Respondents Brief — Gabriel Alexander Acosta, Petitioner v. Rick Raemisch, Executive Director, Colorado Department of Corrections, et al.

No. 17-9000

In the Supreme Court of the United States

GABRIEL ALEXANDER ACOSTA,

Petitioner,

V.

RICK RAEMISCH, EXECUTIVE DIRECTOR, COLORADO

DEPARTMENT OF CORRECTIONS, AND

CYNTHIA COFFMAN, ATTORNEY GENERAL, STATE OF

COLORADO,

Respondents.

On Petition for Writ of Certiorari to

The United States Court of Appeals for the Tenth Circuit

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

CYNTHIA H. COFFMAN L. ANDREW COOPER

Attorney General Deputy Attorney General

Counsel of Record

FREDERICK R. YARGER

Solicitor General RYAN A. CRANE

Senior Assistant Attorney General

GLENN E. ROPER

Deputy Solicitor General Colorado Department of Law

Ralph L. Carr Judicial Center

1300 Broadway, 10th Floor

Denver, CO 80203

Fred. Yarger@coag.gov

(720) 508-6000

Counsel for Respondents Rick Raemisch and Cynthia Coffman

QUESTIONS PRESENTED

Did the Tenth Circuit correctly conclude under AEDPA that Colorado’s state

courts reasonably applied this Court’s “good-faith, reasonable efforts” test in

determining that a missing witness was “unavailable” for purposes of the

Confrontation Clause?

Did the Tenth Circuit correctly deny habeas relief because even assuming the

state court unreasonably applied this Court’s case law in analyzing Petitioner’s

denial-of-counsel claims, any such error was harmless?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENT ED iisssiscsssvscesscsssvnaccsvcasncasassanasnnent casseaterseassweaeanswasiwesencccsineess 1

STATEMENT OF THE CAGE ................::c0000ccscccseese 00+ Su RbRUaR vou Crees ance 1

I. Facts and Trial Court Proceedings...........ccccccccccsesesseseeeceeeececaeeseeeececeesenuanannnes 1

TT. Direct Appeal .....ccccccccccccccccesssseeeecseccccceeseecccceseeecaeseeseenecesecaseenaueeeseceeesesaceaeeaeeens 5

ITI. Federal Habeas Proceedings sessissssasassscassingassasiaperassseanseng citer eareeaes 6

REASONS FOR DENYING THE PETITION .......... cc ccceccecesseseeceeeeeceeeeeeeeeeeeeeeees 9

I. This Court should deny certiorari on Petitioner’s Confrontation Clause

CIAL... eecccccccceessesnenceeeeeseneuessesecececeesaesceceeeeeessassaaeeeeeceeseseeeausnaeeeeeseseesguqanenseee® 9

A. This Court has recently explained the clear rule: a missing witness

may be deemed “unavailable” if “good-faith, reasonable efforts” have

been made to locate hePiseissssssscvsevsscceswanrescrientevaninaweansivasessaememennvsveresnsses 10

B. Following this Court’s decision in Hardy, lower courts do not need

further guidance on this 1SSUEC. ..........:.ccccescceceeeceeeeeseeeseeeeeeccesaaeeeneeeeeeeetes 13

C. The Tenth Circuit correctly denied relief on Petitioner’s

¢ CONErOMtAION CLAIM, sisnesccemensxeecEEONCEKERERRIUReRD ROR EEIEENTEEEEEROEN: 16

1. The CCA’s decision was not contrary to or an unreasonable

application of this Court’s case law. .............cccccccececeececeeseeseeeeeeeeneneanes 17

2. The CCA’s decision was not based on an unreasonable

determination of the facts; ssiccsccesemnsasccecsesaseraacencscuwceceeaeeieeeaeesise 19

II. This Court should deny certiorari on Petitioner’s denial-of-counsel

CLALMS. .......ccceccceesecccsneccceeseceeeeccseeceesnccceseeeeeeseceuseeeaesecenseeesuaeceeseeessaeeeeseneesagenees 21

A. There is no split of authority: jurisdictions agree that, unless

deprivation of counsel contaminates the entire proceeding, review

1s for harmless CLYOL. . sanesscnasecnness awenesaeews vases somas -nac1 HaeRETRKERNNRORERARORN NOMENA 22

B. In rejecting Petitioner’s denial-of-counsel claims, the Tenth Circuit

correctly concluded that any error was harmles...............ccccceeseseeeeeeeeee 25

1. March 31 Hearing ..........ccccccceeccececcceesseseeeeececceeecssensneeeececeeecseneusenseseeees 25

2. April 6 Hearing sissssssssssssesssasus sossasasnvoscsstaavsncosevauaesaseessancatamnenaanuauiarss 29

CONCLUSION wt scisasusarssavcnsocsesavavcesasscssstccccciaccusssavecsdlsvscasmavssiasecasssstasbsavasmenaseaueassss 32

il

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Cases

Arizona vu. Fulminante, 499 U.S. 279 (1991) . .csaasenwnyaeassnissnn ea cangascasnasaensanasevessewwenGeveeawes 7

Barber v. Page, 390 U.S. 719 (1968) ........... .csgesassproaarsmaasenesanmcesmnceueasasees 10, 11

Bourne v. Kansas, No. 05-3363, 2007 WL 2213554 (D. Kan. July 31, 2007) ............ 28

Brecht v. Abrahamson, 507 U.S. 619 (1998)... ceeccceeeeeeeeeeeneeeeeseeeseseees 7, 24, 31

Carter v. Bigelow, 787 F.3d 1269 (LOth Cir. 2015) 0.0... ceeceeeeeeeteseesseeeseeeteeeeeees 15

Carter v. Bigelow, No. 2:02-CV-326, 2012 WL 3964819

CDs WitaneSepote, TM, 2012) rene sre cern ects 1S HS SCE HOSE RRS RRNA I 15

Coleman v. Alabama, 399 U.S. 1 (1970) ....c.cceccecccceccceseeseseeeececceeecseueeneeeeceeaeaueneeees 22, 23

Cook v. McKune, 323 F.3d 825 (10th Cir. 2008) ....... co. cccccccceccecceeseseeeeceeceeeeeeneeeeeeees 13

