ct. 1376. "Sixth Amendment remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. Thus, a remedy must neutralize the taint of a constitutional violation while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution." Id. (internal quotation marks and citations omitted).

For the circumstances in which ineffective assistance of counsel has led to a defendant's prejudicial rejection of a plea offer, as is the case here, the Lafler court outlined the appropriate available remedies:

The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel's errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.

In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge's sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.

Id. at 170-71, 132 S.Ct. 1376 (internal citation omitted). Essentially, the goal of the appropriate remedy a court selects should be to put a defendant back in the position he or she would have been in had he accepted the plea offer in question.

The Court finds that the first category of injury considered by the Lafler is not present in the circumstances of this case, and therefore the first remedial option would not be appropriate. It is, of course, the second Lafler category of injury which Alexander has suffered. He rejected the October 2008 plea offer based on trial counsel's ineffective plea advice, he was convicted at trial on charges more serious than those to which he would have pled guilty, and the mandatory habitual criminal sentencing law applicable in Colorado criminal courts severely constrained the trial judge's sentencing discretion. Accordingly, following the Supreme Court's lead in Lafler, it is appropriate for this Court to undertake "to require the prosecution to reoffer the plea proposal." Id. at 171, 132 S.Ct. 1376. Yet, the task of fashioning a remedy for Alexander is complicated by the fact that the plea offers at issue were delivered orally and never reduced to writing. While Juarez is certain that the plea offers required Alexander to plead guilty to a class 4 felony, he does not recall any of the other specific terms which were included in these offers. (ECF No. 23, Mar. 16, 2018, Hearing Tr. at 18:13-19:5.) Illustrative of this lack of clarity of plea offer specifics (apart from the class 4 felony proposal from the prosecution) is the fact that Alexander recalls that the offer had a stipulated sentence, but Juarez recalls it having an open sentence. (Id. at 67:22; Id. at 121:17-21)

The Court finds that the terms of the plea offers cannot be determined with sufficient precision to fashion a remedy specifically contemplated in Lafler. Nonetheless, it remains the case that a federal court has broad discretion in conditioning a judgment granting habeas relief, Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987), and in doing so must consider the totality of the material facts presented. Key to appropriately exercising this discretion is the requirement that the Court remain mindful that "[t]he Sixth Amendment mandates that the State [or the government] bear the risk of constitutionally deficient assistance of counsel." United States v. Blaylock, 20 F.3d 1458, 1469 (9th Cir. 1994) (quoting Kimmelman, 477 U.S. at 379, 106 S.Ct. 2574).

Given the particular circumstances of this case, the Court finds that the only practical way to place Alexander in the position he would have been had he received adequate legal counsel during prior plea negotiations is to order Respondents to grant to him a new trial. Moreover, fully expecting Respondents and the Adams County prosecuting authorities to comply with this Order in good faith, the Court anticipates that during the course of this new proceeding Alexander will be presented with the opportunity to newly negotiate a plea agreement with the benefit of effective counsel. The Court will allow Respondents and Adams County prosecuting authorities 120 days from the date of this Order to fully comply with this directive, absent which Alexander must be released.

D. Claim Four: Proportionality of sentence

Alexander's fourth claim asserts that his 64-year sentence on the first degree assault conviction is grossly disproportionate to the crime, in violation of the Eighth Amendment. (ECF No. 1 at 19-22; ECF No. 42 at 29-30.)

1. CCA's Denial of the Claim

The CCA disagreed that Alexander's 64-year prison sentence was unconstitutional when compared to the gravity and seriousness of the predicate and triggering offenses.

IV. Proportionality Review

Mr. Alexander next contends that his sixty-four-year prison sentence for first degree assault is unconstitutional because the severity of the sentence is grossly disproportionate to the gravity and seriousness of the offenses. We disagree.

A. Legal Authority and Standard of Review

The Eighth Amendment to the United States Constitution prohibits the imposition of a sentence that is grossly disproportionate to the severity of the crime committed. Harmelin v. Michigan, 501 U.S. 957, 1001 [111 S.Ct. 2680, 115 L.Ed.2d 836] (1991) (Kennedy, J., concurring); Close v. People, 48 P.3d 528, 536 (Colo. 2002), abrogated on other

grounds by Wells-Yates v. People, 2019 CO 90M, ¶¶ 16-17 .

