from the United States District Court for the District of
Colorado (D.C. No. 1:14-CV-01565-RPM)
A. Crane, Assistant Attorney General (Cynthia H. Coffman,
Attorney General, with him on the briefs), Office of the
Attorney General, Criminal Appeals Section, Denver, Colorado,
K. Johnson, Johnson, Brennan & Klein, PLLC, Boulder,
Colorado, for Petitioner-Appellee.
HOLMES, MATHESON, and MORITZ, Circuit Judges.
HOLMES, Circuit Judge.
convicted Mark Ellis of five felony offenses and one
misdemeanor offense involving child sexual assault on his
adopted daughter, V.E. Child sexual assault allegations
against Mr. Ellis first arose during his contentious divorce
from V.E.'s mother. At trial, defense counsel Rowe
Stayton argued that Mr. Ellis had been falsely accused;
specifically, he contended that V.E.'s vengeful mother
was coaching her, and that V.E.'s sexual knowledge came
only from admitted sexual abuse by her older brother.
he was convicted, Mr. Ellis filed a motion for postconviction
relief in Colorado state district court. He alleged that Mr.
Stayton had been constitutionally ineffective for failing to
interview and/or call to testify (1) an expert forensic
psychologist who could testify about theories of family
dynamics and childhood memory, and (2) several lay witnesses
who could testify in particular about the Ellises' family
dynamics when the allegations arose. The state district court
denied relief. The Colorado Court of Appeals
("CCA") affirmed. Mr. Ellis never sought review of
his ineffective-assistance claim in the Colorado Supreme
Ellis, now serving an indeterminate life sentence in the
Colorado Department of Corrections, filed an application for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in
the United States District Court for the District of
Colorado. He alleged ineffective assistance of trial counsel,
among other claims. The federal district court determined
that Mr. Stayton had been constitutionally ineffective and
granted Mr. Ellis conditional habeas relief. First, the court
concluded that Mr. Ellis had not failed to exhaust state
remedies even though he never sought review of his
ineffective-assistance claim in the CSC. Then, after ruling
in Mr. Ellis's favor on the merits of his
ineffective-assistance claim, the district court ordered the
Colorado state respondents ("State") to retry Mr.
Ellis within ninety days or be forever barred from pursuing
further proceedings on the same charges.
State now appeals from the federal district court's grant
of habeas relief. The State argues that the district court
erred in (1) finding that Mr. Ellis exhausted state remedies;
(2) granting federal habeas relief on his
ineffective-assistance claim; and (3) barring the State from
retrying him, if they do not act to do so within ninety days.
Exercising jurisdiction under 28 U.S.C. § 1291, we
reverse the judgment granting conditional
habeas relief and remand with instructions
to enter judgment denying relief. As we explain below, we
conclude that Mr. Ellis adequately exhausted his
ineffective-assistance claim, but that the district court
erred in granting him conditional habeas relief on that
claim. Any question as to the propriety of the district
court's ninety-day retrial condition is effectively moot
because we conclude that the district court should not have
granted habeas relief in the first place. Therefore, we do
not reach this retrial issue.
foster child, began living with Mark and his then-wife, Kari
Ellis, when she was two years old. When she was seven years
old, in 1998, Mr. and Ms. Ellis adopted her. The sexual
assault of which Mr. Ellis was convicted occurred when V.E.
was approximately eight to ten years old, from 1999 to 2001.
2000, Kari Ellis filed for divorce after learning that her
husband was having an affair. During the contentious divorce
proceedings that ensued, V.E.'s older brother M.E. told
his mother (i.e., Ms. Ellis) that his father had
"screwed" V.E. Aplt.'s App. Vol. III, at 154.
After M.E. told Ms. Ellis this, she hid a tape-recorder in
her purse and asked V.E. whether "she had any secrets to
tell [her] about anybody." Id. at 158. V.E. did
not disclose any abuse. Because V.E. was not "telling
[Ms. Ellis] anything, " Ms. Ellis asked M.E. to
"talk to [V.E.] and tell her it's okay to be honest
with [Ms. Ellis]." Id. at 159. M.E. obliged and
talked to V.E. alone. Afterward, Ms. Ellis talked to V.E.
again, and this time, V.E. said "something about her dad
tying her to the bed, " "put[ting] a buzzer . . .
on her neck, " and "put[ting] his hands down her
pants a lot." Id. at 160. Ms. Ellis immediately
reported these statements to the police.
than six months after the police began investigating the
possible sexual assault on V.E., lab results revealed semen
on one of her blankets. Shortly thereafter, V.E. revealed for
the first time that M.E. also had been sexually assaulting
her. M.E. pleaded guilty to sexual assault on a child. He
later testified, at his father's trial, that he
"first had the idea [of sexually assaulting V.E.]
after she told [him] what [their] father had been doing to
her." Id. at 35 (M.E.'s Trial Test.).
time of Mr. Ellis's trial in 2002, Mr. Stayton had been
working as a criminal defense lawyer for nearly twenty years.
