## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 13 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EUGENE ROMERO, Petitioner-Appellant, v. ROBERT FURLONG and KEN SALAZAR, Attorney General, State of Colorado, Respondents-Appellees. No. 98-1430 & 99-1035

Appeal from the United States District Court

for the District of Colorado (D.C. No. 95-WM-1149)

Howard A. Pincus, Assistant Federal Public Defender(Michael G. Katz, Federal Public Defender, with him on the briefs) for Petiti oner-Appellant. Clemmie Parker Engle, Senior Assistant Attorney Gen eral, Appellate Division (Ken Salazar, Attorney General, with her on the bri ef) for Respondents-Appellees.

Before SEYMOUR, Chief Judge, MCKAY and EBEL , Circuit Judges.

EBEL , Circuit Judge.

A Colorado state court jury convicted Petitioner-Ap pellant Eugene Romero of second degree burglary and theft over $300. Pur suant to the state’s habitual- 2 -

offender statute, Mr. Romero was sentenced to life in prison. After unsuccessfully challenging his conviction and sente nce on direct appeal and state collateral review, Mr. Romero filed the present hab eas corpus petition in federal court attacking the constitutionality of his convic tion and his classification as a habitual offender. The federal district court deni ed his petition. We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 & 2253 and AFFIRM.
BACKGROUND In 1986, Appellant was convicted in Colorado state court of burglary and theft following a jury trial. The jury also determ ined, in a bifurcated proceeding, that Appellant was a “habitual criminal” under Colo rado law because he had previously been convicted of five prior felonies. Based on this finding, the trial court imposed the sentence of life imprisonment. Ms. Claudia Jordan of the Colorado Public Defender’ s Office initially represented Appellant on all the charges (i.e., the burglary/theft charges and the habitual criminal charges). Prior to trial, howeve r, the prosecution announced that it intended to call Appellant’s former attorne y, Mr. Richard Davis, as a witness during the habitual criminal phase of the t rial. Mr. Davis had represented Appellant in connection with a 1975 charge to which Appellant pled guilty. Mr. Davis was also a public defender and worked in the same office as Ms. Jordan. Ms. Jordan became concerned that the prosecution’s intention to call Mr. Davis as1 Ultimately, the court determined that Mr. Davis’ t estimony was not

necessary, and he was not called. - 3 - a witness against Appellant created a potential con flict of interest. After holding a hearing on the issue, the trial court decided to appoint private counsel to represent Appellant during the habitual criminal ph ase of the trial. Shortly before trial, the state offered Appellant asixteen-year sentence in exchange for a guilty plea. Appellant rejected the offer, which would have allowed him to serve only eight years in prison, in order to “have his day in Court.” Ms. Jordan informed Appellant that she tho ught he would likely be convicted at trial and advised him to accept the of fer. At that time, Ms. Jordan expressed her opinion to the court that Appellant “ is upset because I have given him an honest assessment” of his situation. Appell ant insisted on going to trial, was convicted, and received a life sentence. On direct appeal to the Colorado Court of Appeals, Appellant claimed he was denied effective assistance of counsel because Ms. Jordan had an actual conflict of interest as a result of the government’ s announced intention to call Ms. Jordan’s colleague, Mr. Davis, in the habitual criminal proceedings. 1 See People
v. Romero , 767 P.2d 782, 783 (Colo. App. 1988). Appellant also claimed that three of the five prior guilty pleas supporting the habitual criminal adjudication were not knowing and voluntary and were therefore o btained in violation of his- 4 -