Upon request, a trial court must conduct an abbreviated proportionality review of a defendant's sentence. People v. Gee, 2015 COA 151, ¶ 57 ; see also People v. Foster, 2013 COA 85, ¶ 54 (if proportionality of a sentence is challenged on appeal, an appellate court conducts its own abbreviated proportionality review and remands only if an extended proportionality review is required).

An abbreviated proportionality review involves "a comparison of two sub-parts, the gravity of the offense and the harshness of the penalty, to discern whether an inference of gross disproportionality is raised." People v. Deroulet, 48 P.3d 520, 527 (Colo. 2002), abrogated on other grounds by Wells-Yates, ¶¶ 16-17. When reviewing the proportionality of a habitual criminal sentence, "[t]he court must scrutinize the triggering offense and the predicate offenses and determine whether in combination they are so lacking in gravity or seriousness so as to suggest that the sentence is unconstitutionally disproportionate to the crime, taking into account the defendant's eligibility for parole." Wells-Yates, ¶ 23; see also Foster, ¶ 56.

Some crimes have previously been designated "per se" grave or serious for purposes of a proportionality review. See Wells-Yates, ¶ 13 n.6; Close, 48 P.3d at 538. For these crimes, the "sentencing court may proceed directly to the second sub-part of an abbreviated proportionality review, a consideration of the harshness of the penalty." Close, 48 P.3d at 538; see also Wells-Yates, ¶ 13.

For crimes not considered per se grave or serious, "the determination of whether the crime is grave or serious depends on the facts and circumstances underlying the offense." People v. Hargrove, 2013 COA 165, ¶ 12 , abrogated on other grounds by Wells-Yates, ¶¶ 16-17. The gravity or seriousness of an offense can be determined by considering the "harm caused or threatened to the victim or society, and the culpability of the offender." Solem v. Helm, 463 U.S. 277, 292 [103 S.Ct. 3001, 77 L.Ed.2d 637] (1983). "[I]t is not necessary for each offense to be grave and serious for a court to conclude that the offenses taken together are grave and serious." People v. Strock, 252 P.3d 1148, 1158 (Colo. App. 2010).

When considering the harshness of the penalty, "a great deal of deference is due to legislative determinations regarding sentencing." Deroulet, 48 P.3d at 523. Accordingly, "in almost every case, the abbreviated proportionality review will result in a finding that the sentence is constitutionally proportionate, thereby preserving the primacy of the General Assembly in crafting sentencing schemes." Id. at 526. "Given this observation, an intermediate appellate court must affirm a habitual criminal sentence, without remanding for extended review, unless 'the felonies supporting the ... sentence are lacking in inherent gravity.'" Foster, ¶ 58 (quoting People v. Anaya, 894 P.2d 28, 32 (Colo. App. 1994)).

If an abbreviated proportionality review reveals no inference of gross disproportionality, no further analysis is required. Close, 48 P.3d at 542. But the case must be remanded for an extended proportionality review if the abbreviated proportionality review gives rise to an inference of gross disproportionality. Foster, ¶ 54; Strock, 252 P.3d at 1157. "[A]n extended proportionality review should compare the sentence at issue to (1) sentences for other crimes in the same jurisdiction and (2) sentences for the

same crime in other jurisdictions." Wells-Yates, ¶ 17.

We review a trial court's proportionality determination de novo. People v. Gaskins, 923 P.2d 292, 294 (Colo. App. 1996).

B. Analysis

In his motion, Mr. Alexander asserted that his triggering offense (first degree assault) was not grave and serious because he was convicted under a complicity theory, rather than as the principal. He also argued that certain mitigating circumstances surrounding his prior felony convictions should weigh against a finding that those offenses were grave and serious. He claimed that, compared to the gravity and seriousness of these offenses, his "de facto life sentence is an exceptional[ly] harsh punishment such that the sentence is unconstitutional and grossly disproportionate."

The postconviction court found Mr. Alexander's first degree assault conviction to be grave and serious because the victim "suffered serious bodily injury, including a complicated recovery and significant permanent scarring." The court also concluded that Mr. Alexander's prior convictions involved grave and serious offenses. Accordingly, the postconviction court found that Alexander's sixty-four-year sentence was not grossly disproportionate to his crimes. We discern no error in this determination.

