from the United States District Court for the District of
Colorado (D.C. No. 1:15-CV-02461-RPM)
K. Johnson, Johnson, Brennan & Klein, PLLC, Boulder,
Colorado, for Petitioner -Appellant.
A. Crane, Senior Assistant Attorney General, Criminal Appeals
Section (Cynthia H. Coffman, Attorney General, with him on
the brief), Office of the Colorado Attorney General, Denver,
Colorado, for Respondents - Appellees.
TYMKOVICH, Chief Judge, SEYMOUR, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
genesis of this appeal is a murder committed during an
altercation outside a strip club in Colorado Springs,
Colorado. Petitioner Todd Newmiller and several of his
friends went to the club to celebrate Mr. Newmiller's
birthday. After leaving the club, they had a fight with
another group of men, during which Mr. Newmiller fatally
stabbed Anthony Madril in the heart. Mr. Newmiller was then
charged and convicted of second-degree murder, and sentenced
to thirty-one years' imprisonment. The Colorado Court of
Appeals (CCA) affirmed his conviction and sentence. The
Colorado Supreme Court denied certiorari review. Mr.
Newmiller later challenged the constitutionality of his
conviction under Colorado Rule of Criminal Procedure 35(c).
After an evidentiary hearing, the state post-conviction court
denied relief. The CCA affirmed the denial. And the Colorado
Supreme Court again denied certiorari review.
Newmiller next sought habeas relief in federal district court
pursuant to 28 U.S.C. § 2254. He argued his trial
counsel were ineffective in violation of the Sixth Amendment
because they failed to investigate, challenge, and rebut the
prosecution's expert medical testimony. The district
court ruled trial counsel's performance was deficient and
the CCA's conclusion to the contrary was an unreasonable
application of Strickland v. Washington, 466 U.S.
668 (1984). But the district court denied relief because Mr.
Newmiller failed to show counsel's performance was
prejudicial. Mr. Newmiller now appeals. Exercising
jurisdiction under 28 U.S.C. §§ 1291 and 2253, we
place our analysis in context, we begin with a robust
overview of the facts. We then provide relevant procedural
details, beginning with Mr. Newmiller's trial in state
court. Next, we summarize the proceedings before the state
post-conviction court, that court's ruling on Mr.
Newmiller's petition, and the CCA's decision on
appellate review. Last, we discuss the federal district
court's ruling denying habeas relief.
completing our review of the factual and procedural history,
we address the merits of the district court's denial of
habeas relief. Although we agree that Mr. Newmiller is not
entitled to relief, we extend appropriate deference to the
state court and thus leave undisturbed the CCA's
conclusion that trial counsel's performance was not
deficient. As a result, we do not reach the prejudice prong
of the ineffective-assistance-of-counsel inquiry on which the
district court's denial of relief was based.
Newmiller, his brother, Joel Newmiller,  and their
friends, Brad Orgill, Jason Melick, and Michael Lee (the
Newmiller group), went to a strip club in Colorado Springs to
celebrate Mr. Newmiller's birthday. See People v.
Newmiller, 338 P.3d 459, 461 (Colo.App. 2014). As
members of the Newmiller group were leaving the club, they
had an argument with another group of men also leaving the
venue. Id. The other group consisted of Mr. Madril,
Chisum Lopez, and Charles Schwartz (Mr. Madril's group).
groups eventually left the club in separate vehicles. About a
half block away, [Mr. Madril's] group stopped its pickup
truck in the middle of the street." Id. As the
Newmiller group's Jeep approached the pickup truck, Mr.
Newmiller jumped out and ran toward the truck. Joel then
parked the Jeep, and Mr. Orgill exited the vehicle, followed
by Mr. Melick, Mr. Lee, and Joel. Mr. Lee testified at trial
that at least one person from Mr. Madril's group had
exited the pickup truck and squared off to fight Mr.
Newmiller. But Mr. Lee could not identify who that person
was. He testified that he lost track of Mr. Newmiller early
in the confrontation.
groups confronted each other, and at some point Mr. Madril
was stabbed in the heart. Id. Mr. Madril and Mr.
Orgill also engaged in a fight lasting "30 seconds to a
minute." During that fight, Mr. Madril initially knocked
Mr. Orgill to the ground. But Mr. Madril soon became
"less . . . resistan[t]" and actually fell down
onto Mr. Orgill. Mr. Orgill testified that the fight
"was over really quick."
to the surviving participants, the entire incident lasted
somewhere between a minute and a half and two minutes.
Afterward, everyone fled the scene. Id. Mr.
Madril's group "headed to the hospital but pulled
over when the 911 dispatcher told them to wait for an
ambulance. [Mr. Madril] was transported to the hospital by
ambulance and pronounced dead on arrival." Id.
next day, Mr. Melick, a member of the Newmiller group,
"learned that someone had been killed in the same area
where the fight had occurred. He placed an anonymous phone
call to the police and named [Mr. Newmiller] as the
killer." Id. Police then arrested Mr.
