IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02375-DME

ALICE DIEHL-CAINE,

Applicant,

v.

LAURIE TAFOYA, Warden, and

THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents.

ORDER ON APPLICATION FOR A WRIT OF HABEAS CORPUS 

PURSUANT TO 28 U.S.C. § 2254

David M. Ebel, Senior Circuit Judge.

This matter is before me on Applicant Alice Diehl-Caine’s pro se1 Application for

a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, filed on September 12, 2011.2

Respondents have filed an Answer,3 and Applicant has filed a Traverse.4 Having

considered the same, along with the state court record, I conclude that the Application

should be denied. 

1

Applicant is proceeding pro se. I, therefore, “review her pleadings and other papers liberally and

hold them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472

F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520–21

(1972). However, a pro se litigant's “conclusory allegations without supporting factual averments are

insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th

Cir.1991). I may not assume that the Applicant can prove facts that have not been alleged or that the

Respondents have violated laws in ways that Applicant has not alleged. Associated Gen. Contractors of

Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 

2

Doc. No. 1.

3

Doc. No. 18. 

4

Doc. No. 19.

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I. Background

On August 30, 2005, a jury in the Mesa County District Court in Grand Junction, 

Colorado (“the trial court”), Case No. 02CR454, convicted Applicant of one count of theft

by receiving, three counts of giving false information to a pawn broker, one count of

criminal impersonation, and one count of unauthorized use of a financial transaction

device.5 The pertinent facts were summarized by the Colorado Court of Appeals as

follows: 

[Applicant] was stopped by police because the make of the car she was

driving did not match the registration information for the license plate. 

Officers arrested defendants and searched her car. Inside, they found a

day planner containing several pawn slips and a checkbook that had been

reported stolen. They also found several small baggies containing a white

residue and a box containing suspected methamphetamine.6

The trial court adjudicated Applicant a habitual offender7

 and sentenced her to an

aggregate prison term of twenty-four years with the Colorado Department of

Corrections.8

The Colorado Court of Appeals affirmed Applicant’s conviction on direct appeal.9

 The Colorado Supreme Court denied certiorari review on March 22, 2010.10

5

State Court R., Court File, vol. 1, at 447. 

6

People v. Diehle-Caine, No. 06CA0485 (Colo. App. Jan. 17, 2008) (unpublished opinion), Doc.

No. 18-1, at 1-2. 

7

State Court R., 11/21/05 Hrg. Tr., at 28-35. 

8

State Court R., 1/23/06 Sentencing Hrg. Tr. 

9

Doc. No. 18-1.

10Doc. Nos. 5-6, 5-7.

2

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 Applicant filed a motion for post conviction relief pursuant to Colo. Crim. P. 35(c)

on September 28, 2008, which the trial court denied on December 11, 2008.11 The

Colorado Court of Appeals affirmed the trial court’s order.12 The Colorado Supreme

Court denied Applicant’s request for certiorari review on May 31, 2011.13 

II. Habeas Claims

Applicant filed her § 2254 Application on September 9, 2011. She asserts two

claims in the Application: (1) ineffective assistance of trial counsel based on counsel’s

“fail[ure] to present exculpatory evidence, call witnesses, do pre-trial investigation and

make any objections at trial”;14 and, (2) the trial court violated her Sixth Amendment

right to trial by jury when the court adjudicated her a habitual criminal.15 

Applicant filed an “Opening Brief”16 in which she clarifies the basis for her

ineffective assistance of counsel claims. She asserts that counsel was ineffective in

failing to: call the Applicant’s husband as a witness at trial to testify that the tools

belonged to him and were not stolen (claim (1)(a)); investigate and present evidence

about the value of the tools that were recovered from the pawn shops (claim (1)(b));

11Doc. No. 9-1. 

12People v. Diehl-Caine, 09CA0168 (Colo. App. Jan. 20., 2011) (unpublished), Doc. No. 5-4.

13Doc. No. 5-2.

14Doc. No. 1, at 11 of 25. 

15Id. at 12 of 25.