Crawford v. Washington, 541 U.S. 36 (2004) 20.0... eeeeeseeeeeeeeeecneeensueseceeenennaeeees 10, 31

Davis v. Ayala, 135 8. Ct. 2187 (2015) scssssssauvacvensancaesnsne quacestechises GevsaransesseegewspsRanee------- 7

Ditch v. Grace, 479 F.3d 249 (8d Cir. 2007) ssossnssscsmnaciecescccsemsarsssesneeaususiestas.- 22, 23, 24

Fry v, Pliler, 551 U.S. 112 (2007)....................0.+ seaneissaveceuaiebseiecedssnedseansavaauinaies....... 6

Glebe v. Frost, 185 S. Ct. 429 (201 4)......... savsnusescuswsaaswsrwvasciaiscascaccuicnWecsecneceseeeede. sv... 7

Hardy v. Cross, 565 U.S. 65 (2011) 0... cccccccccsccsessssseeeccessdhatstinswasuosaanaewennbastss passim

Harrington v. Richter, 562 U.S. 86 (2011)... ee eeecececccceeceneneeeeeeseeeeeueeerseeseeesaaenneess 6

Hoffman v. Arave, 236 F.3d 523 (Oth Cir. 2001) .......ccccccccccecceseeeeeeeeeeeeeeeeeseeeereeeennaes 24

Hunterson v. Disabato, 308 F.3d 2386 (8d Cir. 2002) 00... ccccccceeccceeeeeeeceeceeeeteeeeeeeeees 21

Jones v. Cuomo, 254 F. App’x 6 (2d Cir. 2007) 0.2... ecccccccccecceceeeeeeeeeeeteeeeceeeeeeeseeesenenees 27

Martinez v. Sullivan, 881 F.2d 921 (10th Cir. 1989) .......cecceeeeececeseeeeceeneeeeeenenee 20

Mason v. Paramo, No. 16-CV-1176, 2018 WL 2287424

(S.D. Cal. May 18, 2018)............:ccccccceseescccceceeeesccseeeceeecosos «dbnilibe MM eiopnag ai eumaanteatauttstea 14

ili

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McCandless v. Vaughn, 172 F.3d 255 (8d Cir. 1999) ..... cc ecceeeeeeeeeeeeceeeeeeeeeeeenennens 13

Mermer v. McDowell, No. CV 16-9382, 2016 WL 5329623

(C.D. Cal. Aug. 15, 2016) 2.0.0... ceecceccsccossesecneenecsconaeo ieaieinglaba asietioninapabs eave tuiatnasasaies 14

Missouri v. Frye, 566 U.S. 134 (2012)......0...... 0.0... saseaasiiaiene reaalene aid aaretuescescuneaenites 22

Mitzel v. Tate, 267 F.3d 524 (6th Cir. QOL) veccccsseere bose cess cBURUGEOIGOUDEESITOGUTS «.0secccecceeeees 24

Montoya v. McDowell, No. CV 15-2042, 2015 WL 6125516

OEE, 15

Ohio v. Roberts, 448 U.S. 56 (1980) ...... cece ecccccccsecesceccseseeereeeseneseessenees 10, 11, 16, 18

Owsley v. Bowersox, 48 F. Supp. 2d 1195 (W.D. Mo. 1999) ....... cee eeeeeeeeeeeeee eee 24, 28

Parker v. Burt, 595 F. App'x 595 (6th Cir. 2015) ..... ccc ceeeeeeeeeeeeeeeeeeeeeeereeeeeees sesseeneee 28

People v. Arellano-Avila, 20 P.8d 1191 (Colo. 2001) «0.2... eeeseeeeeeeeeeeeeeenseeeeeeesneeeeees 31

People v. Murphy, 750 N.W.2d 582 (Mich. 2008) ............ccccccccseseeeeeeeeeeeeeeneeeeeeeeees 23, 27

Powell v. Grounds, No. SACV 10-111, 2012 WL 7985727

(C.D. Cal. Sept. 18, 2012) ...... sssscssaswsssuscavsvavassuscacansccosveasacuasosnvaewocesencaaaaceaswancawusions 28

Rothgery v. Gillespie Cty., 554 U.S. 191 (2008)....... cc ccccceseeeeeeeseeeeeceeeeseneeneeeeeeerens 22

Satterwhite v. Texas, 486 U.S. 249 (1988) ..... 0... cecceeeeeeeeeseeeeeeeeeeeeeeeeeeseeees 23, 24, 29

Strickland v. Washington, 466 U.S. 668 (1984) ........ cc cecccccceteeeeeceeneeeeeceeseseeeeueeeeenueees 24

United States v. Blum, 65 F.3d 1486 (8th Cir. 1995)... ceceeeeeneeeeeeeeneteeeeeeeenees 28

United States v. Chronic, 466 U.S. 648 (1984)... cccessceseseececcesenseeeeeeeeeenneeeeees 23, 24

United States v. Crowley, 529 F.2d 1066 (8d Cir. 1976)... cccceceeeceeseeeeeeeseeeeeneeseeeeees 27

United States v. Gutierrez-Arias, 299 F. App’x 593 (7th Cir. 2008) 2.0... 27

United States v. Lott, 4383 F.3d 718 (LOth Cir. 2006) sesssssvessassaccasnspansesersentasccasasiseavins 22

United States v. Mann, 590 F.2d 361 (1st Cir. 1978)... eecc ccc eecccccsseecccseeessseeeeees 13

United States v. Owen, 407 F.3d 222 (4th Cur. 2005)... ccceseesesceeeeeeeeeeseseeenees 22

1V

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United States v. Owens, 484 U.S. 554 (1988) .......... cacsssssccenssasusassvnadsacesvavessnacsmerenaneses 31

United States v. Yida, 498 F.3d 945 (Oth Cir. 2007 .....ccccceeeeeesecesseeeeseeeseeeceseseeeseeenes 13

Vaenl0..Jones.. 479) Hasd 292 (6th C1520 07 ) ncscosseeusccomcasencarmnensanemanxamnnsonemanmmnannemecnets 23

Villaverde v. Smith, No. 3:10-CV-00347, 2016 WL 1248721

(D. Nev. Mar. 28, 2016) ........ccccccccecccseseeeeeeessesseeeesnsneeeeenseneeereseneaeeeeeeeserseeeeeseesseneees 15