Newmiller. Id. A search of Mr. Newmiller's
person uncovered a knife. Id. "Forensic testing
revealed a small amount of blood matching [Mr. Madril's]
blood on the blade of the knife." Id.
Newmiller was charged with and tried for second-degree
murder. Id. "He did not testify at trial, but
everyone else involved did. Although there were substantial
inconsistencies in the testimony, " the testimony and
evidence established that no one saw Mr. Newmiller stab Mr.
Madril or any of the participants with a weapon before or
during the altercation. Id. The evidence also
confirmed that Mr. Orgill fought Mr. Madril and established
that Mr. Newmiller verbally argued with Mr. Lopez.
Id. It was also "uncontested that [Mr.
Newmiller] stabbed one of the truck's tires right before
[Mr. Madril's] group drove away." Id.
summarized by the CCA,
The prosecution's theory of the case was that [Mr.
Newmiller] stabbed [Mr. Madril] at the very beginning of the
confrontation and [Mr. Madril] remained alive for several
minutes after he had been stabbed. The prosecution had to
establish that [Mr. Newmiller] stabbed [Mr. Madril] then
because other than during the first few seconds after [Mr.
Newmiller] and [Mr. Madril] left their respective vehicles,
someone from [Mr. Madril's] or [Mr. Newmiller's]
group saw either [Mr. Madril] or [Mr. Newmiller] at all
times, and no one saw them near each other. The prosecution
thus had to show that [Mr. Madril] lived for some time after
he was stabbed, during which time he fought with [Mr.]
In support of its theory, the prosecution offered testimony
from Joel Newmiller . . ., [Mr.] Melick, [Mr.] Orgill, and
[Mr.] Lee. Joel testified that when [Mr. Newmiller's]
group got back in the Jeep after the fight, he became upset
after seeing a cut on his brother's ([Mr.
Newmiller's]) face. Joel testified that [Mr. Newmiller]
attempted to calm him down by saying, "[d]on't worry
about it. I slashed their tire and I stabbed one of
them." [Mr.] Melick also testified that Joel started
"freaking out" because [Mr. Newmiller] had been
hit; in response, [Mr. Newmiller] said to Joel,
"[d]on't worry. Don't worry, I stabbed
him." [Mr.] Melick testified that [Mr. Newmiller] then
said to the other occupants of the vehicle, "I stabbed
the guy, okay?" and "[y]ou guys don't know
nothing about this, okay?"
[Mr.] Orgill and [Mr.] Lee testified that they did not hear
[Mr. Newmiller] say anything at that time about stabbing
anyone; however, they both testified that when the three of
them were at [Mr.] Orgill's house later that night, [Mr.
Newmiller] said something like he hoped he had not stabbed
anyone or he thought he might have stabbed someone. [Mr.]
Orgill, [Mr.] Lee, and [Mr. Newmiller] looked at [Mr.
Newmiller's] knife, but no blood was visible.
[Mr.] Orgill's clothes were covered heavily in blood.
[Mr. Newmiller] also had some blood on his clothing. As a
result, both [Mr.] Orgill and [Mr. Newmiller] burned their
Id. at 461-62 (footnote omitted).
prosecution also relied on the expert medical testimony of
Dr. George Hertner and Dr. Donald Ritchey. Dr. Hertner is an
emergency room physician who examined Mr. Madril when Mr.
Madril arrived dead at the hospital. See id. at 466.
Dr. Hertner testified he sees about one hundred trauma
patients per year and at least ten patients per year who have
a wound to the heart. Dr. Hertner explained death is not
always instantaneous when an individual suffers a wound to
the heart. And he averred that he has seen people stand and
walk around after suffering a stab wound to the chest. He
testified that it would not surprise him if a person could
stay on his feet for one or two minutes after being stabbed
in the heart, in part, due to adrenaline's ability to
mask the pain and temporarily compensate for blood loss.
Mr. Madril's chest wound, Dr. Hertner described it as a
"three-inch long laceration, " i.e., "a big
cut." He testified that he performed an ultrasound on
Mr. Madril that showed Mr. Madril "had a large amount of
blood in the left side of his chest and possibly around his
heart, " preventing him from having any cardiac or brain
activity. "Basically, " Dr. Hertner attested, Mr.
Madril "bled out into his chest." Dr. Hertner
explained that in this type of situation the blood inside the
chest pushes against the lung and prevents the lung from
expanding and the heart from beating. He further testified
that how rapidly someone perishes after suffering this type
of wound depends on several factors, including the size of
the wound, whether the person was active at the time he
suffered the wound, and the person's blood pressure. And
Dr. Hertner testified that the rate at which someone loses
blood may be influenced by the pericardium, which is the
"sac that surrounds the heart." Dr. Hertner
explained that when someone has a hole in his heart, he also
usually has a hole in his pericardium. In that case, the
heart bleeds into the space between the heart and the
pericardium, which may slow the flow of blood and thus the
rate at which the patient bleeds out. That said, Dr. Hertner
admitted he had "no idea" how long Mr. Madril lived
after being stabbed.