16Doc. No. 7.

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and, in failing to object to the expert testimony of three pawn shop witnesses about the

value of the tools (1)(c).17 

III. Exhaustion of State Court Remedies and Procedural Default

Upon preliminary review of the Application, Magistrate Judge Boyd N. Boland

ordered the Respondents to file a pre-answer response addressing the affirmative

defenses of timeliness and exhaustion of state remedies. Respondents concede that

the action is timely under the AEDPA.18 Respondents further concede,19 and I so find,

that Applicant has exhausted state remedies for claims (1)(a), (1)(b), and claim two. 

In addition, the record reflects that Applicant presented to the Colorado Court of

Appeals a claim that trial counsel was ineffective in failing to provide the trial court with

evidence to substantiate the defense motion to disqualify the District Attorney’s office

from representing the State (claim (1)(d)).20 The state appellate court denied this claim

on the merits.21 Because this claim was exhausted properly in the state courts, I will

review it on the merits below.

Respondents argue in their Answer that Applicant has procedurally defaulted

claim (1)(c).22 Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas

corpus may not be granted unless it appears that the applicant has exhausted state

17Id.

18Doc. No. 5, at 6 of 15.

19Id., at 10-11 of 15. 

20Doc. No. 5-6, at 16-19 of 27.

21Doc. No. 5-4, at 7-8 of 13.

22Doc. No. 18, at 15-16 of 24.

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remedies or that no adequate state remedies are available or effective to protect the

applicant’s rights.23 The exhaustion requirement is satisfied once the federal claim has

been presented fairly to the state courts.24 Fair presentation requires that the federal

issue be presented properly “to the highest state court, either by direct review of the

conviction or in a post-conviction attack.”25

Furthermore, the “substance of a federal habeas corpus claim” must have been

presented to the state courts in order to satisfy the fair presentation requirement.26 A

claim must be presented as a federal constitutional claim in the state court proceedings

in order to be exhausted.27 Finally, “[t]he exhaustion requirement is not one to be

overlooked lightly.”28 A state prisoner bringing a federal habeas corpus action bears the

burden of showing that he has exhausted all available state remedies.29 

A claim that has been procedurally defaulted in the state courts on an

independent and adequate state procedural ground is precluded from federal habeas

review, unless the prisoner can demonstrate cause for the default and actual prejudice

23See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State Penitentiary, 36 F.3d

1531, 1534 (10th Cir. 1994). 

24See Castille v. Peoples, 489 U.S. 346, 351 (1989). 

25Dever, 36 F.3d at 1534.

26Picard v. Connor, 404 U.S. 270, 278 (1971); see also Nichols v. Sullivan, 867 F.2d 1250, 1252

(10th Cir. 1989).

27See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam). 

28Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). 

29See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992). 

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as a result of the federal violation, or demonstrate that failure to consider the claim will

result in a fundamental miscarriage of justice.30

The Colorado Court of Appeals declined to address claim (1)(c) in the state postconviction proceeding on the ground that the issue was not presented adequately for

review.31 Respondents argue that because the state appellate court applied a

procedural bar to reject the claim, Applicant is not entitled to a merits review of claim

(1)(c) in this federal habeas proceeding.32 I find and conclude that Applicant has 

defaulted claim (1)(c) in the state courts pursuant to a state procedural rule.33 Applicant

therefore may seek review in this court only if she can “demonstrate cause for the

default and actual prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a fundamental miscarriage

of justice.”34 Applicant filed a Traverse to the Respondents’ Answer, but she did not

allege any specific facts to satisfy the cause and prejudice standard or the fundamental

30Coleman v. Thompson, 501 U.S. 722, 750 (1991); Cummings v. Sirmons, 506 F.3d 1211, 1224

(10th Cir. 2007). 

31Doc. No. 5-4, at 10-11 of 13 and n.1 (observing that Applicant failed to “present[ ] references to

supporting facts in the record, specific arguments, or legal authority to support her contentions.”)

32Doc. No. 18, at 16.

