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Acosta v. Raemisch

United States Court of Appeals, Tenth Circuit

December 15, 2017

GABRIEL ALEXANDER ACOSTA, Petitioner - Appellant,
RICK RAEMISCH, Executive Director, Colorado Department of Corrections; CYNTHIA COFFMAN, Attorney General, State of Colorado, Respondents - Appellees.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CV-02266-RPM)

          Anthony J. Shaheen (Christopher A. Chrisman and Jessica M. Schmidt with him on the briefs), Holland & Hart LLP, Denver, Colorado, for Petitioner - Appellant.

          Ryan A. Crane, Senior Assistant Attorney General, Criminal Appeals Section (Cynthia H. Coffman, Attorney General, with him on the brief), Denver, Colorado, for Respondents - Appellees.

          Before KELLY, PHILLIPS, and McHUGH, Circuit Judges.


         Petitioner-Appellant Gabriel Acosta and his girlfriend, Chante Dillon, killed their roommate, Kimberly Dotson, after Ms. Dotson wrecked their car. Mr. Acosta and Ms. Dillon duct-taped, beat, and suffocated Ms. Dotson to death, then bagged her body in trash bags and threw her in a dumpster. They were both charged with first-degree murder.

         Patricia Medina was the only eyewitness to the murder. Before Mr. Acosta's trial, Ms. Medina described the killing in a recorded statement to the police, in two criminal depositions at which she was cross-examined, and at Ms. Dillon's trial, where she was again subjected to cross-examination. But Ms. Medina was deemed unavailable to testify at Mr. Acosta's trial, so the transcripts of her testimony were read to the jury.

         Mr. Acosta was convicted in Adams County, Colorado of first-degree murder and sentenced to life without parole. The Colorado Court of Appeals (CCA) affirmed his conviction. Mr. Acosta then sought habeas relief in federal court under 28 U.S.C. § 2254. He claims he was denied his right to confront witnesses against him and to the assistance of counsel, both in violation of the Sixth Amendment. The district court denied relief. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm.

         I. BACKGROUND

         To place our analysis in context, we begin with a summary of (A) the pretrial proceedings, (B) the state-court trial, (C) Mr. Acosta's direct appeal, and (D) the district court's ruling on Mr. Acosta's petition.

         A. Pretrial Proceedings

         An information filed on April 23, 2004, in Adams County, Colorado, charged Mr. Acosta with first-degree murder for the slaying of Ms. Dotson. On April 28, 2004, Christopher Decker, an attorney with the Adams County Division of the State Public Defender's Office, appeared as counsel for Mr. Acosta.

         As trial neared, Ms. Medina failed to appear in response to subpoenas for two hearings. So, she was jailed. And pursuant to Colorado Rule of Criminal Procedure 15, the trial court ordered the taking of Ms. Medina's deposition to preserve her testimony for use at Mr. Acosta's and Ms. Dillon's trials in the event she failed to appear again. The court recognized that while taking a deposition in a criminal case is an extraordinary remedy, this is "a situation in which a witness has indicated her unwillingness to appear at trial."

         At Ms. Medina's deposition on December 15, 2004, she was cross-examined by Ms. Dillon's counsel, and when she was again deposed on December 22, 2004, she was cross-examined by Mr. Acosta's counsel. Ms. Medina's testimony provides the horrific details of how Mr. Acosta and Ms. Dillon hog-tied Ms. Dotson's hands and legs together and covered her mouth with duct tape; how they punched and kicked her to death; how they wrapped her body in trash bags; and how they discarded her body in a dumpster.

         After the depositions were completed, Ms. Medina's attorney moved for her release. The court granted the request on the condition that Ms. Medina post a $2, 500 personal recognizance bond and report to supervised release. Ms. Medina failed to report to supervised release, so a warrant for her arrest was issued on January 20, 2005. She was later arrested and kept in custody until she testified at Ms. Dillon's trial in March 2005. Ms. Dillon was convicted of manslaughter.

         Mr. Acosta's trial was scheduled to begin on Monday, April 4, 2005. At a hearing held on March 31, 2005, Mr. Decker advised the trial court that a non-waivable conflict requiring his withdrawal had arisen. The trial court accepted counsel's statement that he could not ethically disclose the conflict and thus granted his motion to withdraw as Mr. Acosta's counsel.

         The court then engaged in a colloquy with Mr. Acosta during which it gave him the choice of proceeding without counsel or of waiving his right to speedy trial to allow newly appointed counsel to prepare for trial-which the court concluded could not be done in the four days remaining before the scheduled trial date. Mr. Acosta waived speedy trial so he could be appointed new counsel, and his trial was rescheduled to begin on August 29, 2005.