White v. Woodall, 572 U.S. 415 (2014)... cece ceceeessssenseeeeeeeeeeaneneeeesensnaneeeeerserensaees 16

Yarborough v. Alvarado, 541 U.S. 652 (2004)... ccc ceseeeecececeeeeeeeeeeesaeneeteneeeeeeenanes 13

Yarborough v. Keane, 101 F.3d 894 (2d Cir. 1996) ....... cece ceececceeeceeeeneeeeeceeeeeenaees 24

Young v. Grace, 525 F. App’x 153 (6d Cir. 2013) ssisvssscososevascvevesevenassvovweserunanpanranas 13, 14

Statutes

28 U.S.C. § 2254 sssscsscssnacususasawenenncacswcuuceesvesusecctscucweancsssuscesstaauausanccscaiaveamansesewauiss 6

28 U.S.C. § 22540) ooo... eeccccccceeseccccececensceceeeeeeesecsnensesseeeeeeeseaaaeeeeeesseneaneneersens 6, 19, 20, 21

yo OA Se O51 | (-) ee ene 6, 20

Colo. Rev. Stat. § 18-1-405 oo... cece cccccccecccceecceeceeeeeeeeeeeeeeeeeeeeececeeeeeeseueuseneeettesereetenenens 2

Rules

Colo. R. Crim. Po 15 oie eccccccceccceccecceceececeeeeececeeeeeeeeeeeeececeeeeesereceseceeeeeeeeeaeeenseeeeneeneeeenens 31

STATEMENT OF THE CASE

I. Facts and Trial Court Proceedings

Petitioner and his girlfriend, Chante Dillon, killed their roommate, Kimberly

Dotson, after she wrecked Petitioner’s car. Pet. App. A at 2-3, 6. They duct-taped,

beat, and suffocated Dotson to death, then wrapped her body in trash bags and

threw it into a dumpster. Jd. at 2-3. Petitioner’s fingerprints and palm prints were

found on the trash bags and the roll of tape used in the crime, and both Petitioner

and Dillon were charged with first-degree murder.

A woman named Patricia Medina was an eyewitness to the murder. However,

Medina was reluctant to testify, and after she twice failed to appear in response to

subpoenas, she was jailed until her testimony could be preserved. Jd. at 3. That

testimony was recorded in two videotaped criminal depositions, at the second of

which she was thoroughly cross-examined by Petitioner’s court-appointed counsel.

When Medina later missed another court date, she was jailed again until Dillon’s

trial, at which she testified in person. Id. at 4.1 By the time Dillon’s trial was over,

Medina had described the killing repeatedly: in a recorded statement to the police;

in the two criminal depositions; and at Dillon’s trial. Each time, she identified

Petitioner and Dillon as the killers. Id.

Petitioner’s trial was set to begin shortly after Dillon’s. But about a week

before trial, at a March 31, 2005 hearing, the public defender informed the trial

1 Dillon was convicted of manslaughter. Pet. App. A at 4.

court that his office would have to withdraw from representing Petitioner because a

non-waivable conflict of interest had arisen. Jd. The trial court accepted the

withdrawal and found that any appointed replacement counsel would need a

continuance to prepare for Petitioner’s trial. Jd. The court accordingly advised

Petitioner that, unless he wanted to proceed to trial pro se, he would have to waive

his statutory speedy trial right, which generally provides for a trial within six

months of arraignment and for which the time had nearly run.? Id. Petitioner

confirmed that he wanted counsel and waived his speedy trial right after a full

advisement.? Id.

Because Petitioner’s trial was obviously months away (and, in fact, did not

begin for five more months), counsel for Medina—who was still being held in jail to

secure her testimony—requested that the court release her from custody. Jd. At an

April 6, 2005 hearing, the trial judge discussed the issue with the prosecution,

Medina, and counsel for Medina. Neither Petitioner nor counsel for Petitioner were

present at the hearing. Id. at 5. The judge stated he was unwilling to indefinitely

jail Medina to secure her testimony, but warned her that she would again be jailed

if she failed to appear as ordered. Id. at 4-5. He set a $500 bond, ordered her to

report to pretrial supervision, confirmed she had somewhere to stay that night,

ordered her to return to court the next morning and at regular intervals to be

2 See Colo. Rev. Stat. § 18-1-405.

3 Petitioner’s “waiver” was not a complete waiver of the right, but was instead

treated as a defense request for a continuance, triggering a new six-month period.

See Colo. Rev. Stat. § 18-1-405(8).

determined, and ensured that the prosecution could provide her with transportation

to court. Id. at 5. Medina promised to comply, but fled the state for a time, then

intentionally evaded the police upon her return to Colorado. Id.; C.A. App. at 1599—

1602, 321, 335-86, 1953-55.

The prosecution was thus unable to locate Medina before Petitioner’s trial

and sought to introduce her deposition in lieu of live testimony. Pet. App. A at 5.

Petitioner argued that the deposition should be excluded because the police had not

tried hard enough to find Medina. Jd. at 15-16. The trial court rejected that

argument, after hearing the testimony of two police investigators describing all they

had done to try and find Medina for the past two months. Jd. They had checked

multiple former addresses of Medina; checked the post office for potential new

addresses; visited the areas where she was seen and known to frequent; spoke with

her parents; and spoke twice a week with her grandfather—“the one person from

[her] family” who was “cooperative with the police.” Jd. at 15-18. After hearing this

evidence, the trial court concluded that Medina was unavailable for purposes of the

Confrontation Clause and allowed her deposition to be introduced at Petitioner’s

trial.4 C.A. App. at 899.

