Ellis v. Raemisch
872 F.3d 1064
| 10th Cir. | 2017Background
- Mark Ellis was convicted in Colorado (2002) of multiple sexual-assault offenses against his adopted daughter V.E.; convictions affirmed on direct appeal.
- Defense at trial argued false accusation caused by parental alienation and that an older brother had abused V.E.; counsel Rowe Stayton relied on cross-examination and a forensic scientist but did not call a forensic-psychology expert or several family/lay witnesses.
- Ellis later filed a Colorado postconviction motion alleging Strickland ineffective assistance for failing to consult/call an expert and several lay witnesses; the state district court held an evidentiary hearing, credited much defense testimony (including Stayton’s), but denied relief; the Colorado Court of Appeals (CCA) affirmed and Ellis did not seek Colorado Supreme Court review.
- Ellis filed a federal habeas petition under 28 U.S.C. § 2254; the federal district court found counsel’s performance deficient and prejudicial, granted conditional habeas relief, and ordered retrial within 90 days or release.
- The State appealed; the Tenth Circuit held Ellis had exhausted state remedies under Colorado Appellate Rule 51.1 but reversed the district court on the ineffective-assistance merits, concluding the CCA’s performance rulings were not unreasonable and that Ellis failed to show prejudice even under de novo review for the one assumed error (failure to consult/call Dr. Long).
- Result: the Tenth Circuit reversed the conditional habeas grant and directed entry of judgment denying relief; it did not reach the propriety of the 90-day retrial condition as moot.
Issues
| Issue | Ellis’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether Ellis exhausted state remedies for his Strickland claim | Rule 51.1 deems CCA denial exhaustion; no need to petition CO Supreme Court | O’Sullivan requires presenting claims to state supreme court (absent state rule) | Held: Ellis exhausted; Rule 51.1 renders CO Supreme Court review “unavailable” for AEDPA exhaustion purposes |
| Whether trial counsel was constitutionally deficient for not consulting/calling a forensic-psychology expert | Failure to use an expert to explain parental alienation and memory dynamics was deficient | Stayton reasonably relied on his own expertise and elicited the themes via cross-examination; calling an expert risked adverse expert clash | Held: CCA’s conclusion that the decision was strategic and not deficient was reasonable; no Strickland performance error |
| Whether counsel’s failure to consult/call Dr. Long (V.E.’s former psychologist) was prejudicial | Dr. Long could have testified V.E. never disclosed abuse to him, undermining credibility | Non-disclosure is not strongly exculpatory; record unclear whether Dr. Long treated V.E. during the abuse period | Held: Even under de novo review, Ellis failed to show a reasonable probability of a different outcome; no prejudice |
| Whether district court improperly relied on additional unexhausted IAC grounds (e.g., failure to secure further forensic tests) | District court’s broader assessment supports relief on cumulative grounds | Those additional grounds were not raised in state court and are procedurally defaulted | Held: District court erred in considering unexhausted/procedurally defaulted claims; appellate court reversed the habeas grant |
Key Cases Cited
- O’Sullivan v. Boerckel, 526 U.S. 838 (1999) (AEDPA exhaustion requires presenting claims to state supreme court unless state law makes that remedy unavailable)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficient performance and prejudice)
- Harrington v. Richter, 562 U.S. 86 (2011) (highly deferential AEDPA review of state-court Strickland rulings; doubly deferential standard)
- Byrd v. Workman, 645 F.3d 1159 (10th Cir. 2011) (describes AEDPA standards and review for Strickland claims)
- Coleman v. Thompson, 501 U.S. 722 (1991) (procedural-default doctrine bars federal review where state remedy is no longer available)
- Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999) (state rule making discretionary review unnecessary renders supreme court review unavailable for exhaustion)
- Randolph v. Kemna, 276 F.3d 401 (8th Cir. 2002) (gives effect to state rule excluding supreme court review from ‘‘one complete round’’ for exhaustion)
- Adams v. Holland, 330 F.3d 398 (6th Cir. 2003) (Tennessee rule held to render state supreme court review unavailable for AEDPA exhaustion)
- Lambert v. Blackwell, 387 F.3d 210 (3d Cir. 2004) (Pennsylvania rule rendering supreme-court rehearing unnecessary satisfies O’Sullivan’s exception)