He specialized in child sexual assault cases and had handled
probably "a couple hundred" of them. Aplt.'s
App. Vol. VI, at 195, 197 (Stayton's Test. at
Postconviction Hr'g). He had also interviewed
"dozens, dozens of juries." Id.
months leading up to Mr. Ellis's trial, however, Mr.
Stayton "ha[d] a lot of things on [his] plate that
required [him] to be out of town." Id. at 277.
First, Mr. Stayton's mother shot herself, and although
she survived, her attempted suicide triggered a family fight
over custody of Mr. Stayton's quadriplegic sister. Then,
the month before Mr. Ellis's trial, Mr. Stayton's
wife filed for divorce. Finally, during the week before and
the week after Mr. Ellis's trial, Mr. Stayton was in
trial for other cases.
Ellis's trial, Mr. Stayton's theory of the case was
that Ms. Ellis "despise[d]" Mark Ellis and that she
"put this hatred over from her into the children."
Aplt.'s App. Vol. II, at 32 (Opening Statement). Mr.
Stayton presented this theory primarily through
cross-examination of state witnesses. For example, he
elicited from cross-examination of V.E. that she was angry at
her father, that she did not like him, and that she felt
closer to her mother. In addition, he elicited from
cross-examination of V.E.'s eldest sister, Elizabeth
Jefferson, that "[t]hese allegations have split the
family up, " and that while she "allied [her]self
with [their] mother, " her sister, Jessica Geer,
"allied herself with" their father. Aplt.'s
App. Vol. III, at 256 (Ms. Jefferson's Test.).
Furthermore, Mr. Stayton elicited from cross-examination of
M.E. that he was "probably one of the closest children
to" his mother, that he had conversations with his
mother about his parents' divorce, and that his mother
"was very hurt by the divorce." Aplt.'s App.
Vol. III, at 70, 71 (M.E.'s Test.). Mr. Stayton also
elicited that M.E. was "angry at [his father] for what
he was doing to [their] family, " that he
"dislike[d] [his] father a great deal, " and that
his sister, Jessica, "being close to her dad is the same
as [him] being close to [their] mom." Id. at
56, 74. And Mr. Stayton elicited on cross-examination from
both V.E. and M.E. that M.E. had been sexually assaulting
Stayton then called several witnesses for the defense. One
was a forensic scientist who testified that the amount of Mr.
Ellis's semen found on certain blankets and comforters in
the Ellises' house-the only physical evidence in the
case-was only "a small percentage of what would come
from a human ejaculation, " in "quantities that
could be transferred, for example, if ejaculate got onto
somebody's hands . . . and you picked up an item."
Aplt.'s App. Vol. IV, at 20 (Taylor's Trial Test.).
Notably, during one bench conference, the trial judge
observed that "[t]his is a very, very well fought case
on both sides." Aplt.'s App. Vol. III, at 252-53.
the jury convicted Mr. Ellis on all counts. On direct appeal,
the CCA affirmed the convictions. See People v.
Ellis, 148 P.3d 205 (Colo.App. 2006). The CSC
subsequently denied Mr. Ellis's petition for a writ of
Mr. Ellis filed a motion for postconviction relief in
Colorado state district court, alleging ineffective
assistance of counsel and arguing that newly-discovered
evidence warranted a new trial. Regarding ineffective
assistance-the only claim before us now-Mr. Ellis argued that
Mr. Stayton was constitutionally ineffective for failing to
consult and/or call an expert forensic psychologist to
testify about theories of family dynamics and childhood
memory; for failing to consult and/or call several lay
witnesses who could have supported the defense themes of
parental alienation, witness coaching, and collusion; and for
committing other trial errors including weak
cross-examination, mishandling of prejudicial evidence, and
failure to object to improper questioning.
