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Newmiller v. Raemisch

United States Court of Appeals, Tenth Circuit

December 18, 2017

TODD NEWMILLER, 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. 1:15-CV-02461-RPM)

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

          Ryan 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.

          Before TYMKOVICH, Chief Judge, SEYMOUR, and McHUGH, Circuit Judges.

          McHUGH, Circuit Judge.

         The 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.

         Mr. 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 affirm.

         To 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.

         After 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.

         I. BACKGROUND

         A. Factual History

         Mr. Newmiller, his brother, Joel Newmiller, [1] 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). Id.

         "Both 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.

         The two 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."

         According 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.

         The 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.

         B. Trial

         Mr. 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.

         As 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.] Orgill.
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 clothes.

Id. at 461-62 (footnote omitted).

         The 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.

         As for 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.

         Dr. 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."

         Mr. 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.

         On 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 mistrial.

         But 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 a mistrial.

         In its 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.

         Mr. Newmiller was convicted of second-degree murder with a deadly weapon and sentenced to thirty-one years' imprisonment.

         C. State Post-Conviction Proceedings

         After 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).[2] 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. David Glaser.

         The 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 counsel.

         1. ...

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