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Ellis v. Raemisch

United States Court of Appeals, Tenth Circuit

May 11, 2017

MARK STEPHEN ELLIS, Petitioner-Appellee,
v.
RICK RAEMISCH, Executive Director, Colorado Department of Corrections; CYNTHIA COFFMAN, Attorney General, State of Colorado, Respondents-Appellants.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:14-CV-01565-RPM)

          Ryan A. Crane, Assistant Attorney General (Cynthia H. Coffman, Attorney General, with him on the briefs), Office of the Attorney General, Criminal Appeals Section, Denver, Colorado, for Respondents-Appellants.

          Gail K. Johnson, Johnson, Brennan & Klein, PLLC, Boulder, Colorado, for Petitioner-Appellee.

          Before HOLMES, MATHESON, and MORITZ, Circuit Judges.

          HOLMES, Circuit Judge.

         A jury convicted Mark Ellis of five felony offenses and one misdemeanor offense involving child sexual assault on his adopted daughter, V.E. Child sexual assault allegations against Mr. Ellis first arose during his contentious divorce from V.E.'s mother. At trial, defense counsel Rowe Stayton argued that Mr. Ellis had been falsely accused; specifically, he contended that V.E.'s vengeful mother was coaching her, and that V.E.'s sexual knowledge came only from admitted sexual abuse by her older brother.

         After he was convicted, Mr. Ellis filed a motion for postconviction relief in Colorado state district court. He alleged that Mr. Stayton had been constitutionally ineffective for failing to interview and/or call to testify (1) an expert forensic psychologist who could testify about theories of family dynamics and childhood memory, and (2) several lay witnesses who could testify in particular about the Ellises' family dynamics when the allegations arose. The state district court denied relief. The Colorado Court of Appeals ("CCA") affirmed. Mr. Ellis never sought review of his ineffective-assistance claim in the Colorado Supreme Court ("CSC").

         Mr. Ellis, now serving an indeterminate life sentence in the Colorado Department of Corrections, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of Colorado. He alleged ineffective assistance of trial counsel, among other claims. The federal district court determined that Mr. Stayton had been constitutionally ineffective and granted Mr. Ellis conditional habeas relief. First, the court concluded that Mr. Ellis had not failed to exhaust state remedies even though he never sought review of his ineffective-assistance claim in the CSC. Then, after ruling in Mr. Ellis's favor on the merits of his ineffective-assistance claim, the district court ordered the Colorado state respondents ("State") to retry Mr. Ellis within ninety days or be forever barred from pursuing further proceedings on the same charges.

         The State now appeals from the federal district court's grant of habeas relief. The State argues that the district court erred in (1) finding that Mr. Ellis exhausted state remedies; (2) granting federal habeas relief on his ineffective-assistance claim; and (3) barring the State from retrying him, if they do not act to do so within ninety days. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the judgment granting conditional habeas relief and remand with instructions to enter judgment denying relief. As we explain below, we conclude that Mr. Ellis adequately exhausted his ineffective-assistance claim, but that the district court erred in granting him conditional habeas relief on that claim. Any question as to the propriety of the district court's ninety-day retrial condition is effectively moot because we conclude that the district court should not have granted habeas relief in the first place. Therefore, we do not reach this retrial issue.

         I

         A

         V.E., a foster child, began living with Mark and his then-wife, Kari Ellis, when she was two years old. When she was seven years old, in 1998, Mr. and Ms. Ellis adopted her. The sexual assault of which Mr. Ellis was convicted occurred when V.E. was approximately eight to ten years old, from 1999 to 2001.

         In 2000, Kari Ellis filed for divorce after learning that her husband was having an affair. During the contentious divorce proceedings that ensued, V.E.'s older brother M.E. told his mother (i.e., Ms. Ellis) that his father had "screwed" V.E. Aplt.'s App. Vol. III, at 154. After M.E. told Ms. Ellis this, she hid a tape-recorder in her purse and asked V.E. whether "she had any secrets to tell [her] about anybody." Id. at 158. V.E. did not disclose any abuse. Because V.E. was not "telling [Ms. Ellis] anything, " Ms. Ellis asked M.E. to "talk to [V.E.] and tell her it's okay to be honest with [Ms. Ellis]." Id. at 159. M.E. obliged and talked to V.E. alone. Afterward, Ms. Ellis talked to V.E. again, and this time, V.E. said "something about her dad tying her to the bed, " "put[ting] a buzzer[] . . . on her neck, " and "put[ting] his hands down her pants a lot." Id. at 160. Ms. Ellis immediately reported these statements to the police.