33See Trujillo v. Ploughe, No. 11-1436, 2012 WL 375519 (10th Cir. Feb. 7, 2012) (unpublished)

(affirming district court’s conclusion that claim was procedurally defaulted where state appellate court

refused to address issue on ground that the petitioner failed to allege any facts, argument or authority to

support it); Rodriguez v. Zavaras, 42 F.Supp.2d 1059, 1079 (D.Colo.1999) (finding procedural default of a

claim when the issues raised in a 35(c) motion failed to inform the court as to the grounds, supporting

facts, and authorities therefor); Colo.App. R. 28(b)(4) (“The argument shall contain the contentions of the

appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities,

statutes, and parts of the record relied on.”).

34Coleman, 501 U.S. at 750. 

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miscarriage of justice exception. Accordingly, I will dismiss claim (1)(c) as procedurally

barred. 

I review the merits of claims (1)(a), (1)(b), (1)(d), and claim two below. 

IV. Legal Standard

Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be

issued with respect to any claim that was adjudicated on the merits in state court unless

the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.35

Applicant bears the burden of proof under § 2254(d).36

I review claims of legal error and mixed questions of law and fact pursuant to 28

U.S.C. § 2254(d)(1).37 The threshold question I must answer under § 2254(d)(1) is

whether Applicant seeks to apply a rule of law that was clearly established by the

Supreme Court at the time his conviction became final.38 Clearly established federal

law “refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions

as of the time of the relevant state-court decision.”39 Furthermore, 

3528 U.S.C. § 2254(d). 

36See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).

37See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). 

38See Williams v. Taylor, 529 U.S. 362, 390 (2000). 

39Id. at 412. 

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clearly established law consists of Supreme Court holdings in cases where

the facts are at least closely-related or similar to the case sub judice.

Although the legal rule at issue need not have had its genesis in the

closely-related or similar factual context, the Supreme Court must have

expressly extended the legal rule to that context.40

 If there is no clearly established federal law, that is the end of my inquiry

pursuant to § 2254(d)(1).41 If a clearly established rule of federal law is implicated, I

must determine whether the state court's decision was contrary to or an unreasonable

application of that clearly established rule of federal law.42

A state court decision is “contrary to” clearly established Federal law if it 

“‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or

if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives at a different result from [Supreme Court]

precedent.’”43 A state court decision involves an “unreasonable application” of clearly

established Federal law when “‘the state court identifies the correct governing legal

principle from [the Supreme] Court's decisions but unreasonably applies that principle to

the facts of the Applicant's case.’”44 “The ‘unreasonable application’ clause requires the

state court decision to be more than incorrect or erroneous. . . . The state court's

application of clearly established law must be objectively unreasonable.”45 Under this

40House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). 

41See id. at 1018.

42See Williams, 529 U.S. at 404–05.

43Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams, 529 U.S. at 405–06).

44Lockyer v. Andrade, 538 U.S. 63, 75 (2005) (quoting Williams, 529 U.S. at 413). 

45Id. (citing Williams, 529 U.S. at 409–10, 412). 

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standard, “only the most serious misapplications of Supreme Court precedent will be a

basis for relief under § 2254.”46

As a condition for obtaining habeas corpus from a federal court, a state

prisoner must show that the state court's ruling on the claim being

presented in federal court was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.47

Moreover, “review under § 2254(d)(1) is limited to the record that was before the state

court that adjudicated the claim on the merits.”48 

Finally, when analyzing the Application, all determinations of factual issues by the

state court are presumed to be correct and the Applicant has the “burden of rebutting

the presumption of correctness by clear and convincing evidence.”49“[W]hether a state

court's decision was unreasonable must be assessed in light of the record [that court]

had before it.”50

V. Analysis 

A. Ineffective Assistance of Counsel Claims 

In claims (1)(a), (1)(b), and (1)(d), Applicant asserts that her trial counsel was

ineffective in failing to: call the Applicant’s husband as a witness at trial to testify that the

tools belonged to him and were not stolen (claim (1)(a)); investigate and present

evidence about the value of the tools that were recovered from the pawn shops (claim

46Maynard, 468 F.3d at 671; see also Richter, 131 S.Ct. at 786 (stating that “even a strong case

for relief does not mean the state court's contrary conclusion was unreasonable”).