Ritchey is a forensic pathologist who performed Mr.
Madril's autopsy. Newmiller, 338 P.3d at 466.
Dr. Ritchey testified that Mr. Madril's wound entered the
apex of his heart and punctured a hole in his heart. He
further testified that two liters of blood had accumulated
within the thoracic cavity. And he testified that it was
"extremely likely" Mr. Madril experienced
"cardiac tamponade, " wherein blood fills in the
pericardium surrounding the heart and slows the flow of
blood. Dr. Ritchey explained that cardiac tamponade can
extend a person's life up to fifteen to twenty minutes
after being stabbed, as opposed to dying within one minute.
But Dr. Ritchey admitted he arrived at this conclusion based
"predominantly on the fact that [Mr. Madril] is known to
have lived for some period of time after he was
stabbed." And he acknowledged that he had "no way
of knowing" exactly how long Mr. Madril lived after
being stabbed, and that a person could die from such a wound
in anywhere from "a few seconds to a few minutes."
Newmiller's counsel, Deborah Grohs and Philip Tate, did
not cross-examine Dr. Ritchey about his cardiac tamponade
theory. Nor did they call a witness to rebut the testimony
provided by either Dr. Hertner or Dr. Ritchey.
March 8, 2016, the sixth day of witness examination, Ms.
Grohs informed the court that she had just received a
significant amount of discovery from the prosecution. She
stated that Mr. Tate's assistant received a call from the
prosecution on March 6, 2016, and then retrieved the
materials the next day. The materials included interviews
with witnesses who had already testified and with witnesses
who had not yet testified. The materials also included the
prosecution's interview with Dr. Andrew Berson, a report
from Dr. Hertner, and a report from Dr. Ritchey. After the
trial court berated the prosecutors for failing to produce
these materials in a timely fashion, Ms. Grohs moved for a
before the court ruled on the motion for a mistrial, it
became evident that the prosecution actually had made the
relevant discovery materials available by February 28, 2006,
the day jury selection started. The prosecution explained
that although they notified Mr. Tate's assistant that
afternoon, she did not collect the materials until March 7,
2016. After realizing her error, Ms. Grohs apologized to the
court for accusing the prosecution of wrongfully delaying
disclosure of the materials. The court denied the motion for
closing remarks, the prosecution argued that Mr. Madril was
able to fight Mr. Orgill after being stabbed due to a rush of
adrenaline. The prosecution stated:
You heard from the doctors that [a] stab wound with that
adrenalin running, he might not have even known or maybe he
did. Maybe he knew that he'd been stabbed, but he had no
time to do anything because as the defendant's running
past him, he's pushing him and Brad Orgill is right there
and Brad Orgill and Anthony Madril begin their fight. . . .
You heard from the witnesses that about midway through the
fight Anthony Madril started to slow, started to lag, started
to look tired, wasn't hitting back, fell down.
Well, folks, that was because he'd already been stabbed
in the heart. And as you heard from the doctors, after those
few seconds of adrenalin rush, after the heart begins to
leak, that's when he would start to fade, and that's
exactly what happened. He was able to stay on his feet, just
as the doctors told you, for a few minutes, a few seconds. He
was able to fight because the nature of the wound, there was
still heart - or, I'm sorry, still blood pumping through
his veins, pumping to his brain. Because of the fact that the
one ventricle was in front of the other, there was blood
still going to the aorta. You heard that from Dr. Ritchey.
You have the diagram where he explained that to you.
You heard from both the doctors, stab victims don't just
fall down the second it happens. They stay on their feet.
That's perfectly reasonable and it happens often. The
nature of that wound with the pericardium, is actually acting
as something of a tourniquet on Mr. Madril's heart. You
heard that too that most of the blood was going into the
chest cavity, some was coming out, but that was being
absorbed mostly by the shirt at first.
Newmiller was convicted of second-degree murder with a deadly
weapon and sentenced to thirty-one years' imprisonment.
State Post-Conviction Proceedings
the CCA affirmed Mr. Newmiller's conviction and sentence
on direct appeal, Mr. Newmiller sought post-conviction relief
in state court under Colorado Rule of Criminal Procedure
35(c). Mr. Newmiller claimed, among other things,
that his two trial counsel were ineffective under
Strickland v. Washington, 466 U.S. 668 (1984). He
argued trial counsel performed an insufficient pretrial
investigation into how long Mr. Madril could have lived after
being stabbed. If counsel had performed an adequate
investigation, Mr. Newmiller maintained, they would have
called Dr. Berson-whose opinions were known-to testify at
trial and retained an expert in emergency medicine like Dr.
state post-conviction court held a four-day evidentiary
hearing, during which the court received into evidence the
prosecution's report discussing its pretrial interview
with Dr. Berson. The court also heard testimony from Dr.
Glaser, Dr. Robert Bux, and Mr. Newmiller's trial