Sue v. Kline
662 F. App'x 604
| 10th Cir. | 2016Background
- In 2003 Simon Sue pleaded guilty to multiple counts in Colorado in a deal stipulating total sentence between 40 and 60 years plus five years parole; at plea and sentencing counsel discussed sentencing ranges and appeal rights.
- The trial court found aggravating circumstances and imposed concurrent 45-year terms on conspiracy counts plus an 8-year consecutive COCA term (within stipulated range) in August 2003.
- Post‑sentencing, Sue’s retained counsel filed a Rule 35(b) motion to reduce sentence; later counsel moved to amend raising Blakely arguments; Sue ultimately pursued a Rule 35(a) motion pro se and later Rule 35(c) post‑conviction petitions alleging ineffective assistance for failing to file a direct appeal.
- State courts held Sue’s earlier Rule 35(a)/(b) challenge precluded later relief and, in Sue III, rejected his ineffective‑assistance‑of‑counsel (IAC) claim on the merits, crediting counsel’s testimony that they consulted Sue and made a strategic choice to pursue Rule 35 relief rather than an immediate appeal.
- Sue filed a federal habeas petition under 28 U.S.C. §2254 arguing counsel violated Flores‑Ortega by not filing an appeal and by failing to advise him of appellate options; the district court denied relief and declined a COA; Sue appealed to the Tenth Circuit.
- The Tenth Circuit applied AEDPA deference to state‑court fact findings, found no clear and convincing evidence to rebut those findings, and denied a certificate of appealability, concluding counsel’s conduct was not unreasonable under Flores‑Ortega/Strickland.
Issues
| Issue | Plaintiff's Argument (Sue) | Defendant's Argument (State / Counsel) | Held |
|---|---|---|---|
| Whether trial counsel rendered deficient performance by failing to file a direct appeal after sentencing | Sue: He asked counsel to appeal and/or demonstrated interest in appeal; counsel failed to file despite nonfrivolous appellate issues | Counsel: They consulted Sue, pursued Rule 35 strategy as reasonable tactical choice, and would have retained appellate counsel if specifically asked | Court: No COA. State court reasonably found no deficient performance under Flores‑Ortega/Strickland given consultation and strategic decision |
| Whether counsel failed to advise Sue adequately of appellate options | Sue: Counsel did not explain appellate options or the 45‑day appeal deadline, denying effective assistance | Counsel: They discussed post‑conviction options with Sue and family and pursued an avenue (Rule 35) deemed more likely to succeed and less risky | Court: Held counsel consulted and advised sufficiently; factual findings to that effect are unrebutted and plausible |
| Whether the state courts’ resolution merits AEDPA deference or was procedurally barred/successive | Sue: Some prior state denials were procedural; therefore federal review should not be AEDPA‑deferential | State: The later Sue III decision adjudicated the IAC claims on the merits and applied Strickland/Flores‑Ortega; AEDPA applies | Court: AEDPA deference applies; state courts reached the merits of the IAC claim in Sue III and findings stand |
| Whether reasonable jurists could debate the district court’s denial (i.e., whether COA should issue) | Sue: Reasonable jurists could disagree because Flores‑Ortega protects a defendant’s right to an appeal and counsel ignored his instruction/interest | Respondent: The record supports counsel’s consultation and strategy; no clear prejudice or deficiency shown | Court: Denied COA — reasonable jurists could not debate correctness given doubly deferential Strickland/AEDPA review |
Key Cases Cited
- Roe v. Flores‑Ortega, 528 U.S. 470 (2000) (counsel’s duty to consult about appeals and standards when defendant expresses interest)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance test—performance and prejudice)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (limits on judge‑found facts increasing punishment)
- Blakely v. Washington, 542 U.S. 296 (2004) (application of Apprendi principles to sentencing procedures)
- Harrington v. Richter, 562 U.S. 86 (2011) (doubly deferential standard for Strickland claims on habeas review)
- Cullen v. Pinholster, 563 U.S. 170 (2011) (habeas review limited to state‑court record for AEDPA review)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standard for granting a certificate of appealability)