         More than six months after the police began investigating the possible sexual assault on V.E., lab results revealed semen on one of her blankets. Shortly thereafter, V.E. revealed for the first time that M.E. also had been sexually assaulting her. M.E. pleaded guilty to sexual assault on a child. He later testified, at his father's trial, that he "first had the idea[] [of sexually assaulting V.E.] after she told [him] what [their] father had been doing to her." Id. at 35 (M.E.'s Trial Test.).

         At the time of Mr. Ellis's trial in 2002, Mr. Stayton had been working as a criminal defense lawyer for nearly twenty years. He specialized in child sexual assault cases and had handled probably "a couple hundred" of them. Aplt.'s App. Vol. VI, at 195, 197 (Stayton's Test. at Postconviction Hr'g). He had also interviewed "dozens, dozens of juries." Id.

         In the months leading up to Mr. Ellis's trial, however, Mr. Stayton "ha[d] a lot of things on [his] plate that required [him] to be out of town." Id. at 277. First, Mr. Stayton's mother shot herself, and although she survived, her attempted suicide triggered a family fight over custody of Mr. Stayton's quadriplegic sister. Then, the month before Mr. Ellis's trial, Mr. Stayton's wife filed for divorce. Finally, during the week before and the week after Mr. Ellis's trial, Mr. Stayton was in trial for other cases.[1]

         At Mr. Ellis's trial, Mr. Stayton's theory of the case was that Ms. Ellis "despise[d]" Mark Ellis and that she "put this hatred over from her into the children." Aplt.'s App. Vol. II, at 32 (Opening Statement). Mr. Stayton presented this theory primarily through cross-examination of state witnesses. For example, he elicited from cross-examination of V.E. that she was angry at her father, that she did not like him, and that she felt closer to her mother. In addition, he elicited from cross-examination of V.E.'s eldest sister, Elizabeth Jefferson, that "[t]hese allegations have split the family up, " and that while she "allied [her]self with [their] mother, " her sister, Jessica Geer, "allied herself with" their father. Aplt.'s App. Vol. III, at 256 (Ms. Jefferson's Test.). Furthermore, Mr. Stayton elicited from cross-examination of M.E. that he was "probably one of the closest children to" his mother, that he had conversations with his mother about his parents' divorce, and that his mother "was very hurt by the divorce." Aplt.'s App. Vol. III, at 70, 71 (M.E.'s Test.). Mr. Stayton also elicited that M.E. was "angry at [his father] for what he was doing to [their] family, " that he "dislike[d] [his] father a great deal, " and that his sister, Jessica, "being close to her dad is the same as [him] being close to [their] mom." Id. at 56, 74. And Mr. Stayton elicited on cross-examination from both V.E. and M.E. that M.E. had been sexually assaulting V.E.

         Mr. Stayton then called several witnesses for the defense. One was a forensic scientist who testified that the amount of Mr. Ellis's semen found on certain blankets and comforters in the Ellises' house-the only physical evidence in the case-was only "a small percentage of what would come from a human ejaculation, " in "quantities that could be transferred, for example, if ejaculate got onto somebody's hands . . . and you picked up an item." Aplt.'s App. Vol. IV, at 20 (Taylor's Trial Test.). Notably, during one bench conference, the trial judge observed that "[t]his is a very, very well fought case on both sides." Aplt.'s App. Vol. III, at 252-53.

         Nevertheless, the jury convicted Mr. Ellis on all counts. On direct appeal, the CCA affirmed the convictions. See People v. Ellis, 148 P.3d 205 (Colo.App. 2006). The CSC subsequently denied Mr. Ellis's petition for a writ of certiorari.