By chance, the same day that her deposition transcript was read in

Petitioner’s trial, Medina was arrested on unrelated charges in Denver (a separate

judicial district from Adams County, where Petitioner was on trial). But neither the

4 The deposition was video-recorded, but the defense chose to read the transcript of

the deposition to the jurors rather than have them watch the video. Pet. App. B at

A; C.A. App. at 247, 374.

prosecution nor anyone who participated in the Dotson murder investigation knew

of Medina’s arrest until six more days had passed, by which time Petitioner’s jury

had already begun deliberations. Pet. App. A at 5-6. Upon learning of her arrest,

the prosecutor informed the court and defense counsel, and the defense requested a

mistrial. Id. The trial court denied the request. C.A. App. at 1557-59. After

deliberation, the jury found Petitioner guilty of first degree murder. Pet. App. A at

7. He was sentenced to life without the possibility of parole.

Petitioner’s Statement raises the issue of Medina’s supposed post-trial

recantation. See Pet. 5. The facts related to the recantation are these. About six

months after Petitioner’s conviction, the law firm representing Petitioner moved for

a new trial, saying Medina would now recant. C.A. App. at 1586; Pet. App. B at 36.

She would now accuse another man of the murder, they said, despite her consistent

testimony (including under-oath testimony) in her police interview, two depositions,

and Dillon’s trial. The trial court held a hearing to consider the motion, at which

Medina continually changed her testimony, repeatedly avoided questions on crossexamination, and was at a loss to explain why she would have falsely accused

Petitioner—who she had only met the night of the murder—if he did not actually

harm the victim. C.A. App. at 1628—76. It also came to light that Petitioner’s

defense team had met with Medina in jail sixteen times in the preceding month,

spending hours with her, “correcting” her on facts, and had offered to provide her

with counsel to handle any perjury charges against her. Jd. at 1631-33, 1641, 1667,

1706, 1728.

After the hearing, the trial court made explicit findings rejecting Medina’s

recantation. Jd. at 2781. The court concluded that “her testimony is motivated not

specifically by ... the accurate recitation of what transpired ... but in substantial

part based upon the sympathy now possessed by Medina for the Defendant.” Id. The

court therefore found that the “newly discovered evidence” of her recantation was

not credible.5 Jd. The court denied Petitioner’s motion for a new trial, and Petitioner

has not sought this Court’s review of that denial.

II. Direct Appeal

On direct appeal, the Colorado Court of Appeals (CCA) affirmed Petitioner’s

conviction. It rejected Petitioner’s argument that the police’s pretrial efforts to

locate Medina were insufficient to support a finding of unavailability. Pet. App. A at

15-17. It also rejected Petitioner’s claim that he was entitled to automatic reversal

because he was not represented (1) on March 31, when he waived his statutory

speedy trial right, and (2) on April 6, when Medina was released from jail. Id. at 25—

26.

The Colorado Supreme Court denied certiorari.®

5 Petitioner claims that the trial court “recognized” that Medina’s recantation was

“more consistent with the physical evidence.” Pet. 5. But what the court actually

said was that it assumed that if a new trial was granted, the defense would argue

that her revised testimony was more consistent with the physical evidence. C.A.

App. at 1766-67. And all this appears to mean is that, prior to trial, Medina said

there was blood all over the living room, but there really was not, and when asked

at the recantation hearing, she agreed there was not. Jd. at 1621.

6 Petitioner also unsuccessfully sought state postconviction relief on claims not at

issue here.

Ill. Federal Habeas Proceedings

Petitioner sought habeas relief in the United States District Court for the

District of Colorado under the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), 28 U.S.C. § 2254. He claimed that (1) Medina’s deposition should

not have been used at trial because she was not truly “unavailable” for

Confrontation Clause purposes and (2) Petitioner was denied his right to counsel at

critical stages of the proceedings.

This Court is well aware of AEDPA’s demanding standard. Because AEDPA

relief is a “guard against extreme malfunctions in the state criminal justice

systems, not a substitute for ordinary error correction through appeal,” Harrington

v. Richter, 562 U.S. 86, 102-08 (2011) (internal quotation marks omitted), relief is

precluded unless the underlying state-court decision was either “contrary to, or

involved an unreasonable application of, clearly established Federal law,”

§ 2254(d)(1), or “based on an unreasonable determination of the facts in light of the

evidence presented,” § 2254(d)(2). If one of these standards is met, the federal court

reviews the relevant claim of constitutional error de novo.’ Fry v. Pliler, 551 U.S.

112, 119-20 (2007).

If constitutional error is found on de novo review, habeas relief is still not

warranted unless the error in fact “had a substantial and injurious effect or

7 Even when de novo review applies to the legal claim, however, “a determination of

a factual issue made by a State court shall be presumed to be correct” and the

habeas petitioner still carries “the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

6

influence in determining the jury’s verdict.” Id. at 116-17 (quoting Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993)). This standard applies even to constitutional

trial errors which, on direct review, would require reversal unless the error was

harmless beyond a reasonable doubt. Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015).

But on habeas review, “[flor reasons of finality, comity, and federalism,” a

“reasonable possibility” of prejudice does not justify putting state courts to the

“arduous task” of conducting a retrial. Jd. Instead, a petitioner must establish that

he “was actually prejudiced by the error.” Jd. Although there is a small class of

errors that “defy analysis by ‘harmless-error’ standards,” Arizona v. Fulminante,

499 U.S. 279, 309 (1991), this is a “rare type of error.” Ayala, 185 S. Ct. at 2197

(quoting Glebe v. Frost, 135 S. Ct. 429, 430 (2014) (per curiam)). Structural error—

which requires automatic reversal—involves a defect in the “trial mechanism” that

infects the entire trial process, affecting “the framework within which the trial

proceeds” “from beginning to end.” Fulminante, 499 U.S. at 309-10; Brecht, 507

U.S. at 629-30; Pet. App. A at 23.

Applying these standards, the district court in Petitioner’s case denied relief.

Pet. App. B. The Tenth Circuit affirmed, rejecting Petitioner’s confrontation claim

on the basis that the CCA reasonably applied decisions from this Court holding

that, for a missing witness to be deemed “unavailable,” the police must have

exercised “good-faith, reasonable efforts” to find her. Pet. App. A at 17. The Tenth

Circuit further ruled that, assuming (without deciding) that the CCA unreasonably

applied this Court’s case law in resolving Petitioner’s denial-of-counsel claims, any

such errors were neither structural nor harmful. Id. at 27-29.