47Harrington v. Richter, U.S. , 131 S.Ct. 770, 786-87 (2011).

48Cullen v. Pinholster, U.S. , 131 S.Ct. 1388, 1398 (2011).

4928 U.S.C. § 2254(e)(1). 

50Holland v. Jackson, 542 U.S. 649, 651–52 (2004) (per curiam ) (citations omitted).

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(1)(b)); and, in failing to provide the trial court with information to substantiate the

defense motion to disqualify the District Attorney’s office from representing the State

(claim (1)(d)). 

To prevail on her claims of ineffective assistance of counsel, Applicant must

show that: (1) counsel's legal representation fell below an objective standard of

reasonableness; and (2) “the deficient performance prejudiced the defense.”51 Judicial

scrutiny of counsel’s performance is highly deferential.52 Counsel’s decisions are

presumed to represent “sound trial strategy;” “[f]or counsel’s performance to be

constitutionally ineffective, it must have been completely unreasonable, not merely

wrong.”53 Under the AEDPA standard of review, “the question is not whether counsel's

actions were reasonable. The question is whether there is any reasonable argument

that counsel satisfied Strickland's deferential standard.”54

Prejudice exists when there is a reasonable probability that, but for counsel’s

defective representation, the result of the proceeding would have been different.55 The

likelihood of a different result must be substantial, not just conceivable.56 I need not

address both prongs of the Strickland inquiry if Applicant’s claim fails on one.57

51Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 

52Id. at 689. 

53Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999) (internal quotations omitted). 

54Harrington, 131 S.Ct. at 788. 

55Strickland, 466 U.S. at 693. 

56Id. 

57Id. at 697. 

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1. failure to call husband as a witness at trial

In claim (1)(a), Applicant asserts that counsel was ineffective in failing to call her

husband as a witness at trial to testify that the tools belonged to him and were not

stolen. “[T]he decision of which witnesses to call is quintessentially a matter of

strategy.” Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008). 

The state appellate court applied the Strickland standard,58 and rejected

Applicant’s claim on the following grounds:

Diehl-Caine contends that defense counsel provided ineffective

assistance in failing to call her husband to testify that the tools she

pawned actually belonged to him. We perceive no error. 

Here, overwhelming evidence supports the trial court’s ruling and

the jury’s conclusion that the tools were stolen from the victim. At trial, the

prosecution elicited testimony from the victim, who stated that several

power tools and a checkbook had been stolen from his storage unit. The

stolen tools were later recovered from three pawnshops, and the victim

identified the tools as his own. Upon Diehl-Caine’s arrest, police officers

found the victim’s checkbook inside Diehl-Caine’s car, and evidence was

presented that she had fraudulently used the victim’s credit card number. 

Diehl-Caine pawned tools identical to those stolen from the victim and

signed the pawn slips in her own name. As a result, circumstantial

evidence may support the conclusion that the tools belonged to DiehlCaine’s husband, but there is still overwhelming evidence to support the

jury’s conclusion that the tools were stolen from the victim. Testimony

from Diehl-Caine’s husband would have had an “isolated, trivial effect,” in

the context of the “entire evidentiary picture.” Strickland, 466 U.S. at 696. 

Thus, Diehl-Caine has not shown she was prejudiced by her husband not

testifying. Accordingly, the trial court did not err when it rejected DiehlCaine’s claim of ineffective assistance of counsel for failure to call her

husband as a witness.59

58Doc. No. 5-4, at 4-5 of 13.

59Id. at 6-7.