         B

         In 2007 Mr. Ellis filed a motion for postconviction relief in Colorado state district court, alleging ineffective assistance of counsel and arguing that newly-discovered evidence warranted a new trial. Regarding ineffective assistance-the only claim before us now-Mr. Ellis argued that Mr. Stayton was constitutionally ineffective for failing to consult and/or call an expert forensic psychologist to testify about theories of family dynamics and childhood memory; for failing to consult and/or call several lay witnesses who could have supported the defense themes of parental alienation, witness coaching, and collusion; and for committing other trial errors including weak cross-examination, mishandling of prejudicial evidence, and failure to object to improper questioning.

         In 2011 the state district court held a three-day evidentiary hearing on Mr. Ellis's postconviction claims. At the end of the hearing, the court found that-other than "not [being] persuaded by . . . the evidence that the victim has affirmatively recanted her testimony"-it "accept[ed] the testimony of the witnesses presented by the defense as true." Aplt.'s App. Vol. I, at 268 (State Dist. Ct.'s Ruling & Order).

         The 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.

         Notably, Colorado criminal defense attorney and trial-advocacy expert Patrick Mulligan testified at the evidentiary hearing that "the most pressing" problem with Mr. Stayton's assistance was that he failed to consult and call an expert forensic psychologist "who could have offered . . . extremely important testimony." Aplt.'s App. Vol. VI, at 104, 112. Mr. Mulligan explained that an expert could have helped the defense prepare "to more appropriately and thoroughly cross-examine prosecution witnesses, " and could have "tak[en] the witness stand and testif[ied] to the jury about some of the concepts that were leading to family dynamics." Id. at 124-25. In addition, expert forensic psychologist Phillip Esplin testified that "this [was] a case that would have been benefited from an expert in the field of forensic psychology." Id., Vol. V, at 142.

         When asked why he did not call an expert forensic psychologist to explain theories of family dynamics and childhood memory to the jury, Mr. Stayton testified that he was "well enough familiar with psychological principles [relevant to child sexual assault] cases to prepare [his] cross-examination of the witnesses, " "to prepare [his] presentation of evidence, " and "to prepare both [his] opening statements and closing arguments." Id., Vol. VI, at 231-32. In fact, Mr. Stayton testified that he was so familiar with both "parental alienation" theories and "theories on primacy and recency and best memory" that he "had taught . . . lectures around the country with these theories" to "other defense attorneys." Id. at 227, 232. He also testified that he believed that he "had adequately brought out the case, the parental alienation, " by eliciting in cross-examination that V.E. was only accusing her father because she was aligned with her mother. Id. at 230 ("I gave them that reason [for V.E.'s accusations], that was mom's, I had done that in [the state's] case in chief."). In other words, Mr. Stayton "just felt from [his] perception that they [i.e., the defense] were making the points that [they] should." Id. at 229. And he testified that, if he had called such an expert, he believed that the state would have called its own, and that he did not want to expose the defense case to "a lot of attack." Id. In this regard, Mr. Stayton expressed the view that, if the defense is going to prevail in child sexual assault cases, it must keep the focus on the weaknesses in the prosecution's case. See id. (opining that "if you don't win these cases as the defense lawyer, in the prosecution case if you don't win them over there, you're not going to win on your side").

         Moreover, Mr. Stayton testified that he felt that it "would be insulting to the jury to try to point out the parental alienation" because he believed that "it was in front of them, and [he] didn't think you needed an expert to tell them that[;] they either believed the child or they don't." Id. at 230. He explained: "[T]he theory . . . was easy, it's intuitive. You don't have to have a master's degree to understand that one parent can manipulate a child, you don't need that." Id. at 233.

         At the postconviction evidentiary hearing, Mr. Mulligan also testified that Mr. Stayton was ineffective for failing to call the Ellis children's special advocate in their parents' divorce proceeding, Dr. Spiegle, and for failing to introduce letters that Dr. Spiegle had submitted to the divorce court "to support the idea that Kari Ellis was trying to manipulate the children and, in fact, alienate [them from] Mr. Ellis." Aplt.'s App. Vol. VI, at 108. Those letters primarily indicate that Ms. Ellis was obstructing Mark Ellis's access to their children during the divorce proceedings. When asked why he did not call Dr. Spiegle after endorsing him as a witness, Mr. Stayton responded that "honestly [he] felt that we were doing okay, we didn't need that." Id. at 286. Testifying that he "made decisions that [he] really fe[lt] [were] trying to help [his] client, " Mr. Stayton remarked that his decision not to call Dr. Spiegle was "part [of his] trial strategy." Id. at 287.