         On April 6, 2005, Ms. Medina's counsel asked the trial court to release Ms. Medina because Mr. Acosta's trial had been rescheduled. The court stated: "As I have indicated before, I am not going to keep Ms. Medina in jail forever on this case. But at the same time, Ms. Medina, you know, every time I release you, you disappear on us. Ms. Medina, what are we going to do about this?"[1] In response, Ms. Medina's counsel stated that if Ms. Medina does not report, then the court "can put her back in jail." The court agreed that it would. It then asked whether Ms. Medina had a place to live in the meantime. Ms. Medina said she could stay with her brother. Satisfied with her response, the court released Ms. Medina on a $500 recognizance bond, ordered her to report for supervised release the next day, and stated that this would be "a test on both you and me to find out whether you're going to honor what I have to say." The court then assured Ms. Medina that the district attorney would provide her with transportation to the court to ensure her attendance at trial. Mr. Acosta was not present at the April 6th hearing. Nor was a lawyer present on his behalf. New counsel for Mr. Acosta entered their appearances on April 8, 2005.

         Ms. Medina did not report for supervised release the following day. Nor did she go to her brother's as she said she would. Instead, Ms. Medina stayed in a Denver motel for a night before leaving town. Upon returning to Denver, she had no permanent residence and bounced from one motel to another.

         An arrest warrant for Ms. Medina issued almost three months later on July 1, 2005. Despite some efforts to locate her-which are detailed below-she was not found before Mr. Acosta's trial. The trial court ruled that Ms. Medina was "unavailable" and allowed her deposition transcripts to be read to the jury. Ms. Medina was arrested in Denver on unrelated charges on September 1, 2005, the same day the transcripts were read to the jury. The Denver Sheriff informed the Adams County Sheriff of Ms. Medina's arrest by fax on September 2, 2005, and again on September 6, 2005. There is no indication anyone who participated in the Adams County investigation into Ms. Dotson's murder knew about Ms. Medina's arrest before September 7, 2005.

         B. State-Court Trial

         Mr. Acosta's trial began on August 29, 2005. The prosecution called four lay witnesses and eight law enforcement witnesses. Brenda Masters testified that Ms. Dotson came to her house the day before the murder. Ms. Dotson told Ms. Masters she was scared that Mr. Acosta was going to kill her because she had wrecked his car.

         Ben Medina met Mr. Acosta in jail.[2] Mr. Medina testified that Mr. Acosta told him he "killed some chick and threw her in a trash can" and the police "found his hand print and blood."

         Favian Acevedo testified that when he went to the apartment the day after Ms. Dotson was slain, Mr. Acosta and Ms. Dillon admitted they killed Ms. Dotson and said they needed help with the body. Mr. Acevedo also attested that he saw Ms. Dotson's body wrapped in black bags and that he witnessed Mr. Acosta and Ms. Dillon put the lifeless body in the trash.

         The prosecution also presented evidence that eight of Mr. Acosta's fingerprints and seven of his palm prints were on the trash bags in which Ms. Dotson's body was wrapped, and that four of his fingerprints were on a roll of tape that was used. Although Ms. Medina was unavailable to testify at trial, her deposition testimony featured prominently. The prosecution referenced her testimony during its opening statement, had her testimony read to the jury during its case-in-chief, and relied on her testimony during closing arguments to demonstrate Mr. Acosta was guilty of first- and second-degree murder. The jury convicted Mr. Acosta of first-degree murder and the court sentenced him to life without parole.

         C. Direct Appeal

         Mr. Acosta appealed the judgment of conviction, alleging numerous violations of the Sixth Amendment. As relevant here, Mr. Acosta maintained the use of Ms. Medina's deposition testimony at trial violated his Confrontation Clause rights because Ms. Medina was not actually unavailable. According to Mr. Acosta, the prosecution simply failed to put forth sufficient effort to find her before trial. He also argued that he was denied the right to counsel at two critical stages during his case: (a) on March 31, 2005, when he waived his right to a speedy trial, and (b) on April 6, 2005, when Ms. Medina was released from custody.

         First, the CCA held that the prosecution "engaged in good faith, reasonable efforts to produce [Ms. Medina] at trial, and that she was unavailable for Confrontation Clause purposes."

         Second, the CCA held that Mr. Acosta was not denied his right to counsel (a) at the March 31, 2005 hearing because the trial court adequately advised him of his rights; or (b) at the April 6, 2005 hearing because that hearing was a ministerial-not a critical-stage of the criminal proceeding and thus neither Mr. Acosta nor his counsel was required to be present.

         Additional details from the CCA's decision are provided below in connection with the legal issues presented.

         D. Federal District Court

         On September 8, 2016, Mr. Acosta filed his 28 U.S.C. § 2254 Petition for a Writ of Habeas Corpus. As he did before the CCA, Mr. Acosta argued he was denied the right to confront witnesses against him and to the assistance of counsel.

         The district court first ruled the hearings held on March 31 and April 6, 2005, were critical stages of the proceeding and therefore "the rulings of the [CCA] were unreasonable determinations of fact and unreasonable applications of the law." The court next concluded the CCA's determination that the prosecution engaged in good-faith efforts to produce Ms. Medina "is an unreasonable determination of the facts." But the court denied ...

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