Free Amended Answer to Complaint - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-01072-ZLW-BNB JOHN E. LOPEZ, Applicant, v. CARL ZENON, and JOHN W. SUTHERS, The Attorney General of the State of Colorado, Respondents. AMENDED ANSWER

JOHN W. SUTHERS Attorney General CHERYL HONE* Assistant Attorney General Appellate Division Criminal Justice Section Attorneys for Respondents 1525 Sherman Street, 5th Floor Denver, Colorado 80203 D.C. Box No. 20 Telephone: (303) 866-3134 *Counsel of Record

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-01072-ZLW-BNB JOHN E. LOPEZ, Applicant, v. CARL ZENON, and JOHN W. SUTHERS, The Attorney General of the State of Colorado, Respondents. AMENDED ANSWER Respondents, by the Attorney General of the State of Colorado, respond to applicant's Amended Petition Pursuant to 28 U.S.C. Section 2254 as follows. General Denial The allegations in the Amended Petition Pursuant to 28 U.S.C. Section 2254 are denied except as specifically admitted herein. Custody Applicant, John E. Lopez (Lopez), is currently incarcerated for the state court conviction at issue here at the Arkansas Valley Correctional Facility of the Colorado Department of Corrections. He thus meets the jurisdictional requirement of custody. See 28 U.S.C. §§ 2241(c)(3), 2254(a).

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Availability of State Court Record With the exception of the items previously provided to this Court, the state court record is in the custody of the Adams County District Court. It can be obtained upon order directly to that court if this Court so desires. State Court Proceedings The crime In January 1993, Lopez's stepfather agreed to hold some cash and jewelry for a relative who had been arrested for selling drugs. Lopez was then living with his mother (Mrs. Lopez) and stepfather in Commerce City, Colorado. In February, Lopez moved out. The next month, March 1993, the house was burglarized, and Lopez's stepfather was brutally beaten and stabbed to death. The perpetrators took a safe containing $170,000 in cash and jewelry. People v. Lopez, 946 P.2d 478, 480 (Colo. App. 1997) (ex. D); ex. N, pp. 1-3. The confession The police immediately suspected Lopez and his friend, Lawrence Sandoval (Sandoval), but did not have the evidence to arrest them. Lopez, 946 P.2d at 480. Mrs. Lopez was also convinced that Lopez was involved in the murder. She and the investigating officer discussed it often, but Lopez and Sandoval would not talk to her. Ex. B, pp. 11-12. In July 1993, Mrs. Lopez lost her patience with the two young men. She noticed Lopez and Sandoval in Sandoval's car in the parking lot of a grocery store and pounded with her fists on the closed car windows, screaming that Lopez and Sandoval were going to die. Id. at 12. Two days later, outside of Lopez's wife's house, she pointed a gun at Lopez's head 2

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and threatened to kill him, herself, and his sister, unless he talked to the police. Lopez, 946 P.2d at 480. Three days after that, Lopez did go speak to the lead detective about the murder. He spent that day at the police station and then returned there each of the next four days to answer questions. His mother attended the interrogation sessions and asked her own questions. Id. Ultimately, Lopez admitted participating in the burglary/murder. Id. He also led police to the discarded jewelry from the victim's safe. R. vol. 25, pp. 59-63. The charges and first trial Lopez was charged with first-degree murder (felony murder), two counts of seconddegree burglary, two counts of theft, and robbery. Ex. B, p. 3. A jury convicted him of firstdegree murder, one count of second-degree burglary, one count of theft, and one count of robbery. Id. The main evidence against him was his confession. Lopez, 946 P.2d at 480. He was sentenced to life in prison. Ex. B, p. 3. The first appeal The Colorado Court of Appeals (court of appeals) reversed Lopez's conviction. It held that the trial court had erroneously excluded the testimony of Lopez's expert witness. Lopez, 946 P.2d at 482-85. But the court of appeals rejected Lopez's claim that his statement was involuntary. Id. at 481-82.