REASONS FOR DENYING THE PETITION

There are no compelling reasons for granting the Petition. Although

Petitioner asserts that lower courts need further guidance on the issues he raises,

he offers little to support that assertion. Instead, Petitioner’s primary contention is

that the lower courts reached the wrong result. That is not only an insufficient basis

for this Court’s review, but is incorrect. As to Petitioner’s confrontation claim, the

Tenth Circuit correctly applied AEDPA and ruled that the CCA did not

unreasonably apply the law in concluding that the prosecution exercised sufficient

efforts to locate Medina. Investigators visited her prior addresses, spoke repeatedly

with her only family member who was cooperative, and visited the location she was

commonly seen. Although, as this Court has emphasized, more can always have

been done, the applicable standard is simply a general requirement of good-faith,

reasonable efforts. And that standard was satisfied here. As for Petitioner’s denialof-counsel claim, the Tenth Circuit correctly concluded that any error was harmless.

The absence of counsel for Petitioner at the March 31 and April 6 hearings had no

practical effect on what transpired and, in any event, did not have a substantial and

injurious effect on Petitioner’s guilty verdict.

I. This Court should deny certiorari on Petitioner’s

Confrontation Clause claim.

Contrary to Petitioner’s argument, proper application of the Confrontation

Clause under AEDPA is clear. Lower courts are not in need of clarification on this

topic. And the Tenth Circuit’s decision was correct.

A. This Court has recently explained the clear rule: a

missing witness may be deemed “unavailable” if

“sood-faith, reasonable efforts” have been made to

locate her.

The Confrontation Clause allows the admission of testimonial hearsay

against a defendant if (1) the declarant is “unavailable” at trial and (2) the

defendant had a prior opportunity for cross-examination. Crawford v. Washington,

541 U.S. 36, 59 (2004).8

In the recent case of Hardy v. Cross, 565 U.S. 65, 69-70 (2011) (per curiam),

this Court identified two prior cases that clearly establish the law for AEDPA

review of unavailability claims like the one here: Ohio v. Roberts, 448 U.S. 56

(1980), and Barber v. Page, 390 U.S. 719 (1968).° As noted in Roberts, “[t]he

ultimate question is whether the witness is unavailable despite good-faith efforts

undertaken prior to trial to locate and present that witness.” 448 U.S. at 74. And

these cases confirm that “[t]he lengths to which the prosecution must go to produce

a witness” is simply “a question of reasonableness.” Hardy, 565 U.S. at 70 (quoting

Roberts, 448 U.S. at 74). When a defendant after-the-fact suggests additional efforts

that could have been taken to locate a witness, but those efforts are unlikely to have

succeeded, that weighs against the notion that “reasonableness required their

execution.” Jd. (quoting Roberts, 448 U.S. at 76).

8 Petitioner challenges only Medina’s unavailability, not whether he had a prior

opportunity to cross-examine her.

9 Because Hardy had not been decided at the time of the CCA’s decision, it is not

itself the “clearly established” law against which the CCA’s decision is judged.

Rather, it is relevant because it reflects this Court’s application of AEDPA to a pre-

Hardy state court decision.

10

To illustrate the rule, this Court in Hardy reviewed the facts of Barber and

Roberts. In Barber, this Court had ruled that an imprisoned witness was not

unavailable. There, the prosecution knew exactly where the witness was—in federal

prison. And all the state had to do to produce him was obtain a standard writ for his

transfer. The prosecution’s failure to do even that amounted to making “absolutely

no effort to obtain [his] presence.” Id. at 69-70 (quoting Barber, 390 U.S. at 723). In

other words, the witness was not properly considered “unavailable” because the

prosecution could have but failed to have him transferred to court.

By contrast, in Roberts the prosecution’s “duty of good-faith effort” was met.

The prosecution discharged that duty by serving subpoenas at the witness’s lastknown address and mother’s home and by confirming that the mother did not know

how to contact the witness and believed she had left the state. Roberts, 448 U.S. at

75-76. This was sufficient, this Court explained, even though the prosecution also

knew that, several months previously, a social worker had called the mother from

San Francisco because the daughter had applied for government assistance there.

Hardy, 565 U.S. at 70. This Court explicitly recognized that the prosecution could

have done much more—for example, “locate by telephone the San Francisco social

worker,” Roberts, 448 U.S. at 75, presumably to obtain the address on the

application or ask the social worker to contact the witness. And the prosecution

“might have undertaken other steps.” Jd. But the Confrontation Clause did not

require those steps for unavailability. Id. “One, in hindsight, may always think of

other things” that could have been done. Id.

11

After explaining the clearly established law, this Court in Hardy reversed the

Seventh Circuit’s grant of habeas relief. In that case, the prosecution’s investigators

had visited and called the witness’s parents and checked with local hospitals and

several government agencies. 565 U.S. at 67. But they had failed to also contact

(1) the witness’s boyfriend, (2) her friends in the area, and (3) the school she last

attended. Jd. at 71. And despite knowing the witness was reluctant to testify, she

was not subpoenaed. Id. The Seventh Circuit concluded that these failings showed

that the prosecution’s efforts were insufficient. However, this Court held that the

Seventh Circuit was wrong. For one, the record did not establish that the

prosecution should have thought that the boyfriend, friends, or school actually had

information about the witness’s current whereabouts. Jd. And as for the subpoena,

“good faith” and “reasonableness” are not a constitutional mandate that the

prosecution subpoena all reluctant witnesses. If a witness would risk the

defendant’s acquittal out of fear, it was doubtful she would have come to court

simply because a subpoena was issued. Jd. And “more to the point,” this Court in

Hardy emphasized that AEDPA’s standard of review precluded relief. Id. at 72.

That “deferential standard” does not “permit a federal court to overturn a state

court’s decision ... merely because the federal court identifies additional steps that

might have been taken.” Id.

In Petitioner’s case, the Tenth Circuit recognized that Hardy had identified

Roberts and Barber as the clearly established law for AEDPA cases involving

unavailable witnesses. Pet. App. A at 12. And because the essential requirement of

12

Roberts and Barber—a “good-faith, reasonable” effort to locate witnesses—is general

in nature, state courts therefore must be afforded substantial “leeway” in applying

the rule. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“The more general

the rule, the more leeway courts have in reaching outcomes in case-by-case

determinations.”).

B. Following this Court’s decision in Hardy, lower

courts do not need further guidance on this issue.