constitutional rights. See id. at 786. The court rejected both of these claims a nd affirmed the convictions, the habitual criminal adj udication, and the sentence.
See id. at 787. In 1989, Appellant filed a motion for post-convicti on relief in state district court, asserting a variation on his earlier conflic t of interest claim. Specifically, this time Appellant argued that his belief that Ms. Jordan was under a conflict of interest made it impossible to trust her, and that he was therefore denied effective assistance of counsel based on the complete breakdo wn of their attorney-client relationship. The state asserted that Appellant’s new ineffective assistance claim was procedurally barred because on direct appeal he had raised an ineffective assistance claim predicated on an asserted actual conflict of interest of counsel. However, the state court determined there was no pr ocedural bar and held an evidentiary hearing on the issue. At the evidentia ry hearing, the court heard testimony from both Ms. Jordan and Appellant. Foll owing the hearing, the court ruled that Appellant had not been denied effective assistance of counsel. Appellant appealed this ruling to the Colorado Court of Appeals. However, the Court of Appeals refused to consider the merits of Appellant’s new ineffective assistance of counsel claim because Appellant had r aised an ineffective assistance claim on the direct appeal and, therefore, this cla im was procedurally barred. In 1995, Appellant filed a federal habeas petition pursuant to 28 U.S.C. §- 5 -

2254, attacking the constitutionality of his convic tion and arguing that he was denied effective assistance on three theories: impu ted disqualification of Ms. Jordan; actual conflict of interest on the part of Jordan; and complete breakdown of the attorney/client relationship. Appellant als o challenged his habitual criminal classification, claiming that his prior co nvictions in 1973, 1975, and 1980 were obtained unconstitutionally. The magistr ate judge found that Appellant had been denied effective assistance of c ounsel due to the complete breakdown of his relationship with his attorney andtherefore recommended that the district court grant Appellant’s habeas petitio n with respect to his conviction. The magistrate further determined that Appellant’s 1973 conviction had been obtained unconstitutionally, but recommended that t he district court deny habeas relief from the habitual criminal adjudication (ass uming the district court did not agree to grant habeas relief on the underlying conv iction) because four of Appellant’s previous convictions remained valid and , under Colorado law, only three felony convictions were necessary for classif ication as a habitual criminal. The district court declined to adopt the magistrate ’s recommendation in connection with the ineffective assistance of couns el claim but adopted the remaining recommendations and denied habeas relief, both with regard to the conviction and the sentence.2 The Supreme Court has recently decided, however, t hat AEDPA’s

provisions regarding the issuance of a Certificate of Appealability (“COA”) as a predicate to review in the Courts of Appeals do app ly to cases in which the notice of appeal was filed after AEDPA’s effective date, April 24, 1996. See Slack v. McDaniel , 120 S. Ct. 1595, 1603 (2000). Consistent with Sl ack , we treat Appellant’s notice of appeal in this case as an app lication for a COA. See id. We further find that Appellant has made the requisite “substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253 (c)(2) (Supp. 1999), with respect to his ineffective assistance and sentence enhancement claims. We hereby grant the COA and exercise jurisdiction over these claims on appeal. - 6 - Appellant now appeals the judgment of the district court. Appellant asserts that he was denied effective assistance of counsel based on the total breakdown in communication between Ms. Jordan and himself, and h e further argues that the district court erred in not granting him a hearing on the matter. In addition, Appellant contends that the district court erred in failing to grant habeas relief as to his life sentence predicated on the habitual cri minal adjudication because his 1973, 1975, and 1980 convictions were not knowing and voluntary.
DISCUSSION Appellant filed his § 2254 petition in the federal district court in May of 1995. As a result, the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, does not applyto the merits of his claims. 2
See Lindh v. Murphy , 521 U.S. 320, 326, 117 S. Ct. 2059, 2063, 138 L. Ed.2d 481 (1997). As a federal court conducting a review in habeas of state court determinations, our role is secondary and limited. Although we- 7 -