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Both Lopez and the People sought certiorari review from the Colorado Supreme Court. Both petitions were denied on November 10, 1997.1 The second trial The second jury trial occurred in October 1998. Lopez was again convicted of firstdegree murder and robbery. He pled guilty to second-degree burglary and theft. He was again sentenced to life in prison. Ex. C, p. 5. On direct appeal from that conviction, Lopez argued that the prosecution improperly challenged prospective jurors based on their race. The court of appeals rejected that argument and affirmed the conviction. People v. John E. Lopez, No. 98CA2474 (Colo. App. Dec. 7, 2000) (not selected for publication) (ex. H). The Colorado Supreme Court denied certiorari on April 23, 2001 (ex. I), and the court of appeals issued its mandate on May 7, 2001. Ex. J. The postconviction motion On or about October 31, 2001, Lopez filed a motion for postconviction relief under Colo. R. Crim. Proc. 35(c). Ex. K. He argued that he received ineffective assistance of trial counsel because the Public Defender's Office (PD) failed to move before his second trial to suppress his confession and because the PD had a conflict of interest. Id. at 3-6. The trial court denied the motion on November 8, 2001. Ex. L.

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Lopez's petition for certiorari and the supreme court's denial of certiorari are no longer in the Attorney General's files and are therefore not attached as exhibits to this pleading. 4

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The court of appeals affirmed the trial court's order on August 7, 2003. People v. John Lopez, No. 01CA2516 (Colo. App. Aug. 7, 2003) (not published pursuant to C.A.R. 35(f)) (ex. O). Certiorari was denied on January 20, 2004 (ex. P), and the court of appeals issued its mandate on January 26, 2004. Ex. Q. This Petition In this proceeding, Lopez repeats the claim that he made in state court that his confession was involuntary and should have been suppressed. He adds a claim that he is actually innocent because the confession was coerced and should have been suppressed and, without the confession, no reasonable jury would convict him. Defenses Statute Of Limitations The first claim in this petition is timely filed under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), but the second claim, to the extent that it raises Lopez's actual innocence, is barred. The AEDPA established a one-year limitation period for habeas corpus petitions. 28 U.S.C. § 2244(d). This period begins to run when the judgment becomes final or on the date on which the factual predicate of the claim could have been discovered with due diligence: (1) A 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from . . . --

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(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; [or] .... (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Id. The period is tolled by any properly filed postconviction proceedings: The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d)(2). In this case, the Colorado Supreme Court denied certiorari in Lopez's direct appeal from his second conviction, the one at issue here, on April 23, 2001. Ex. I. The judgment became final on July 23, 2001, ninety days later,2 when the time expired in which to seek certiorari from the United States Supreme Court. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999), cert. denied, 528 U.S. 1084 (2000). The statute of limitations then began to run. Lopez's postconviction motion is dated October 31, 2001 (ex. K), 100 days later. The statute then stopped running. The postconviction motion was pending until the Colorado Supreme Court denied review on January 20, 2004 (ex. P), and the statute began running again.

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Actually, July 23 is ninety-one days later, but July 22, 2001, was a Sunday. 6

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Lopez dated the pro se petition he filed in this Court May 9, 2004, 110 days later. Thus, in total, 210 days elapsed between the date Lopez's conviction became final and the date of his petition that were not tolled by the statute of limitations. Since this is less than the one-year limitation period, his pro se petition was timely filed. Lopez filed his amended petition on August 14, 2006, 827 days after his original petition. There was no tolling during this time. Thus, unless the claims raised in the amended petition relate back to the original petition, they are barred by the one-year statute of limitations. Habeas petitioners can amend their petitions, even if the amendment is filed outside of the statute of limitations, as long as the claims relate back to those timely raised. Mayle v. Felix, ___ U.S. ___, 125 S. Ct. 2562, 2566 (2005). This relation back is governed by Fed. R. Civ. Proc. 15(c)(2), which provides that pleading amendments relate back to the date of the original pleading when the claim asserted in the amended pleading "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." This does not mean that the claim need only relate to the habeas petitioner's trial, conviction, or sentence. This would be too broad a definition. Mayle, 125 S. Ct. at 2566. Instead, relation back is allowed "only when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in both time and type from the originally raised episodes." Id. at 2571 (internal quotation marks omitted).

