Acosta v. Raemisch, 877 F.3d 918

Background

Gabriel Acosta and Chante Dillon killed their roommate; Patricia Medina was the only eyewitness and gave a recorded statement and two depositions but later disappeared.
Medina was jailed for failing to appear, deposed twice (cross-examined by both defendants’ counsel), released on conditions, then failed to report and evaded authorities.
Medina’s deposition transcripts were admitted at Acosta’s trial after the trial court found her “unavailable”; Acosta was convicted of first-degree murder and sentenced to life without parole.
On direct appeal the Colorado Court of Appeals (CCA) held the prosecution made good-faith efforts to produce Medina and that Acosta was not denied counsel at two pretrial hearings (March 31 waiver of speedy trial; April 6 release of Medina).
Acosta filed a §2254 habeas petition; the district court found the CCA unreasonable on both unavailability and right-to-counsel issues but denied relief as errors were not structural or harmful; the Tenth Circuit affirms the denial of habeas relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Confrontation Clause — unavailability of witness	Medina was not truly unavailable; prosecution failed to make sufficient, timely efforts to locate her	Prosecution made reasonable, good-faith efforts (searched last addresses, post office, enlisted SCAT, contacted family)	CCA reasonably found good-faith efforts; Medina unavailable, admission of deposition did not violate Confrontation Clause
Right to counsel — March 31 waiver of speedy trial	Waiver occurred without counsel present; denial of counsel at that hearing violated Sixth Amendment	Trial court adequately advised Acosta; waiver was knowing and voluntary; any absence was harmless	Even assuming error, not structural; no contamination of entire trial; harmless under habeas standards
Right to counsel — April 6 release-of-witness hearing	Acosta (and district court) say releasing key witness without counsel present was a critical-stage denial	State says the April 6 proceeding was ministerial, not a critical stage; counsel presence not required	CCA reasonably treated the hearing as non-critical; if error assumed, it was not structural and was harmless
Harmless vs. structural error standard on habeas	District court applied incorrect harmlessness test and wrongly found non-structural	State: CCA reasonably applied law; Brecht is the correct habeas standard but CCA’s conclusions stand	Tenth Circuit assumes some errors but holds none were structural and any error was harmless under Brecht; affirms denial of §2254 relief

Key Cases Cited

Pointer v. Texas, 380 U.S. 400 (recognizing Sixth Amendment confrontation right applicable to states)
Crawford v. Washington, 541 U.S. 36 (testimonial hearsay inadmissible unless witness unavailable and prior opportunity for cross-examination)
Ohio v. Roberts, 448 U.S. 56 (unavailability requires good-faith, reasonable efforts to produce witness)
Barber v. Page, 390 U.S. 719 (prosecution failed to make good-faith efforts where it made virtually no attempt to secure incarcerated witness)
Brecht v. Abrahamson, 507 U.S. 619 (habeas harmless-error standard: whether error had substantial and injurious effect)
Williams v. Taylor, 529 U.S. 362 (AEDPA standard for unreasonable application of clearly established federal law)
Harrington v. Richter, 562 U.S. 86 (even a strong case for relief does not mean state-court decision was unreasonable under AEDPA)
Cronic, 466 U.S. 648 (circumstances where denial of counsel can be presumed prejudicial)
Hardy v. Cross, 565 U.S. 65 (per curiam) (reaffirming Roberts as governing law for unavailability under AEDPA)