the state district court held a three-day evidentiary hearing
on Mr. Ellis's postconviction claims. At the end of the
hearing, the court found that-other than "not [being]
persuaded by . . . the evidence that the victim has
affirmatively recanted her testimony"-it
"accept[ed] the testimony of the witnesses presented by
the defense as true." Aplt.'s App. Vol. I, at 268
(State Dist. Ct.'s Ruling & Order).
evidence presented by the defense at the postconviction
hearing-which the state district court accepted as
true-included Mr. Stayton's testimony. Mr. Stayton
testified that he "was adequately prepared for trial,
" that he "was all over the facts, " and that
he believed he had "adequately represented [his] client
at trial." Aplt.'s App. Vol. VI, at 287. Mr. Stayton
also testified that he had "attempted to establish
throughout [Mr. Ellis's] trial that Kari was really mad
at Mark, and that what happened is that [V.E.] had read her
mom, and she was more closely aligned with her mom. And ergo
we now have allegations." Id. at 226
(alterations in original). Mr. Stayton continued that child
sexual assault cases come down to whether "the jury
believes the child, " and he believed that at Mr.
Ellis's trial, V.E. presented well to the jury.
Id. at 229.
Colorado criminal defense attorney and trial-advocacy expert
Patrick Mulligan testified at the evidentiary hearing that
"the most pressing" problem with Mr. Stayton's
assistance was that he failed to consult and call an expert
forensic psychologist "who could have offered . . .
extremely important testimony." Aplt.'s App. Vol.
VI, at 104, 112. Mr. Mulligan explained that an expert could
have helped the defense prepare "to more appropriately
and thoroughly cross-examine prosecution witnesses, "
and could have "tak[en] the witness stand and
testif[ied] to the jury about some of the concepts that were
leading to family dynamics." Id. at 124-25. In
addition, expert forensic psychologist Phillip Esplin
testified that "this [was] a case that would have been
benefited from an expert in the field of forensic
psychology." Id., Vol. V, at 142.
asked why he did not call an expert forensic psychologist to
explain theories of family dynamics and childhood memory to
the jury, Mr. Stayton testified that he was "well enough
familiar with psychological principles [relevant to child
sexual assault] cases to prepare [his] cross-examination of
the witnesses, " "to prepare [his] presentation of
evidence, " and "to prepare both [his] opening
statements and closing arguments." Id., Vol.
VI, at 231-32. In fact, Mr. Stayton testified that he was so
familiar with both "parental alienation" theories
and "theories on primacy and recency and best
memory" that he "had taught . . . lectures around
the country with these theories" to "other defense
attorneys." Id. at 227, 232. He also testified
that he believed that he "had adequately brought out the
case, the parental alienation, " by eliciting in
cross-examination that V.E. was only accusing her father
because she was aligned with her mother. Id. at 230
("I gave them that reason [for V.E.'s accusations],
that was mom's, I had done that in [the state's] case
in chief."). In other words, Mr. Stayton "just felt
from [his] perception that they [i.e., the defense] were
making the points that [they] should." Id. at
229. And he testified that, if he had called such an expert,
he believed that the state would have called its own, and
that he did not want to expose the defense case to "a
lot of attack." Id. In this regard, Mr. Stayton
expressed the view that, if the defense is going to prevail
in child sexual assault cases, it must keep the focus on the
weaknesses in the prosecution's case. See id.
(opining that "if you don't win these cases as the
defense lawyer, in the prosecution case if you don't win
them over there, you're not going to win on your
Mr. Stayton testified that he felt that it "would be
insulting to the jury to try to point out the parental
alienation" because he believed that "it was in
front of them, and [he] didn't think you needed an expert
to tell them that[;] they either believed the child or they
don't." Id. at 230. He explained:
"[T]he theory . . . was easy, it's intuitive. You
don't have to have a master's degree to understand
that one parent can manipulate a child, you don't need
that." Id. at 233.
postconviction evidentiary hearing, Mr. Mulligan also
testified that Mr. Stayton was ineffective for failing to
call the Ellis children's special advocate in their
parents' divorce proceeding, Dr. Spiegle, and for failing
to introduce letters that Dr. Spiegle had submitted to the
divorce court "to support the idea that Kari Ellis was
trying to manipulate the children and, in fact, alienate
[them from] Mr. Ellis." Aplt.'s App. Vol. VI, at
108. Those letters primarily indicate that Ms. Ellis was
obstructing Mark Ellis's access to their children during
the divorce proceedings. When asked why he did not call Dr.
Spiegle after endorsing him as a witness, Mr. Stayton
responded that "honestly [he] felt that we were doing
okay, we didn't need that." Id. at 286.