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Here, the amended petition raises two claims. The first claim is that applicant's confession was involuntary. This is the very claim that applicant raised pro se, within the time limitations provided by 28 U.S.C. § 2244(d). Thus, this claim relates back to the original petition and is not barred by the statute of limitations. However, applicant also raises for the first time in the amended petition a claim that he is actually innocent. This claim "depends on events separate in both time and type," Mayle, 125 S. Ct. at 2571, from the originally raised claim. In order to establish his actual innocence, applicant must prove that his confession was not only inadmissible, but unreliable. Indeed, he must show that it is so unreliable that no reasonable juror would find him guilty on the basis of that confession and the other evidence in the case. See infra, Point II. Aside from the fact that applicant cannot make this showing, see id., the claim depends on facts both related and not related to the voluntariness of the confession. It is therefore barred by the statute of limitations. Under some circumstances, a habeas applicant is entitled to equitable tolling of the statute of limitations. Equitable tolling is only available, though, when the applicant has been diligently pursuing his rights and some extraordinary circumstance stood in the way of filing the claim timely. Pace v. DiGuglielmo, 544 U.S. 408, ___, 125 S. Ct. 1807, 1814 (2005).3 No extraordinary circumstance prevented applicant from claiming his actual innocence before the statute of limitations ran out.

Pace did not actually adopt equitable tolling for the AEDPA's statute of limitations. Rather, it assumed without deciding that such tolling was available. Pace, 125 S. Ct. at 1814 n.8. 8

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Actual innocence itself can justify equitable tolling, but only when the applicant can show that he is actually innocent, uncontrollable circumstances prevented him from timely filing, and the applicant diligently pursued his federal habeas claims. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000); see also Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (noting that equitable tolling will apply where a constitutional violation will result in the conviction of someone actually innocent). Again, no extraordinary circumstance prevented applicant from timely asserting a claim of actual innocence. Finally, applicant could argue that the statute should not run from the date the conviction became final, but the date on which "the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). This Court assigned an investigator to applicant after the statute of limitations had run. However, this investigator discovered nothing that could not have been discovered long before with due diligence. The investigator interviewed applicant's mother, who obviously was available not just before the statute of limitations ran for his habeas corpus petition, but throughout the state court proceedings. Indeed, she testified at the pretrial suppression hearing in state court. Hence, the date on which the factual predicate of applicant's claim could have been discovered with due diligence precedes the date on which applicant's conviction became final. Exhaustion of state remedies In order to exhaust a claim in state court to preserve it for review in federal habeas corpus proceedings, a petitioner must have presented his claim to the highest state court with 9

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jurisdiction to hear it. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). Lopez's general claim that his statements should have been suppressed as involuntary is exhausted, since he presented it on appeal from his first conviction, and it then became the law of the case. See People v. Allen, 885 P.2d 207, 211-12 (Colo. 1994) (appellate suppression ruling bound subsequent appellate court). However, Lopez presents new evidence in support of his claim in the form of statements by Lopez's mother to his current investigator. To fairly present a claim to the state courts, a habeas applicant must have presented both the legal and factual predicate of the claim. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (applicant's allegations and supporting evidence must offer the state courts "a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim" (internal quotation marks omitted)). "Therefore, although a habeas petitioner will be allowed to present `bits of evidence' to a federal court that were 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." Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997); see also Joyner v. King, 786 F.2d 1317, 1320 (5th Cir. 1986) (noting that a habeas petitioner who presents a weak case to the state court and a strong case to the federal court fails to satisfy the exhaustion requirement). In order to satisfy the exhaustion requirement, new evidence must not "fundamentally alter the legal claim already considered by the state courts." Vasquez v. Hillery, 474 U.S. 254, 260 (1986). 10