review legal conclusions de novo, a state court’s f actual findings are entitled to a presumption of correctness. Mixed qu estions of law and fact are reviewed de novo, but the presumption of c orrectness will continue to apply to any findings of fact underlyin g mixed questions. Castro v. Ward , 138 F.3d 810, 815-16 (10th Cir. 1998) (citations and internal quotation marks omitted). The substance of our rev iew is confined to whether Appellant is “in custody in violation of the Consti tution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (1994).
I. Ineffective Assistance Before addressing Appellant’s ineffective assistanc e arguments, we note that this case presents a number of complex issues concerning the applicability of Colorado’s procedural bar to these claims. We neednot and do not address these issues, however, because the case may be more easil y and succinctly affirmed on the merits. See Cain v. Redman , 947 F.2d 817, 820 (6th Cir. 1991) (“In the present case, it is in the interest of judicial eco nomy for this court to hear this cause in spite of the unresolved issues of exhausti on and procedural default.”); cf. United States v. Wright , 43 F.3d 491, 496 (10th Cir. 1994) (addressing a 2 8 U.S.C. § 2255 petition and declining to address the procedural bar issue because the claim would fail on the merits in any event). The core of Appellant’s ineffective assistance clai ms is that he was denied constitutionally effective counsel due to the compl ete and total breakdown in communication between him and his trial counsel, Ms . Jordan. We have3 We note that it is unclear from Appellant’s brief whether he is arguing

only that the district court erred in not holding ahearing, or also that we should grant habeas relief based on the existing record. We assume that Appellant has presented the latter argument as an alternative gro und for reversal, and we address it accordingly. - 8 - recognized that “[a] complete breakdown in communic ation between an attorney and client may give rise to [a presumption of ineff ectiveness].” United States v. Soto Hernandez , 849 F.2d 1325, 1328 (10th Cir. 1988). Appellant also complains that the district court should have held a hearing to investigate the alleged breakdown, and, alternatively, 3 that the state record itself demonstrates that suc h a breakdown occurred. We find that neither argument has merit. A. Hearing We disagree with Appellant’s claim that the distric t court should have given him an evidentiary hearing to develop the fac tual basis for his ineffective assistance claim. Under pre-AEDPA law, the federal courts must give a presumption of correctness to findings of a state c ourt on factual issues: [A] determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or a n officer or agent thereof were parties, evidenced by a written findin g, written opinion, or other reliable and adequate written indicia, sha ll be presumed to be correct . . . . 28 U.S.C. § 2254(d).- 9 -

Appellant contends that three exceptions to this pr esumption apply in the present case: (1) the state court did not make a fa ctual finding regarding the alleged breakdown in communication, see 28 U.S.C. § 2254(d)(1); (2) the state court applied the incorrect legal standard, see Lafferty v. Cook , 949 F.2d 1546, 1552 n.4 (10th Cir. 1991) (“Only afterconcluding that a state court used the proper standard does a habeas court turn to the iss ue of the presumption of correctness.”); and (3) the state court’s conclusio n was not fairly supported by the record, see 28 U.S.C. § 2254(d)(8). We conclude that none of these exceptions applies in the present case. 1. State Court’s Factual Finding In seeking collateral review in the state courts, Appellant argued that his relationship with trial counsel completely deterior ated after he learned that Mr. Richard Davis, Appellant’s lawyer in a previous con viction and a public defender in the same office where Ms. Jordan was employed, m ight be testifying against Appellant at the habitual criminal phase of his tri al. Appellant maintained that this perceived impropriety led him to “fear that co unsel was disloyal to him,” thus rendering the representation constitutionally defec tive. The state court held a hearing on this collateral c hallenge and heard testimony from both Appellant and Ms. Jordan. Ms. Jordan testified that her relationship with Appellant deteriorated dramatical ly after Appellant learned that- 10 -