Testifying that he "made decisions that [he] really
fe[lt] [were] trying to help [his] client, " Mr. Stayton
remarked that his decision not to call Dr. Spiegle was
"part [of his] trial strategy." Id. at
addition, V.E.'s eldest sister, Elizabeth Jefferson,
testified at the postconviction hearing. She testified that
she had perjured herself at trial. Specifically, she
testified that when asked at trial whether Ms. Ellis
"had been rehearsing and coaching [V.E.], " Ms.
Jefferson answered no-even though both she and her
mother had "been rehearsing and coaching [V.E.] from the
very first day this allegation came to light."
Aplt.'s App. Vol. V, at 223 (Ms. Jefferson's Test. at
Postconviction Hr'g) (alterations in original). Ms.
Jefferson also testified at the postconviction hearing that
at the time of trial, she "wanted to do everything [she]
possibly could to help get [her father] put away"
because she believed he "was a child molester."
Id. at 224. At the time, Ms. Jefferson said that her
knowledge of the molestation came entirely from her mother,
who told her things that Ms. Jefferson later discovered were
false. Id. at 224-25.
of V.E.'s sisters, Jessica Geer, also testified at the
postconviction hearing. Ms. Geer had not been called to
testify at trial. However, she testified at the
postconviction hearing that her mother had talked badly about
her father in front of her and her siblings, and that she
might have witnessed her mother and M.E. planting evidence
against her father. Specifically, Ms. Geer testified that she
saw her mother and M.E. "with Scotch tape . . . going
like this on the carpet of the truck [i.e., presumably,
pressing the adhesive portion of the tape to the carpet] on
the passenger side floorboard, " and that she later
learned "that there was an allegation of there being
some fiber evidence found in blankets." Id. at
242-43. Additionally, Ms. Geer testified that when she
expressed her belief that her father was innocent, her mother
"threw [her] out of the house, " refused to sign
documents that would have allowed her to continue attending
school, and attempted to obtain a restraining order against
her. Id. at 239-41 (Ms. Geer's Test.). Ms. Geer
further testified that her mother is "very cruel,
callous, " and recounted instances of her "being
abusive." Id. at 245. Ms. Geer noted that
"even prior to these allegations" against her
father, she and her mother "ha[d] an estranged
relationship." Id. at 254.
hearing all of the evidence, the state district court denied
Mr. Ellis's motion for postconviction relief. Regarding
Mr. Ellis's claim of ineffective assistance, the court
held that he had "fail[ed] to overcome the presumption
that sound trial strategy was used." Aplt.'s App.
Vol. I, at 273. And the court could not "reach the
conclusion that the result would have been different but for
trial counsel's deficient performance." Id.
Ellis appealed the denial of his motion for postconviction
relief to the CCA. The CCA affirmed. It held, as relevant
here, that the state district court had correctly concluded
that Mr. Stayton was not constitutionally ineffective. It
first reasoned that Mr. Stayton's failure to consult
and/or call an expert forensic psychologist was not deficient
because Mr. Stayton "was familiar with the psychological
concepts that an expert forensic psychologist would have
explained, " and "he elicited lay testimony at
trial about the complicated family dynamics and children
aligning with mother and against defendant, " and
because Mr. Stayton believed that if he called a forensic
psychologist expert, the State would call its own, and
"such conflicting expert testimony would have damaged
defendant's theory of the case." Id. at
290-91 (CCA's Op.). The CCA explained: "[B]ecause
trial counsel's decision not to utilize a forensic
psychologist was strategic, it was not constitutionally
deficient." Id. at 291.
also determined that Mr. Stayton's failure to consult
and/or call four additional witnesses-Ms. Jefferson, Ms.
Geer, Dr. Spiegle, and V.E.'s psychologist Dr. Long-did
not constitute constitutionally deficient performance.
Regarding Ms. Jefferson, the CCA reasoned that
"[a]lthough defendant contends that trial counsel should
have somehow discovered that [Ms. Jefferson] was lying at
trial, without more, we decline to hold that trial counsel
was deficient for failing to know of a witness's apparent
perjury." Id. at 292. Regarding Ms. Geer and
Dr. Spiegle, the CCA determined that their proposed testimony
"about the general conflict in the family" was
"brought . . . before the jury by eliciting testimony
about the conflict and resulting alignment from M.E. and [Ms.