Although this Court in Hardy answered the precise legal question Petitioner

presents here, he nonetheless contends that “lower courts continue to issue

inconsistent, and conflicting opinions regarding ‘reasonable’ ‘good faith efforts,’ and

299

‘unavailability.” Pet. 14. He provides no examples of conflicting opinions post-

Hardy; the opinions he cites as conflicting are all pre-Hardy decisions. See Pet. 16

(citing United States v. Yida, 498 F.3d 945, 950 (9th Cir. 2007); Cook v. McKune,

323 F.3d 825, 835-36 (10th Cir. 2003); McCandless v. Vaughn, 172 F.3d 255 (8d

Cir. 1999); United States v. Mann, 590 F.2d 361, 368 (1st Cir. 1978)). They thus

provide no basis for concluding that Hardy was inadequate to give the guidance

lower courts needed.

And post-Hardy opinions confirm that this Court successfully provided

sufficient guidance, illustrating for lower courts how the general “good-faith,

reasonable efforts” test for unavailability applies in the context of AEDPA’s

deferential standard. In 20138, for example, the Third Circuit applied Hardy in

Young v. Grace, 525 F. App’x 153 (8d Cir. 2013) (unpublished), and found no basis

for disturbing a state court’s unavailability ruling. As the Tenth Circuit did here,

13

the Third Circuit concluded that the state court in that case did not unreasonably

apply the “good-faith, reasonable efforts” test where the police had made standard

search efforts. The defendant raised other things the police could have done,

claiming that “the detective delayed in her investigation, failed to contact [the

witness] when he was incarcerated, failed to review the files containing [the

witness]’s bail records, failed to contact [the witness]’s relatives other than his

sister, and failed to contact [the witness] during his court appearances.” Id. at 159.

Yet the Third Circuit denied habeas relief, pointing out that the state court’s ruling

was “entitled to AEDPA deference” and holding that the state court’s finding of

“good-faith efforts” was not unreasonable. Jd.

District court cases post-Hardy have also been consistent with one another

and with the Tenth Circuit’s opinion here. See, e.g., Mason v. Paramo, No. 16-CV-

1176, 2018 WL 2287424, at *6 (S.D. Cal. May 18, 2018) (upholding state court

unavailability finding where investigator “repeatedly tried to reach [the witness]

using the means he had previously used” and recognizing Hardy's holding that “the

399

prosecution is not required to ‘exhaust every avenue of inquiry”), appeal pending,

No. 18—55803 (9th Cir. filed Jun. 18, 2018); Mermer v. McDowell, No. CV 16-932,

2016 WL 5829623, at *22 (C.D. Cal. Aug. 15, 2016) (unpublished) (upholding state

court unavailability finding because, despite the existence of “other potential

avenues’ to investigate, witness had reportedly “gone into hiding” and his mother

did not know where he was), report and recommendation adopted, 2016 WL

5329560; Villaverde v. Smith, No. 3:10-CV-00347, 2016 WL 1248721, at *7 (D. Nev.

14

Mar. 28, 2016) (unpublished) (upholding state court unavailability finding despite

“9 laundry list of other avenues” the state could have pursued), certificate of

appealability denied, No. 16-15660 (9th Cir. Aug. 26, 2016); Montoya v. McDowell,

No. CV 15-2042, 2015 WL 6125516, at *38 (C.D. Cal. Aug. 4, 2015) (unpublished)

(upholding state court unavailability finding because, although police “could have

taken additional steps to find the victim, including stepped-up searches of facilities

that deal with the homeless,” “the Constitution does not require that the police take

all conceivable actions”), report and recommendation adopted, 2015 WL 6126797;

Carter v. Bigelow, No. 2:02-CV-326, 2012 WL 3964819, at *43 (D. Utah Sept. 11,

2012) (unpublished) (“As aptly stated by the Utah Supreme Court, the efforts made

by the State were not exhaustive, but that is not the standard.”), aff'd on other

grounds, 787 F.3d 1269 (10th Cir. 2015).

Petitioner also appears to suggest that this Court should grant certiorari

because, even if Medina was properly deemed unavailable at the beginning of trial,

that determination was invalidated by her subsequent arrest during trial. Pet. 13.

Petitioner did not clearly make this argument before the federal district court or the

Tenth Circuit, making this case a poor vehicle for answering that unusual and factspecific question. Because he referenced the potential issue only once in his briefing

to each court, C.A. App. at 1803—04; Tenth Cir. Reply Br. at 14, neither court’s

decision discussed the issue in detail.

But even if the question were properly before this Court, Petitioner has not

suggested that there is a split of authority or other compelling reason for this Court

15

to consider the issue. And the Tenth Circuit correctly explained in a footnote why

such a theory would not provide a basis for relief under AEDPA. Because there is no

clearly established holding of this Court on the question of whether a witness’s

arrest during trial affects unavailability where the parties and the court are

unaware of the arrest, this Court’s clearly established law “states only that ‘the

focus is on whether the prosecution made good-faith efforts to produce the witness

‘prior to trial, not during trial.” Pet. App. A at 19 n.3 (quoting and adding emphasis

to Roberts, 448 U.S. at 74).

In other words, even if the issue of Medina’s arrest mid-trial had been

properly briefed and fully ruled upon below, the state courts’ failure to grant relief

on such a theory could not represent an unreasonable application of this Court’s

case law. See White v. Woodall, 572 U.S. 415, 427 (2014) (explaining that even if the

Sixth Circuit’s preferred view of a Fifth Amendment issue would be “the logical next

step,” habeas relief was unavailable because: “we have not yet taken that step,”

“there are reasonable arguments on both sides,” and the “appropriate time to

consider the question as a matter of first impression would be on direct review, not

in a habeas case”).

C. The Tenth Circuit correctly denied relief on

Petitioner’s confrontation claim.

The general factual background for Petitioner’s confrontation claim is not in

dispute. Medina disappeared; the police could not locate her despite searching for

several months leading up to trial; and the trial court ruled that this

“unavailability” allowed her deposition to be introduced at trial. See Pet. App. A at

16

15-16. Applying AEDPA’s “deferential standard,” Hardy, 565 U.S. at 72, the Tenth

Circuit considered this background and properly concluded that the CCA’s decision

was neither contrary to nor involved an unreasonable application of this Court’s

case law; nor was it based on an unreasonable determination of the facts.