Mr. Davis might be called as a witness in his habitual criminal proceedings. Ms. Jordan also testified that it became “impossible” t o have a reasoned discussion with Appellant, and that Appellant had become uncoo perative. Appellant testified that Mr. Davis’ role in the habitual criminal proce edings made him unable to trust Ms. Jordan and led him to believe he was being “rai lroaded.” As a result, Appellant testified, “I didn’t even want to partici pate in my own trial, to tell you the truth.” The state district court denied Appellant’s petitio n for collateral relief. With regard to the ineffective assistance claim, th e court recognized the fact that “the defendant ceased all substantive participation in the trial,” but found both Appellant’s testimony and his claims of ineffective assistance “incredible.” The court specifically rejected Appellant’s claim that the potential conflict of interest destroyed his confidence in Ms. Jordan: “The court finds illogical the defendant’s testimony that he lost confidence in trial counsel when she raised the conflict of interest.” Moreover, the court found that Appellan t’s dislike of Mr. Davis “should have been manifest earlier if it was in fac t the basis for the defendant’s personal conflict.” Thus, the court concluded thatAppellant’s behavior was not the result of a complete breakdown in communication between Appellant and Ms. Jordan.- 11 -

The state court explicitly rejected Appellant’s tes timony, and it impliedly rejected Ms. Jordan’s testimony that a breakdown ha d occurred. The state district court had been briefed on the Soto Hernandez claim, and it rejected this and any other arguments of ineffective assistance. It is t herefore apparent that the state court made a factual finding to that effect because it denied Appellant relief. Thus, § 2254(d)(1) does not negate our presumption of correctness. 2. Legal Standard Used by State Court The state court had been advised of the Soto Hernan dez issue and was clearly aware from its analysis that a total breakd own in communication can support an ineffective assistance claim. We theref ore conclude that the court’s factual findings were not based on “an erroneous vi ew of the governing law,” Lafferty , 949 F.2d at 1552 n.4. 3. Fair Support in the Record for the State Court’s Findings Our review of the state court record reveals ample evidence that there was not here a total lack of communication. With respe ct to the plea negotiations, it is undisputed that Ms. Jordan communicated the state’s offer to him and encouraged him to accept it. And there is ample support for t he state court’s conclusion that Appellant’s refusal to cooperate was simply a trial strategy born out of desperation.4 Further, Appellant does not indicate what addition al evidence he would

present that was not made part of the record in the state court. To the extent he might wish to adduce substantial new evidence, we n ote that he would be prohibited from doing so under current case law. S ee Demarest v. Price , 130 F.3d 922, 932 (10th Cir. 1997) (“[A]lthough a habeas pet itioner will be allowed to present bits of evidence to a federal court that we re not presented to the state court that first considered his claim, evidence that places the claims in a significantly different legal posture must first be presented to the state courts.”) (citations and internal quotation marks omitted). - 12 - Because Appellant has not shown that any exception to the presumption established in § 2254(d) applies, we are bound by the state court’s determination that no complete breakdown of communication occurre d. Accordingly, it was not error for the district court to deny an evidentiaryhearing. 4 See Scrivner v. Tansy , 68 F.3d 1234, 1242 (10th Cir. 1995) (“Even if disputed issues of fact are raised, a habeas petitioner is entitled to a hearing in feder al court only if he did not receive a full and fair evidentiary hearing in a state court . . . which resulted in reliable findings.”) (citations and internal quotation marks omitted). B. Merits In deciding whether a complete breakdown in communi cation rendered Appellant’s representation constitutionally ineffec tive, we consider four factors. The first three factors we take from the Ninth Circ uit case of Bland v. California Dep’t of Corrections , 20 F.3d 1469, 1475 (9th Cir. 1994): (1) whether Appellant made a timely motion requesting new counsel; (2) wh ether the trial court adequately inquired into the matter; (3) “whether t he conflict between the5 In Soto Hernandez we relied on Brownin support of the conclusion that a