Jefferson]." Id. And regarding Dr. Long, the
CCA concluded that Mr. Stayton's performance was not
deficient because (1) he "interviewed Dr. Long before
trial, " 2), "it [was] unclear from the record
whether Dr. Long was still treating V.E. at the time of the
sexual abuse, " and (3) "[t]he tactical decision
not to call an expert witness is within the discretion of
trial counsel." Id. at 293.
also rejected "Additional Alleged Deficiencies"
that Mr. Ellis had raised regarding Mr. Stayton's
performance. Namely, it found meritless Mr. Ellis's
arguments "that trial counsel's unspecified
'mishandling of Rule 404(b) evidence, his ineffective
cross-examination of prosecution witnesses, and his failures
to object to improper questioning by the prosecutor'
constituted deficient performance." Id.
Importantly, because the CCA concluded that Mr. Ellis had
"failed to establish deficient performance, " it
never reached the issue of whether Mr. Stayton's
performance was prejudicial. Id. at 294.
Ellis did not petition the CSC for certiorari review of the
denial of his motion for postconviction relief. Instead, in
2014, he filed a petition for a writ of habeas corpus in the
United States District Court for the District of Colorado,
alleging, inter alia, ineffective assistance of
trial counsel. Specifically, Mr. Ellis alleged that Mr.
Stayton's failures to consult and/or call an expert
forensic psychologist, Dr. Long, Dr. Spiegle, Ms. Jefferson,
and Ms. Geer were deficient; Mr. Stayton's weak
cross-examinations, mishandling of prejudicial evidence, and
failure to object to improper prosecution questioning were
deficient; and Mr. Stayton's deficient performance was
to both state postconviction court rulings, the federal
district court determined that Mr. Stayton's
representation was "glaringly deficient."
Aplt.'s App. Vol. I, at 181. The court decided that Mr.
Stayton: (1) delegated too many pre-trial responsibilities to
an investigator and delayed in testing DNA and fiber
evidence; (2) should have consulted and called an expert
forensic psychologist; and (3) should have consulted and/or
called "multiple members of the Ellis family and
psychological professionals who . . . had firsthand insights
into the severe dysfunction in the Ellis family and Kari
Ellis's behavior." Id. at 182.
federal district court then concluded that these deficiencies
were prejudicial. Because the CCA never reached the prejudice
prong, the federal district court reviewed de novo the state
district court's decision and determined that it had
applied Strickland unreasonably. The court
explained: "Because the evidence in the record did not
overwhelmingly support Ellis's guilt, . . . had the jury
heard an effective defense presentation of the physical
evidence in the case and the testimony of the witnesses
presented by the defense in the [postconviction] hearing, at
least one of the jurors would have had a reasonable doubt as
to Ellis's guilt." Id. at 186. Accordingly,
the court granted Mr. Ellis habeas relief, but conditioned it
on the State's decision not to retry him within ninety
response to this ruling, the State filed a motion for
additional findings, a motion to alter order and judgment,
and a motion to clarify. Regarding the motion for additional
findings, the district court issued an order stating that,
"Having now considered all of the relevant state court
record, this Court finds that there is additional
support for the ruling that Rowe Stayton's deficient
performance undermined confidence in the outcome of the Ellis
trial thereby meeting the prejudice prong of
Strickland." Id. at 246 (Order on Mot.
for Additional Findings) (emphasis added). Regarding the
motion to clarify, the court issued an order clarifying that
"the State of Colorado must re-try Mark Stephen Ellis on
the charges upon which he was convicted within 90 days from
the entry of the amended judgment, failing in which he shall
be released from custody on those convictions, which have
been vacated by this Court, and upon which no further
proceedings shall be pursued." Id. at 244
(Order Clarifying J.). The district court stayed enforcement
of its amended judgment through any appeal. The State timely
appeal, the State raises three claims. It alleges that the
district court: (1) erred in concluding that Mr. Ellis
exhausted state remedies on the ineffective-assistance claim;
(2) erred in granting conditional habeas relief on the
ineffective-assistance claim; and (3) abused its discretion
in barring retrial after ninety days. We conclude that Mr.
Ellis did exhaust his remedies, but that the district court
erred in granting him habeas relief on the
ineffective-assistance claim. These rulings render the third
issue-involving the propriety of the district court's
ninety-day retrial condition-effectively moot, so we do not
the State argues that Mr. Ellis failed to exhaust state
remedies because he never petitioned the CSC for
discretionary review of his ineffective-assistance claim. We
review de novo a district court's interpretation of a