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The state court’s factual findings are presumed correct in this federal habeas

proceeding and are supported by the state court record.60 Applicant has not pointed to

any clear and convincing evidence to contradict those findings. Further, Applicant has

not offered any evidence indicating how her husband would actually have testified if

presented as a witness. Applicant never proffered to the state courts an affidavit from

her husband. Moreover, even assuming that the husband would have testified that the

tools recovered from the pawn shops belonged to him, it is unclear whether he would

have been a credible witness. As recognized by the Colorado Court of Appeals,

significant evidence supported the jury’s verdict that the tools Applicant pawned were 

taken from the victim’s storage shed. Accordingly, it is doubtful whether any testimony

from the husband regarding his ownership of the tools would have prompted the jury to

reach a different verdict. I find and conclude that the state appellate’s court resolution

of Applicant’s claim under the prejudice prong of Strickland was reasonable. Applicant

thus cannot prevail on claim (1)(a).

2. Failure to present evidence concerning the value of the tools

In claim (1)(b), Applicant alleges that counsel was ineffective in failing to

investigate and present evidence at trial from an impartial source concerning the value

of the tools recovered from the pawn shops. Applicant maintains that she was

prejudiced by the omitted evidence because the estimates of tool values given by the

Government’s witnesses made her crimes a felony.61 

60See generally State Court R., 8/29/05 Trial Tr., at 30-69.

61Doc. No. 5-8, at 20 of 33. 

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“[C]ounsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary. In any ineffectiveness case,

a particular decision not to investigate must be directly assessed for reasonableness in

all the circumstances, applying a heavy measure of deference to counsel's judgment.”62

At trial, the victim testified that the tools belonged to him.63 The victim further

valued the tools as follows: cordless drill (estimated fair market value of $75.00-$85.00);

four-foot level (estimated purchase price of $130.00-$140.00); field level (estimated fair

market value of $300.00-$350.00); Skil saw (estimated purchase price of $65.00);

Makita grinder (estimated purchase price of $70.00-$80.00); Makita chop saw

(estimated fair market value of $50.00 - $60.00); and, a Craftsman router (no estimate

given).64 One pawn shop witness testified that the estimated combined fair market

value of the four tools presented to him for resale was $250.00-$300.00.65 A second

pawn shop witness was unable to estimate the combined fair market value of the

cordless drill and the four-foot level, but he sold both items for $30.00.66 A third pawn

shop witness valued the field level at $250.00.67 

Applicant argued to the state appellate court that trial counsel should have called

an impartial witness from Sears or from a different pawn shop to refute the victim’s

62Strickland, 466 U.S. at 691.

63State Court R., 8/29/05 Trial Tr., at 42-45.

64Id.

65Id., 08/30/05 Trial Tr., at 9.

66Id. at 19-20.

67Id. at 24. 

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testimony concerning the purchase price value of some of the tools, instead of the fair

market value at the time the tools were pawned.68

Applying the Strickland standard,69 the Colorado Court of Appeals resolved this

claim against Applicant on the following grounds:

Diehl-Caine contends that defense counsel provided ineffective

assistance in failing to investigate and present evidence “from an impartial

source” about the cost of the tools stolen from the victim. We disagree.

The prosecution must prove the value of the stolen items beyond a

reasonable doubt. [state law citation omitted]. An owner is always

competent to testify as to the value of his or her property for purposes of

prosecuting theft. [Id.] The testimony must relate to the value of the

property at the time of the commission of the crime. [Id.].

Diehl-Caine has not shown that she was prejudiced by her lawyer’s

failure to provide evidence from an impartial source regarding the value of

the tools. Here, the prosecution presented testimony from the victim that

the value of the tools exceeded $500 or more. [Id.] Accordingly, the trial

court did not err when it rejected Diehl-Caine’s claim that defense counsel

failed to show evidence of the aggregate cost of the tools as less than

$500. Even if defense counsel had presented such evidence, Diehl-Caine

has not shown that it would likely have changed the result.70

Again, the state appellate court’s factual findings are correct and are supported

by the evidence presented at trial. The victim testified that the combined fair market

value of three of the seven tools pawned was approximately $425.00-$495.00. Two of

the pawn shop witnesses valued five of the tools at a fair market value exceeding

$500.00. In addition, the pawn shop witnesses testified that the value of the tools was

68Doc. No. 5-6, at 22-24 of 27; see also Doc. No. 7, at 13-14 of 15.