complete breakdown in communication creates a presu mption of ineffective assistance. See Soto Hernandez , 849 F.2d at 1328. We note that Brown , like our decision today, assumes that the defendant’s contri bution to the breakdown in communication cannot be unjustifiable under the cir cumstances. The Browncourt ordered “a new trial attended with all reasonable a ssurance that [the defendant] be represented by competent counsel, . . . in whom he may, if he does not demonstrate obstinance, recalcitrance, or unreasona ble contumacy , repose his confidence.” Brown , 424 F.2d at 1170 (emphasis added). - 13 - defendant and his attorney was so great that it res ulted in a total lack of communication preventing an adequate defense.” Id. (citation and internal quotation marks omitted). In addition, we think a fourth factor is certainly implied and we now make it explicit: (4) whether th e defendant substantially and unjustifiably contributed to the breakdown in commu nication. See Brown v.
Craven , 424 F.2d 1166, 1170 (9th Cir. 1970). 5 With regard to the first factor, when the trial cou rt addressed the potential conflict presented by Mr. Davis’ service as a potential witness in the habitual criminal phase, Appellant was asked whether, in lig ht of the court’s decision to appoint separate counsel for that part of the proce edings, he still wished Ms. Jordan to represent him at trial. Appellant replie d: “Yeah, I guess, yeah. No, I don’t then.” Although this ambiguous statement mig ht be sufficient to inform the court of Appellant’s belief that he still thought M s. Jordan was conflicted, we question whether it gave notice to the trial court that the Appellant was asserting that there was a complete breakdown in communicatio n.- 14 -

As to the second factor, we similarly doubt whetherthe trial court failed to make an adequate inquiry under the circumstances. After Appellant made the above statement, the court inquired of Ms. Jordan w hether, in her opinion, the conflict would be resolved through the appointment of separate counsel for the habitual offender proceedings. She indicated that it would. Following that exchange, the Appellant failed to renew his objecti on or to suggest in any way that he still had a claim of ineffective counsel ba sed on a total breakdown of communication. The court, therefore, quite reasona bly could have assumed that it had adequately addressed Appellant’s concern as a m atter of law, even if Appellant did not agree with the ruling. In light of Appellant’s equivocation, we are reluctant to conclude that the district court s hould have deduced some larger problem and expanded the scope of his inquiry beyon d the conflict of interest issue. With respect to the third factor, we have already e xplained at length that 28 U.S.C. § 2254(d) requires we defer to the state cou rt’s factual determination that no such breakdown occurred. As a practical matter, Appellant’s failure on this factor is fatal to his argument, since satisfaction of this factor is a logical predicate to his ineffective assistance claim. Finally, we note there is significant evidence in t he record that whatever difficulty in communication developed between Appel lant and Ms. Jordan appears- 15 -

largely to have been the result of Appellant’s deci sion not to participate in the proceedings. As Appellant candidly admitted in the state court hearing, “I didn’t even want to participate in my own trial, to tell y ou the truth.” Appellant also refused at trial to change from his prison clothes into available street clothes and informed Ms. Jordan that he would rather remain in the holding cell than participate in his trial. A breakdown in communication warranting relief under the Sixth Amendment cannot be the result of a defen dant’s unjustifiable reaction to the circumstances of his situation. In the pres ent case, there is significant evidence in the record that Appellant’s difficultie s were the product of his negative attitude toward the proceedings and not a justifiable reaction to some outside influence or event. In fact, the district court concluded that Appellant was not sincere in this claim, but was rather despe rately attempting to conjure up some error in the proceeding. A defendant cannot s imply manufacture a breakdown in communication and thereby give rise to a constitutional violation. In sum, we conclude that Appellant did not suffer acomplete and total breakdown in communication with Ms. Jordan. It is apparent that Appellant made an error in judgment by refusing the state’s plea o ffer, but such mistakes alone do not amount to constitutional error. Accordingly, w e affirm the district court’s denial of Appellant’s ineffective assistance claim.6 Appellant does not challenge the constitutionalityof his 1975 conviction