We begin by noting that first degree assault, which requires a person to intentionally cause serious bodily injury to another person by use of a deadly weapon, see § 18-3-202(1)(a), is a per se grave and serious offense. See Wells-Yates, ¶ 63 ("[T]he designation of per se grave or serious for purposes of a proportionality review must be reserved for those rare crimes which, based on their statutory elements, necessarily involve grave or serious conduct."); see also Gee, ¶ 60 ("Because, by its nature, first degree assault involves violence or the potential for violence, we hold that it is a per se grave or serious offense."). This fact is not altered by a complicity theory of guilt, which requires that a complicitor have: "(1) the intent, in the commonly understood sense of desiring or having a purpose or design, to aid, abet, advise, or encourage the principal in his criminal act or conduct, and (2) an awareness of those circumstances attending the act or conduct he seeks to further that are necessary for commission of the offense in question." People v. Childress, 2015 CO 65M, ¶ 29 .

As well, we are convinced that the facts underlying Mr. Alexander's first degree assault conviction demonstrate that the offense was grave and serious. See Hargrove, ¶ 12. At some point during the incident, Mr. Alexander and his codefendant entered the tattoo parlor; the codefendant then emerged with Mr. Alexander's dog and gave a verbal command for the dog to attack the victim; and, after the attack, Mr. Alexander said "Bitch, you're lucky it was my dog and not my strap," which the victim believed meant a gun. The victim suffered several deep lacerations, received eighty-two stitches, underwent multiple surgical procedures, and suffered serious bodily injury in the form of tissue damage, permanent nerve damage, ongoing pain, and permanent scarring.

Despite Alexander's attempt to relitigate these facts, a jury found beyond a reasonable doubt that he was complicit in intentionally causing serious bodily injury to the victim by means of a deadly weapon. See § 18-1-603, C.R.S. 2019 (a person found guilty under the complicity theory is "legally accountable as principal"

for the criminal behavior of another).

Considering Mr. Alexander's culpability and the actual harm suffered by the victim, see Solem, 463 U.S. at 292 , we conclude that his first degree assault conviction was a grave and serious offense. See Close, 48 P.3d at 542 (the defendant's assault convictions were grave and serious where his victims suffered injuries, including a swollen nose, facial and head lacerations, and bruises, and required stitches); People v. Oldright, 2017 COA 91, ¶ 14 (The defendant's triggering first degree assault conviction was "a grave and serious offense because the legislature deems it a crime of violence and an extraordinary risk crime, [the defendant] used a deadly weapon to commit the crime, and the victim suffered serious bodily injury.").

Next, the predicate offenses underlying Mr. Alexander's habitual criminal adjudication included out-of-state convictions for conspiracy to commit robbery, attempted grand larceny, possession of a firearm by an ex-felon, and battery with substantial bodily harm.

We conclude that the postconviction court did not err by finding these crimes to be grave and serious offenses. See, e.g., Wells-Yates, ¶ 64 ("Robbery is a perfect example of the type of crime that is appropriately viewed as per se grave or serious."); Close, 48 P.3d at 538 ("[T]he crimes of burglary, attempted burglary, conspiracy to commit burglary, felony menacing, possession or sale of narcotic drugs, aggravated robbery, robbery, and accessory to first-degree murder are grave or serious."); Oldright, ¶ 14 (assault was a grave and serious offense where the victim suffered serious bodily injury); People v. Allen, 111 P.3d 518, 520 (Colo. App. 2004) (The defendant's out-of-state conviction for possession of a gun by a convicted felon was a grave and serious offense because "a convicted felon who possesses a firearm poses a substantial risk of harm to the public.").

Finally, we note that, even if not individually grave and serious, Mr. Alexander's criminal history demonstrates a persistent disrespect and disregard for the rule of law and social norms and, therefore, those convictions, when considered together, are not so lacking in gravity or seriousness. See People v. Gallegos, 226 P.3d 1112, 1119 (Colo. App. 2009); see also Wells-Yates, ¶ 23 ("[W]hen the proportionality of a habitual criminal sentence is challenged, the grave or serious inquiry includes consideration of the defendant's history of felony recidivism.").