         In addition, V.E.'s eldest sister, Elizabeth Jefferson, testified at the postconviction hearing. She testified that she had perjured herself at trial. Specifically, she testified that when asked at trial whether Ms. Ellis "had been rehearsing and coaching [V.E.], " Ms. Jefferson answered no-even though both she and her mother had "been rehearsing and coaching [V.E.] from the very first day this allegation came to light." Aplt.'s App. Vol. V, at 223 (Ms. Jefferson's Test. at Postconviction Hr'g) (alterations in original). Ms. Jefferson also testified at the postconviction hearing that at the time of trial, she "wanted to do everything [she] possibly could to help get [her father] put away" because she believed he "was a child molester." Id. at 224. At the time, Ms. Jefferson said that her knowledge of the molestation came entirely from her mother, who told her things that Ms. Jefferson later discovered were false.[2] Id. at 224-25.

         Another of V.E.'s sisters, Jessica Geer, also testified at the postconviction hearing. Ms. Geer had not been called to testify at trial. However, she testified at the postconviction hearing that her mother had talked badly about her father in front of her and her siblings, and that she might have witnessed her mother and M.E. planting evidence against her father. Specifically, Ms. Geer testified that she saw her mother and M.E. "with Scotch tape . . . going like this on the carpet of the truck [i.e., presumably, pressing the adhesive portion of the tape to the carpet] on the passenger side floorboard, " and that she later learned "that there was an allegation of there being some fiber evidence found in blankets." Id. at 242-43. Additionally, Ms. Geer testified that when she expressed her belief that her father was innocent, her mother "threw [her] out of the house, " refused to sign documents that would have allowed her to continue attending school, and attempted to obtain a restraining order against her. Id. at 239-41 (Ms. Geer's Test.). Ms. Geer further testified that her mother is "very cruel, callous, " and recounted instances of her "being abusive." Id. at 245. Ms. Geer noted that "even prior to these allegations" against her father, she and her mother "ha[d] an estranged relationship." Id. at 254.

         After hearing all of the evidence, the state district court denied Mr. Ellis's motion for postconviction relief. Regarding Mr. Ellis's claim of ineffective assistance, the court held that he had "fail[ed] to overcome the presumption that sound trial strategy was used." Aplt.'s App. Vol. I, at 273. And the court could not "reach the conclusion that the result would have been different but for trial counsel's deficient performance." Id.

         Mr. Ellis appealed the denial of his motion for postconviction relief to the CCA. The CCA affirmed. It held, as relevant here, that the state district court had correctly concluded that Mr. Stayton was not constitutionally ineffective. It first reasoned that Mr. Stayton's failure to consult and/or call an expert forensic psychologist was not deficient because Mr. Stayton "was familiar with the psychological concepts that an expert forensic psychologist would have explained, " and "he elicited lay testimony at trial about the complicated family dynamics and children aligning with mother and against defendant, " and because Mr. Stayton believed that if he called a forensic psychologist expert, the State would call its own, and "such conflicting expert testimony would have damaged defendant's theory of the case." Id. at 290-91 (CCA's Op.). The CCA explained: "[B]ecause trial counsel's decision not to utilize a forensic psychologist was strategic, it was not constitutionally deficient." Id. at 291.

         The CCA also determined that Mr. Stayton's failure to consult and/or call four additional witnesses-Ms. Jefferson, Ms. Geer, Dr. Spiegle, and V.E.'s psychologist Dr. Long-did not constitute constitutionally deficient performance. Regarding Ms. Jefferson, the CCA reasoned that "[a]lthough defendant contends that trial counsel should have somehow discovered that [Ms. Jefferson] was lying at trial, without more, we decline to hold that trial counsel was deficient for failing to know of a witness's apparent perjury." Id. at 292. Regarding Ms. Geer and Dr. Spiegle, the CCA determined that their proposed testimony "about the general conflict in the family" was "brought . . . before the jury by eliciting testimony about the conflict and resulting alignment from M.E. and [Ms. Jefferson]." Id. And regarding Dr. Long, the CCA concluded that Mr. Stayton's performance was not deficient because (1) he "interviewed Dr. Long before trial, " 2), "it [was] unclear from the record whether Dr. Long was still treating V.E. at the time of the sexual abuse, " and (3) "[t]he tactical decision not to call an expert witness is within the discretion of trial counsel." Id. at 293.