1. The CCA’s decision was not contrary to or

an unreasonable application of this Court’s

case law.

As the Tenth Circuit recognized, Pet. App. A at 17, the CCA’s decision was

not “contrary to” this Court’s case law. Rather, the CCA correctly summarized the

holding of Roberts, stating: “To show unavailability of a witness in the

constitutional sense, the party asserting unavailability must show that good faith,

reasonable efforts were made to produce the witness for trial, but without success.”

Id. at 15.

Nor did the CCA’s holding involve an unreasonable application of the

decisions of this Court. The CCA concluded that Medina was properly deemed

“unavailable” based on the investigators’ search efforts, pointing out that “good

faith may not require the exhaustion of every possible means of securing the

witness’s presence, especially if the means available appear futile, or if the witness

may be in a position to frustrate efforts to compel her attendance.” Jd. at 16-17.

And the court correctly refused to “adopt a holding that would require a witness,

such as [Medina], who has a demonstrated propensity not to appear, to be held in

custody for over five months solely to ensure attendance at trial.” Id. at 17.19

10 A contrary holding would likely jeopardize the rights of potential witnesses.

17

The CCA’s decision thus represents a straightforward, and certainly

reasonable, application of this Court’s case law. Contrary to Petitioner’s claim that

the prosecution did “almost nothing” to find Medina and “did not want to find her,”

because it “had her deposition,” Pet. 6—7, the prosecution’s investigators made

serious efforts to locate her. They checked multiple former addresses of Medina;

checked the post office for potential new addresses; visited the areas where she was

seen and known to frequent; spoke with her parents; and spoke twice a week with

her grandfather—“the one person from [her] family” who was “cooperative with the

police.” Id. at 15-18. The investigators were told that Medina did not have a

permanent address, was living “on the streets,” and was, in fact, hiding (or being

hidden) from them to avoid testifying. Id.

In these circumstances, the Confrontation Clause “does not require the

prosecution to exhaust every avenue of inquiry, no matter how unpromising.”

Hardy, 565 U.S. at 71-72. And in Roberts—where the duty of good faith was

satisfied—the prosecution did far less than what was done here, relying on the

witness’s mother’s statements that she thought the witness was out of state and did

not know how to contact her and delivering subpoenas to the mother and the

witness’s last address, even though she no longer lived there. Roberts, 448 U.S. at

75-76. “Good-faith efforts” did not require following every other potential avenue,

including calling the social worker who was the last person known to have

information. See id.

18

The CCA’s binding factual determinations refute Petitioner’s claim that the

prosecution’s search efforts were “perfunctory, delayed, and empty.” Pet. 14. And

the proposed additional avenues Petitioner suggests would not render the

investigators’ efforts insufficient even on de novo review, let alone under AEDPA.

?

This Court has made clear that, in hindsight, one can “always think of other things’

that could have been done; and the unlikelihood that any of those suggested efforts

would have succeeded weighs against ruling that “a concept of reasonableness

required their execution.” Hardy, 565 U.S. at 70.

2. The CCA’s decision was not based on an

unreasonable determination of the facts.

Nor did the CCA base its decision on “an unreasonable determination of the

facts.” 28 U.S.C. § 2254(d)(2). The Tenth Circuit here accurately quoted the CCA’s

relevant factual findings as follows:

A.D. an investigator for the district attorney’s office

testified that she was assigned to locate and hand serve

Ms. Medina. To this end, A.D. went to Ms. Medina’s prior

known address, the address listed on a traffic citation Ms.

Medina received, and visited the post office nearest Ms.

Medina’s last known address to see if Ms. Medina filed a

change of address form. Despite these efforts, A.D. testified

that she was unable to locate Ms. Medina.

M.L. a detective with the Westminster Police Department

testified about his knowledge of Ms. Medina’s living

situation and his prior conversations with Ms. Medina.

Information from various sources indicated that she had no

permanent residence and lived “on the streets” in the

vicinity of East Colfax Avenue in Denver.

Ms. Medina told M.L. that there was no location where he

would be able to contact her, and that the best way to

contact her was through her grandfather. M.L. stated that

he had a good rapport with the grandfather, who was “the

19

one person from Ms. Medina’s family who had been

cooperative with the police.” M.L. stated he had had “at

least a half-dozen” bi-weekly conversations with the

grandfather, seeking to locate Ms. Medina, the most recent

of which was two days before the hearing. M.L. had told the

grandfather that if Ms. Medina contacted him, he was to

call police and try to hold her so that police could pick her

up.

M.L. also testified that he enlisted the aid of the Special

Crime Attack Team (SCAT) unit of the police to search for

Ms. Medina. The SCAT unit looked for her at the same

Denver address at which she had earlier been arrested.

They also looked for her on the streets in areas she was

known to frequent.

M.L. also made a search for her along Colfax Avenue.

Testimony of M.L. also established that police had been

given information that Ms. Medina might have secreted

herself in order to avoid testifying. Other information

supplied to police indicated that a person who might have

been her “pimp” might have been limiting her “freedom to

come and go and that this guy was keeping a pretty good

lid on her.”

Pet. App. A at 15-16 (additional paragraphing supplied, brackets omitted).

The hearing transcript confirms that these findings were accurate and not

unreasonable in light of the state court record. See 28 U.S.C. § 2254(d)(2); C.A. App.

at 310-11, 326—36. The findings are also presumed to be correct. See 28 U.S.C. §

2254(e)(1); Martinez v. Sullivan, 881 F.2d 921, 926 (10th Cir. 1989) (in

unavailability claims, “the presumption of correctness applies to the basic, primary

or historical facts”).

Petitioner does not appear to dispute the factual determinations the CCA

actually made. He instead faults the CCA for “emphasizing the [witness’s]

grandfather’; for “not mentioning” Medina’s other family members; for “assuming”

20

the SCAT unit had searched on Colfax Avenue when the detective testified only

that he told them the location; and by “emphasizing” that Medina “might” have

been hiding. Pet. 8-13. These are not arguments that the state court’s factual

determinations were incorrect—much less “unreasonable ... in light of the evidence

presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2); see also Hunterson

v. Disabato, 308 F.3d 236, 250 (3d Cir. 2002) (holding that the state court had not

unreasonably determined the facts, as petitioner was really “challenging the [state]

court’s view of the gravity of what he did, not its determination of what occurred”).