Thus, viewing the triggering and predicate felony convictions together, we conclude that these offenses are not so lacking in gravity or seriousness to support a conclusion that his sixty-four year prison sentence gives rise to an inference of gross disproportionality. See Wells-Yates, ¶ 23; see also Valenzuela v. People, 856 P.2d 805, 810 (Colo. 1993) (mitigating factors, such as a defendant's age, are irrelevant to determining whether a punishment is constitutionally proportionate to the crime). Therefore, a remand for an extended proportionality review is not warranted. See Foster, ¶ 54; see also Wells-Yates, ¶ 21 ("[I]n habitual criminal cases ..., an abbreviated proportionality review will almost always yield a finding that the sentence is not unconstitutionally disproportionate, thereby protecting 'the primacy of the General Assembly in crafting sentencing schemes.'" (quoting Deroulet, 48 P.3d at 526)); Deroulet, 48 P.3d at 526 ("[I]n most instances the General Assembly's determinations regarding the sentencing of habitual criminals will result

in constitutionally proportionate sentences."); Strock, 252 P.3d at 1158 ("Where a triggering crime in a habitual criminal case is grave and serious, generally only an abbreviated proportionality review is required."); see also Rutter v. People, 2015 CO 71, ¶ 16 ("[I]n non-capital cases, courts will rarely conclude that a defendant's sentence is grossly disproportionate.").

(ECF No. 22-2 at 19-29.)

2. Application of § 2254

The Eighth Amendment "contains a narrow proportionality principle that applies to noncapital sentences." Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (quotes and citation omitted). "The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime." Id. at 23, 123 S.Ct. 1179; see also Lockyer v. Andrade, 538 U.S. 63, 72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) ("[O]ne governing legal principle emerges as 'clearly established' under § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years.").

A state legislature is not precluded from imposing increased punishment on recidivists in order to deter repeat offenders, and to separate them from society for an extended period of time. Ewing, 538 U.S. at 25-27, 123 S.Ct. 1179; see also Rummel v. Estelle, 445 U.S. 263, 285, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) ("[T]he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction."). Thus, a court's proportionality review of a habitual offender sentence must take into account the state legislature's legitimate goals in sentencing repeat offenders. See Ewing, 538 U.S. at 29, 123 S.Ct. 1179. State legislatures are afforded broad discretion to fashion a punishment that fits within the scope of the proportionality principle. Lockyer, 538 U.S. at 76, 123 S.Ct. 1166.

Successful Eighth Amendment gross proportionality challenges to non-capital sentences are "exceedingly rare." Harmelin, 501 U.S. at 963, 111 S.Ct. 2680; see also Lockyer, 538 U.S. at 77, 123 S.Ct. 1166 ("The gross disproportionality principle reserves a constitutional violation for only the extraordinary case."). The Supreme Court has only twice invalidated a non-capital criminal sentence under the Eighth Amendment. See Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (defendant sentenced to fifteen years in chains and hard labor for falsifying a public document); Solem v. Helm, 463 U.S. 277, 297, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (defendant sentenced to life imprisonment without parole after committing six nonviolent felonies including writing a bad $100-dollar check).

Multiple cases, however, illustrate that criminal penalties may be harsh, yet pass constitutional muster. Ewing, 538 U.S. at 25-27, 123 S.Ct. 1179 (upholding as constitutional defendant's sentence of 25 years to life where triggering offense was grand theft of three golf clubs valued at $399 each, when the defendant had been convicted previously of four serious violent felonies for three burglaries and a robbery); Rummel, 445 U.S. at 284-85, 100 S.Ct. 1133 (holding that it did not violate the Eighth Amendment for a state to sentence a three-time offender to life in prison with the possibility of parole under a recidivism statute, where the prior offenses were the fraudulent use of a credit card to obtain $80 worth of goods, a conviction for

passing a $28.36 forged check, and the triggering offense of felony theft for obtaining $120.75); Hutto v. Davis, 454 U.S. 370, 371, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (finding two consecutive terms of 20 years in prison for possession with intent to distribute nine ounces of marijuana and distribution of marijuana did not violate Eighth Amendment).