69Doc. No. 5-4, at 6-7 of 13.

70Doc. No. 5-4, at 9-10 of 13. 

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at least half of the purchase price.71 This evidence was sufficient to support the jury’s

verdict that Applicant was guilty of a class 4 felony, under § 18-4-410(4) (2004).72 

Moreover, Applicant did not provide the state courts with an affidavit from a Sears

employee or from a different pawn shop employee as to the value of the tools. As such,

her assertion that a defense witness would have placed the fair market value of the

tools below $500.00, and that the jury would have acquitted her based on that

testimony, is premised on speculation and conjecture, which cannot support the

prejudice prong of the Strickland inquiry.73 I find and conclude that the Colorado Court

of Appeals reasonably applied Strickland in resolving Applicant’s claim. Applicant

therefore is not entitled to federal habeas relief for claim (1)(b). 

3. Failure to support motion to disqualify prosecutor

 Finally, in claim (1)(d), Applicant asserts that trial counsel was ineffective in

failing to provide the trial court with evidence to substantiate the defense motion to

disqualify the District Attorney’s office from presenting the State’s case. 

71State Court R., 8/30/05 Trial Tr., at 9, 18, 24-25.

72At the time of Applicant’s conviction, Section 18-4-410(1), C.R.S. (2004), stated: “[A] person

commits theft by receiving when [s]he receives, retains, . . .or disposes of anything of value of another,

knowing or believing that said thing of value has been stolen, and when [s]he intends to deprive the lawful

owner permanently of the use or benefit of the thing of value.” Under the former statute, where the value

of the thing involved exceeded $500, but was less than $15,000, the offense was a class four felony. 

§ 18-4-410(4). If the value of the thing involved was less than $500, the offense was a class two

misdemeanor. §18-4-410(3) . 

73See United States v. Boone, 62 F.3d 323, 327 (10th Cir.1995) (“[A]ll that the Defendant urges is

speculation, not a reasonable probability that the outcome would have been different); see also Turrentine

v. Mullin, 390 F.3d 1181, 1205 (10th Cir. 2004) (petitioner “must show more than that his counsel's action

had ‘some conceivable effect on the outcome of the proceeding,’ because ‘[v]irtually every act or omission

of counsel would meet that test,’” quoting Strickland, 466 U.S. at 693 (alteration in original)). 

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The Colorado Court of Appeals rejected this claim in the state post-conviction

proceeding based on the following reasoning:

Diehl-Caine contends that defense counsel rendered ineffective

assistance in failing to present evidence to the trial court to support her

motion to disqualify the prosecution, specifically, that Deputy District

Attorney Jon Levin visited Diehl-Caine in jail, where they discussed her

pending case. Because Diehl-Caine did not establish that Levin’s visit

caused prejudice pursuant to Strickland v. Washington, we disagree. 

Here, Levin visited Diehl-Caine at the Mesa County Jail. As the

trial court properly noted, Diehl-Caine’s motion to disqualify was supported

by her affidavit in which she alleged that Levin met with her in the jail, but

did not allege that he discussed the details of the present case with her. 

Further, as the Diehl-Caine I division noted, Levin submitted a responsive

affidavit to the motion to disqualify in which he specifically denied that he

and Diehl-Caine had discussed her pending cased during the visit. Thus,

Diehl-Caine cannot establish prejudice under Strickland, because her

current assertions are insufficient to show that a different result would

have been likely had her trial counsel presented additional evidence in her

behalf.74

In order to succeed on his ineffective assistance of counsel claim, Applicant must

show that the motion to disqualify the district attorney's office and the particular attorney

who was prosecuting her was meritorious.75 The state appellate court held on direct

appeal of Applicant’s conviction that the record before the state trial court failed to

demonstrate that disqualification of the District Attorney’s Office was compelled by 

§ 20-1-107, C.R.S., to protect Applicant’s right to a fair trial.76 Applicant does not

challenge that ruling here. Furthermore, the state appellate court’s factual findings that

74Doc. No. 5-4, at 7-8 of 13. 