         The CCA also rejected "Additional Alleged Deficiencies" that Mr. Ellis had raised regarding Mr. Stayton's performance. Namely, it found meritless Mr. Ellis's arguments "that trial counsel's unspecified 'mishandling of Rule 404(b) evidence, his ineffective cross-examination of prosecution witnesses, and his failures to object to improper questioning by the prosecutor' constituted deficient performance." Id. Importantly, because the CCA concluded that Mr. Ellis had "failed to establish deficient performance, " it never reached the issue of whether Mr. Stayton's performance was prejudicial. Id. at 294.

         Mr. Ellis did not petition the CSC for certiorari review of the denial of his motion for postconviction relief. Instead, in 2014, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Colorado, alleging, inter alia, ineffective assistance of trial counsel. Specifically, Mr. Ellis alleged that Mr. Stayton's failures to consult and/or call an expert forensic psychologist, Dr. Long, Dr. Spiegle, Ms. Jefferson, and Ms. Geer were deficient; Mr. Stayton's weak cross-examinations, mishandling of prejudicial evidence, and failure to object to improper prosecution questioning were deficient; and Mr. Stayton's deficient performance was prejudicial.

         Contrary to both state postconviction court rulings, the federal district court determined that Mr. Stayton's representation was "glaringly deficient." Aplt.'s App. Vol. I, at 181. The court decided that Mr. Stayton: (1) delegated too many pre-trial responsibilities to an investigator and delayed in testing DNA and fiber evidence; (2) should have consulted and called an expert forensic psychologist; and (3) should have consulted and/or called "multiple members of the Ellis family and psychological professionals who . . . had firsthand insights into the severe dysfunction in the Ellis family and Kari Ellis's behavior." Id. at 182.

         The federal district court then concluded that these deficiencies were prejudicial. Because the CCA never reached the prejudice prong, the federal district court reviewed de novo the state district court's decision and determined that it had applied Strickland unreasonably. The court explained: "Because the evidence in the record did not overwhelmingly support Ellis's guilt, . . . had the jury heard an effective defense presentation of the physical evidence in the case and the testimony of the witnesses presented by the defense in the [postconviction] hearing, at least one of the jurors would have had a reasonable doubt as to Ellis's guilt." Id. at 186. Accordingly, the court granted Mr. Ellis habeas relief, but conditioned it on the State's decision not to retry him within ninety days.

         In response to this ruling, the State filed a motion for additional findings, a motion to alter order and judgment, and a motion to clarify. Regarding the motion for additional findings, the district court issued an order stating that, "Having now considered all of the relevant state court record, this Court finds that there is additional support for the ruling that Rowe Stayton's deficient performance undermined confidence in the outcome of the Ellis trial thereby meeting the prejudice prong of Strickland." Id. at 246 (Order on Mot. for Additional Findings) (emphasis added). Regarding the motion to clarify, the court issued an order clarifying that "the State of Colorado must re-try Mark Stephen Ellis on the charges upon which he was convicted within 90 days from the entry of the amended judgment, failing in which he shall be released from custody on those convictions, which have been vacated by this Court, and upon which no further proceedings shall be pursued." Id. at 244 (Order Clarifying J.). The district court stayed enforcement of its amended judgment through any appeal. The State timely appealed.

         II

         On appeal, the State raises three claims. It alleges that the district court: (1) erred in concluding that Mr. Ellis exhausted state remedies on the ineffective-assistance claim; (2) erred in granting conditional habeas relief on the ineffective-assistance claim; and (3) abused its discretion in barring retrial after ninety days. We conclude that Mr. Ellis did exhaust his remedies, but that the district court erred in granting him habeas relief on the ineffective-assistance claim. These rulings render the third issue-involving the propriety of the district court's ninety-day retrial condition-effectively moot, so we do not reach it.

         A

         First, the State argues that Mr. Ellis failed to exhaust state remedies because he never petitioned the CSC for discretionary review of his ineffective-assistance claim. We review de novo a district court's interpretation of a federal ...


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