Nor was the CCA “unreasonable” to make logical inferences from the testimony,

such as finding that the SCAT unit performed its standard functions by acting on

information it was given. See id. (where “permissible inferences could be drawn

either way, the state court decision must stand, as its determination of the facts

would not be unreasonable”). Because the CCA’s decision was based on a reasonable

determination of the facts, the Tenth Circuit properly denied relief under AEDPA.

II. This Court should deny certiorari on Petitioner’s denialof-counsel claims.

Nor is there a compelling reason to grant certiorari on Petitioner’s Sixth

Amendment claim. He asserts that his right to counsel was violated because he was

unrepresented (1) on March 31, 2005, when he waived his statutory speedy trial

right, and (2) on April 6, 2005, when the trial court granted Medina supervised

release from jail. But there is no split of authority that would affect the outcome of

this case, as all jurisdictions recognize that some errors regarding the right to

21

counsel are reviewed for harmless error. And the Tenth Circuit correctly concluded

that even if there was error in this case, it was harmless.

A, There is no split of authority: jurisdictions agree

that, unless deprivation of counsel contaminates the

entire proceeding, review is for harmless error.

The law regarding the right to counsel in this context is well established.

“The Sixth Amendment guarantees a defendant the right to have counsel present at

all critical stages of the criminal proceedings.” Missouri v. Frye, 566 U.S. 134, 140

(2012) (internal quotation marks omitted). This Court has held that “critical stages”

include “arraignments, postindictment interrogations, postindictment lineups, and

the entry of a guilty plea.” Jd. Beyond that, this Court has generally “defined critical

stages as proceedings between an individual and agents of the State (whether

‘formal or informal, in court or out,’) that amount to ‘trial-like confrontations,’ at

which counsel would help the accused ‘in coping with legal problems or ... meeting '

his adversary.” Rothgery v. Gillespie Cty., 554 U.S. 191, 212 n.16 (2008) (internal

citations omitted). It is thus “the need for counsel’s presence” that “makes a stage

critical.” Id. at 212.

Moreover, not every Sixth Amendment violation resulting from a denial of

counsel at a “critical stage” constitutes structural error—some such errors can be

reviewed for harmlessness. See, e.g., Ditch v. Grace, 479 F.3d 249, 256 (3d Cir.

2007); United States v. Lott, 483 F.3d 718, 722 (10th Cir. 2006); United States v.

Owen, 407 F.3d 222, 228 (4th Cir. 2005). For example, in Coleman v. Alabama, 399

U.S. 1 (1970), this Court held that a preliminary hearing under Alabama law was a

“critical stage,” but nonetheless reviewed the denial of counsel for harmlessness. Id.

22

at 9-11. And in Satterwhite v. Texas, 486 U.S. 249 (1988), this Court found a

violation of the Sixth Amendment right to counsel, but explicitly rejected the

argument that automatic reversal applied. Id. at 256-57. The Court pointed out

that it has applied automatic reversal to Sixth Amendment violations only where

“the deprivation of the right to counsel affected—and contaminated—the entire

criminal proceeding.” Id. at 257. This includes, for example, having conflicted

counsel “throughout [the] entire proceeding” and the “total deprivation of counsel.”

Id. In Satterwhite, by contrast, the denial of counsel resulted simply in the

introduction of certain evidence that otherwise would have been excluded—a defect

that could be assessed for harmlessness. Id.

There has been some occasional confusion over this Court’s statement in

United States v. Cronic that prejudice is to be presumed whenever “the accused is

denied counsel at a critical stage of his trial,” 466 U.S. 648, 659 (1984), but that

confusion has not engendered a split of authority. “Indeed, every federal circuit

court of appeals has stated, post-Cronic, that an absence of counsel at a critical

stage may, under some circumstances, be reviewed for harmless error.” People v.

Murphy, 750 N.W.2d 582, 586-87 (Mich. 2008) (Markman, J., concurring) (citing

cases). Instead, any confusion has been over terminology, not substance. Compare

Ditch, 479 F.3d at 256 (deprivation of counsel at “critical stages” may be

reviewed for harmlessness, since this Court has used the phrase in more than

one sense) with Van v. Jones, 475 F.3d 292, 311-13 (6th Cir. 2007) (deprivation

of counsel at a “critical stage” requires automatic reversal because the definition

23

of “critical stage” incorporates the likelihood of prejudice). Courts agree on what

matters: reversal is required when a deprivation of counsel “affected—and

contaminated—the entire criminal proceeding.” Satterwhite, 486 U.S. at 257.1!

Under the AEDPA standard, for denial-of-counsel claims that are reviewable

for constitutional harmlessness on direct appeal, a habeas petitioner must show he

was “actually prejudiced” in order to receive relief. In other words, he must show

that counsel’s absence had a “substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht, 507 U.S. at 623; see also, e.g., Ditch, 479

F.3d at 256 (applying Brecht to Sixth Amendment denial-of-counsel claim); Mitzel v.

Tate, 267 F.3d 524, 534 (6th Cir. 2001) (same); Hoffman v. Arave, 236 F.3d 523, 540

(9th Cir. 2001) (same); Yarborough v. Keane, 101 F.3d 894, 899 (2d Cir. 1996)

(same); Owsley v. Bowersox, 48 F. Supp. 2d 1195, 1203 (W.D. Mo. 1999) (recognizing

that habeas petitioner “must prove actual prejudice from the absence of counsel”).

These principles are settled and consistently applied by the lower Courts, and there

is no need for this Court’s review.

11 Moreover, Cronic did not involve the question whether a “critical stage” had

occurred and did not involve a proceeding at which the defendant did not have an

attorney. Cronic was an ineffective-assistance case announced the same day as

Strickland v. Washington, 466 U.S. 668 (1984). The question was what standard

applies to determine whether a defendant’s right to effective counsel requires

reversal. See Cronic, 466 U.S. at 653-64. And as noted, this Court later clarified in

Satterwhite that it is “Sixth Amendment violations that pervade the entire

proceeding” that trigger automatic reversal. 486 U.S. at 256.

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