75See Kimmelman v. Morrison, 477 U.S. 365, 375, 382 (1986) (where alleged ineffective

assistance claim is based on counsel’s failure to file a motion to suppress, petitioner must show that the

underlying claim supporting motion has merit); accord Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir.

2003) (appellate counsel’s failure to raise a meritless issue on direct appeal does not constitute defective

performance). 

76See Doc. No. 18-1.

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there was no evidence before the trial court to show that the deputy district attorney

discussed Applicant’s cases during the jail visit are presumed correct. Although

Applicant now maintains that her counsel failed to provide the state trial court with

additional evidence to substantiate the motion to disqualify, she does not articulate any

details about the nature of the evidence or explain how it would have changed the state

trial court’s ruling. As such, she has failed to demonstrate that the additional evidence

would have rendered her motion to disqualify meritorious. Further, as the state courts

recognized, even if trial counsel rendered substandard performance with regard to the

motion to disqualify, the result would have been the appointment of a new prosecutor,

not a change in the outcome of Applicant’s trial.77 I find and conclude that the state

appellate court’s resolution of Applicant’s claim was consistent with Strickland. Claim

(1)(d) therefore will be denied. 

B. Apprendi claim 

Applicants asserts in claim two that the trial court violated her Sixth Amendment

right to trial by jury when the court adjudicated her a habitual criminal. 

In Apprendi v. New Jersey, 530 U.S. 455, 490 (2000), the Supreme Court held

that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” The Court’s exclusion of prior convictions from the

general rule was based on its prior decision in Almendarez-Torres v. United States, 523

U.S. 224 (1998), which held that recidivism need not be charged in an indictment in

77Doc. No. 5-4, at 8 of 13.

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order for a judge to use prior convictions to enhance a defendant's sentence. Apprendi,

530 U.S. at 487-88. The Apprendi Court mentioned the possibility that

Almendarez-Torres may have been “incorrectly decided.”78 However, the Supreme

Court has not overruled Almendarez-Torres.79

In the state post-conviction proceeding, the Colorado Court of Appeals

determined that Applicant’s second claim was without merit, based on the “prior

conviction” exception in Apprendi.80 I find and conclude that the state appellate court’s

determination that Applicant did not have a constitutional right to a jury trial on the

habitual offender charges was consistent with applicable Supreme Court law. Applicant

thus cannot prevail on her second claim.

IV. Order

Accordingly, it is

78Apprendi, 530 U.S. at 489. 

79See e.g. United States v. Booker, 543 U.S. 220, 244 (2005) (reaffirming the recidivism exception

announced in Apprendi ); see also United States v. Stiger, 413 F.3d 1185, 1192 (10th Cir. 2005) (rejecting

argument that Apprendi requires the jury, rather than the judge, to determine whether he had prior felony

convictions). 

80Doc. No. 5-4, at 5 of 13.

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ORDERED that Applicant Alice Diehl-Caine’s Application for a Writ of Habeas

Corpus Pursuant to 28 U.S.C. § 2254 (Doc. No. 1), filed September 12, 2011, is denied

and this action is dismissed with prejudice. It is

FURTHER ORDERED that a certificate of appealability shall not issue because

Applicant has not made a substantial showing of the denial of a constitutional right.81

Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal

from this order would not be taken in good faith and therefore in forma pauperis status

will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438

(1962). If Applicant files a notice of appeal she must also pay the full $455 appellate

filing fee or file a motion to proceed in forma pauperis in the United States Court of

Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24. 

Accordingly, it is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is

denied. 

Dated at Denver, Colorado, this 25th day of April , 2012. 

BY THE COURT:

s/ David M. Ebel

 

David M. Ebel

Senior Circuit Judge

8128 U.S.C. § 2253(c)(2); Fed. R. Governing Section 2254 Cases 11(a); Slack v. McDaniel, 529

U.S. 473, 483–85 (2000).

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