The Court concludes that, measured against these Supreme Court cases, the CCA's rejection of Alexander's Eighth Amendment proportionality challenge to his 64-year sentence was not unreasonable. Notably, a jury convicted Alexander of first degree assault involving a deadly weapon that resulted in serious injuries to the victim. Further, in considering sentences stemming from convictions under habitual criminal statutes like Colorado's, Alexander's predicate offenses can be considered. Ewing, 538 U.S. at 29, 123 S.Ct. 1179 ("the State's interest is not merely punishing the offense of conviction, or the 'triggering' offense: It is in addition the interest in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.") (cites, brackets, and quotes omitted). Alexander's prior felony convictions were for serious crimes, and they demonstrate, as the CCA found, "a persistent disrespect and disregard for the rule of law and social norms[.]" (ECF No. 22-2 at 26-27.) Alexander has therefore failed to demonstrate that the CCA's decision was one of those "extreme sentences that are grossly disproportionate to the crime" such that it meets the requirements of § 2254(d)(1). Ewing, 538 U.S. at 23, 123 S.Ct. 1179.

Finally, with respect to Claim Four, Alexander does not contend that the CCA's rejection of this claim was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(2). As a consequence, Claim Four will be denied.

E. Claim Five: Expert testimony

Alexander's final claim contends the trial court's admission of expert opinion testimony violated the Fourteenth Amendment's Due Process Clause. (ECF No. 1 at 23-24; ECF No. 42 at 30.) Specifically, Alexander maintains it was fundamentally unfair to allow the prosecution's dog training expert to opine that Nala "had some type of training" and "took commands," because the expert had never personally interacted with the dog. (Id.) The Court will again set forth the CCA's rejection of the claim, followed by a discussion of the application of § 2254 to these facts.

1. CCA's Denial of the Claim

IV. Expert Testimony

Alexander asserts that the trial court abused its discretion by admitting expert opinion testimony that Nala "took commands and was trained," because the expert had no personal knowledge of Nala's training. He also asserts that the evidence was not relevant and was unfairly prejudicial. We disagree.

A. Standard of Review

"[T]he standard of review pertaining to the admissibility of expert testimony is highly deferential. Trial courts are vested with broad discretion to determine the admissibility of expert testimony, and the exercise of that discretion will not be overturned unless manifestly erroneous." People v. Ramirez, 155 P.3d 371, 380 (Colo. 2007). Similarly, a trial court is afforded broad discretion in determining the relevance and potential prejudice of evidence, and we will not disturb its ruling absent an abuse of discretion. People v. Dunlap, 975 P.2d 723, 741 (Colo. 1999).

B. Relevant Facts

The prosecution introduced expert testimony of a dog trainer who specialized in training police and other dogs that were trained to attack on command. Prior to trial, the court limited the expert testimony to dog training generally. The court prohibited the expert from testifying that Alexander or Apodaca-Zambori trained Nala, or that Nala responded to their commands.

The expert's testimony at trial focused primarily on the general process of training dogs. The prosecution then asked the expert whether he was familiar with the facts in this case, and whether, in his opinion, he believed that Nala was trained. Over Alexander's objections, the expert responded that he was aware of the facts in this case, and that based on those facts, he would conclude that Nala "had some type of training," and "took commands."

C. Discussion

Alexander asserts that the trial court abused its discretion by allowing the expert's testimony that Nala was trained and took commands, because the expert had no personal knowledge about Nala, and therefore, his testimony was speculative and unreliable. We disagree.

CRE 702 allows an expert to testify regarding his or her expert opinion, when doing so would assist the trier of fact. Under CRE 703, an expert may apply his or her specialized knowledge to the facts presented at trial, and then testify regarding his or her opinion concerning those facts. People v. Valencia, 257 P.3d 1203, 1205 (Colo. App. 2011). It is not necessary that the expert have firsthand personal knowledge of the facts upon which he or she renders an opinion. See Stone v. Caroselli, 653 P.2d 754, 758 (Colo. App. 1982). Rather, an expert may provide an opinion based on the facts presented at trial, "either by means of a hypothetical question or through other evidence received at [a] hearing." Valencia, 257 P.3d at 1205. Here, the expert had not personally observed or evaluated Nala. However, he was an expert in dog training, with considerable experience with attack dogs. Accordingly, he could permissibly apply his knowledge to the facts presented at trial regarding Nala's attack of LF and others and give an opinion. Thus, the trial court did not abuse its discretion by allowing him to provide his opinion about whether Nala had received training and responded to commands.

Alexander further asserts that the expert opinion was not relevant, because it did not relate to whether Alexander intended to harm LF. However, the expert testimony made it less likely that Nala acted randomly or without a command. See CRE 401 (evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"). Accordingly, the evidence was relevant.