for first degree armed trespass or his 1985 convict ion for criminal attempt to commit second degree burglary. - 16 - II. Sentence Enhancement Appellant claims that he was improperly sentenced t o life in prison under Colorado’s habitual criminal statute. Appellant cl aims that three of his five prior felony convictions were unconstitutionally obtainedand therefore cannot serve as predicate offenses for his classification as a habi tual offender. We disagree. At the time of Appellant’s sentencing, C.R.S. § 16 -13-101(2) (1986) mandated that an individual convicted of a felony a fter three prior felony convictions receive a life sentence. Upon Appellan t’s conviction in the instant case, the state introduced evidence that Appellant had previously been convicted of five separate felonies: 1973 (second degree burg lary), 1975 (second degree burglary), 1975 (first degree criminal trespass), 1 980 (criminal attempt to commit escape), and 1985 (criminal attempt to commit secon d degree burglary). Appellant unsuccessfully challenged the validity of three of these convictions on direct appeal, state collateral review, and in his federal § 2254 petition. Appellant argues to this court that his guilty plea s were constitutionally defective in the 1973, 1975 (burglary), and 1980 cases. 6 Because Colorado law requires only three prior felony convictions for this senten cing enhancement, Appellant7The parties dispute whether Colorado law did in fa ct require this specific

articulation of intent at the time Appellant pled g uilty to the offense. We need not address this issue, however, since Appellant’s claim fails even assuming that he correctly states the law. - 17 - must establish that all three of the challenged con victions were in fact unconstitutional. This he cannot do. In 1976, Appellant received a furlough from prison, but failed to return and was at large for four years. Appellant was apprehe nded and in 1980 pled guilty to attempted escape. Appellant contends that this ple a was involuntary and unintelligent, and therefore unconstitutional becau se the plea colloquy misinformed him as to a material element of the off ense. According to Appellant, the prosecutor misstated the requisite intent for t he offense. Upon invitation of the presiding judge, the prosecutor recited the elements of the offense. With respect to intent, the prosec utor stated that the Appellant must have “intentionally and feloniously escape[d] from said confinement.” Appellant contends that, at that time, Colorado req uired as an element of the offense that one have acted with the “intent to avo id the due course of justice.” 7 It is well-settled that a guilty plea is not “volu ntary in the sense that it constituted an intelligent admission that [a defend ant] committed the offense unless the defendant received ‘real notice of the t rue nature of the charge against him.’” Henderson v. Morgan , 426 U.S. 637, 645, 96 S. Ct. 2253, 2257, 49 L.- 18 -

Ed.2d 108 (1976) (quoting Smith v. O’Grady , 312 U.S. 329, 334, 61 S. Ct. 572, 574, 85 L. Ed. 859 (1941)). Appellant would have u s believe that acting with the intent to escape and acting with the “intent to avo id the due course of justice” are distinct and separate concepts. By definition, how ever, escape is avoiding the due course of justice. It is a mystery to us how Appel lant could agree with the court during his plea colloquy that he had intended to es cape from prison, but now maintain that he was not aware that he was likewise admitting to an intent to evade the due course of justice. Thus, we conclud e that the prosecutor adequately stated the level of intent required for the offense. A plea colloquy is not rendered constitutionally infirm by the mere fa ilure to recite a legal phase verbatim, and it is beyond question that Appellant was fully informed of the nature of the charge against him. Accordingly, we reject Appellant’s claim that his plea was involuntary and unintelligent. In light of this conclusion, it is not necessary to address Appellant’s challenges to his 1973 and 1975 convictions. Even assuming that these convictions were unconstitutional (a question we do not decide), Appellant’s 1980 conviction suffices as the third prior felony convi ction supporting his classification as a habitual criminal. We therefor e affirm his life sentence under the Colorado statute.- 19 - CONCLUSION Appellant has failed to show that the district court erred in refusing to grant an evidentiary hearing on his ineffective assistanc e claim, and he has likewise failed to establish that the district court erred i n dismissing this claim on the merits. We also conclude that Appellant’s 1980 gui lty plea was voluntary and intelligent, and his classification as a habitual c riminal was therefore proper. Accordingly, the judgment of the district court is AFFIRMED.