Alexander further contends that the expert testimony was unfairly prejudicial, because it led the jury to infer that Alexander had trained Nala, without any record evidence supporting that conclusion. See CRE 403 ("evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice"). We disagree.

The record supports the expert's conclusion that Nala had received training. Specifically, it contained eyewitness testimony that Apodaca-Zambori told Nala, "[G]et her," at which point Nala attacked LF. Based on this testimony, both the expert and the jury could reasonably conclude that Nala was trained

to attack on command. Further, the expert never opined that Alexander had trained Nala or was involved in her training.

Accordingly, the danger of unfair prejudice did not substantially outweigh its probative value, and thus, the trial court did not abuse its discretion by admitting the expert testimony.

(ECF No. 22-1 at 12-16.)

2. Application of § 2254

This claim contests a state court evidentiary ruling. State court decisions that rest on matters of state law are binding on a federal habeas court. Chapman v. LeMaster, 302 F.3d 1189, 1196 (10th Cir. 2002). As such, federal habeas corpus relief generally does not lie to review state law questions about the admissibility of evidence. See Estelle, 502 U.S. at 67-68, 112 S.Ct. 475. This substantial restraint on federal court review of state law evidentiary rulings bars review, for example, of the trial court's decision to allow the expert to opine on Nala taking commands from Apodaca-Zambori or Alexander, a ruling in seeming conflict with its pretrial Rule 702 ruling to the contrary. And while it very well may have ruled otherwise in the first instance, the Court is bound to accept the CCA's conclusion that the expert testimony was admissible under state law, unless Alexander establishes that the challenged evidentiary ruling rises to the level of a violation of the Due Process Clause.

In the context of evidentiary rulings, the Due Process Clause is violated only where the ruling violated a fundamental principle of justice. Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Federal habeas courts may only interfere with state court evidentiary rulings when the rulings in question are "so unduly prejudicial that it renders the trial fundamentally unfair[.]" See Lott v. Trammell, 705 F.3d 1167, 1190 (10th Cir. 2013) (quoting Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)); see also Tucker v. Makowski, 883 F.2d 877, 881 (10th Cir. 1989) (state court rulings on the admissibility of evidence are not questioned in federal habeas actions unless they "render the trial so fundamentally unfair as to constitute a denial of federal constitutional rights") (internal quotations marks and citations omitted).

The Court finds that the subject expert testimony was not so unduly prejudicial that it rendered the trial as a whole fundamentally unfair. As the CCA explained, the expert testimony was logically relevant because it made it less likely that Nala's attack was unintentional. Though unhelpful to Alexander's defense, he does not articulate any reason or caselaw to support the one-sentence assertion that the "testimony was unfair and highly prejudicial to [his] defense." (ECF No. 1 at 24.)

Moreover, Alexander does not cite a Supreme Court decision to demonstrate that the CCA's denial of this claim was contrary to, or an unreasonable application of, federal law. His reliance on Cone v. Bell, 556 U.S. 449, 457, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009), is misplaced. Cone wrestled with the issue of whether documents suppressed by the prosecution were material to the petitioner's capital sentencing proceedings—a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Unlike Cone, this claim involves expert testimony admitted over Alexander's objection, and not material evidence withheld by the prosecution. Cone is therefore inapposite.

Finally, Alexander does not argue that the CCA's decision on this evidentiary issue was based on an unreasonable determination of the facts in light of the evidence

presented. As a consequence the Court has no occasion to consider whether § 2254(d)(2) may be implicated by Claim Five. This final claim cannot therefore serve as a basis for habeas relief, and will be denied.

IV. CONCLUSION

For the foregoing reasons, the Court ORDERS as follows:

1. Petitioner James Henry Alexander's Application for Writ of Habeas Corpus (ECF No. 1) is GRANTED IN PART AND DENIED IN PART;

2. Petitioner's Application for Writ of Habeas Corpus is CONDITIONALLY GRANTED as to Claim Three as follows: Respondents SHALL RELEASE ALEXANDER FROM CUSTODY no later than 120 days from the date of this Order, unless prior thereto he is retried on the charges brought against him in Case No. 08CR1660 in the Adams County, Colorado District Court; and

3. The remaining claims in Petitioner's Application for Writ of Habeas Corpus—Claims One, Two, Four and Five—are DENIED.

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