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Here, Lopez's new evidence makes his claim significantly stronger that his mother was acting as a government agent when she questioned him at the police station. Indeed, this new evidence "fundamentally alter[s] the legal claim already considered by the state courts." Id.; see also Graham v. Johnson, 94 F.3d 958 (5th Cir. 1996) (presenting abundant new evidence to federal habeas court rendered claim unexhausted). Assuming that Lopez could show that he could not have previously obtained this new evidence by acting with due diligence,4 he could present it in state court under Rule 35(c) of the Colorado Rules of Criminal Procedure as part of a newly discovered evidence claim. Colo. R. Crim. Proc. 35(c)(2)(V). Based on the new facts, therefore, the claim is unexhausted and cannot be reviewed in this Court. See 28 U.S.C. § 2254(b)(1). Similarly, it is possible that Lopez could present his claim that he is actually innocent to the state courts under Colo. R. Crim. Proc. 35(c)(2)(V). However, because a freestanding innocence claim is not cognizable under section 2254 in non-capital cases, and Lopez does not seek to use this claim as a "gateway" through which an otherwise procedurally defaulted claim could be reviewed, see infra, Point II, any failure to exhaust this claim should not result in the dismissal of the petition without prejudice, but in the denial of the claim on the merits. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").

If Lopez cannot make that showing, then he is not entitled to present this evidence for the first time in federal court, either. See infra, Point I(A). 11

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The Merits On their merits Lopez's claims fail. Under the AEDPA, only state court decisions that are 1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or 2) based on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," justify granting relief under 28 U.S.C. § 2254(d). A state court decision is contrary to United States Supreme Court precedent only when it "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a[n] [opposite] result." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision may not be set aside merely because it is incorrect. Id. at 406. Rather, a state court decision may be set aside only if it applies a legal standard that is "diametrically different" from, "opposite in character or nature" from, or "mutually opposed" to the correct legal standard. Id. A state court decision constitutes an unreasonable application of Supreme Court case law if the state court identified the correct governing legal principles but unreasonably applied that principle to the facts of the prisoner's case. Id. at 407. Again, the question is not whether the state court decision was incorrect, but whether it was "objectively unreasonable." Id. at 409. There is a presumption of correctness for facts found by state courts, which applies to both trial and appellate courts. 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 455 U.S. 591, 59212

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93 (1982) (per curiam). That presumption can only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Here, applicant has failed to show that the state court decision was either contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). He is therefore not entitled to a writ of habeas corpus. I. The Colorado Court of Appeals reasonably determined that Lopez's statement was voluntary.

The Colorado Court of Appeals held that the record supported the trial court's determination that, "although coercive techniques were used at various points in the interrogation, [Lopez's] final statements regarding his role in the offenses nevertheless were voluntary and did not result from coercive police tactics." Lopez, 946 P.2d at 481. This was a legal conclusion that was neither "contrary to, [n]or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d); see Miller v. Fenton, 474 U.S. 104, 110 (1985) (ultimate question of statement's voluntariness is an issue of law). Nor was the court of appeals' holding "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A. Finding that Mrs. Lopez was acting as a private citizen was a reasonable determination of the facts.

The United States Supreme Court held in Colorado v. Connelly, 479 U.S. 157, 166 (1986), that the exclusionary rule does not bar the admission of confessions induced by 13

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private parties, no matter how coercive their interrogation techniques might have been. To find a due process violation, government action must have coerced the defendant into confessing. Id. at 167. Here, much of the conduct that defendant complains was coercive was that of his mother. She was not a police officer. However, the Supreme Court has held, in the search and seizure context, that a private person is considered an agent of the police when, under the totality of the circumstances, that person must be regarded as having acted as an instrument or agent of the state. Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971) (plurality opinion). More specifically, when the police coerce, dominate, or direct a person's actions, that person is considered an agent of the state. Id. at 489. The Supreme Court has not elaborated further, but the Tenth Circuit uses a two-prong test, which asks "1) whether the government knew of and acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends." Pleasant v. Lovell, 876 F.2d 787, 797 (10th Cir. 1989) (quoting United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982)). "[K]nowledge and acquiescence, as those terms are used in Pleasant and the cases cited therein, encompass the requirement that the government agent must also affirmatively encourage, initiate or instigate the private action." United States v. Smythe, 84 F.3d 1240, 1243 (10th Cir. 1996). Of course, the Tenth Circuit test is not "clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1); see Lockyer v. Andrade, 538 U.S. 63, 7172 (2003) ("`[C]learly established Federal law' under § 2254(d)(1) is the governing legal 14

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principle or principles set forth by the Supreme Court at the time the state court renders its decision."). Nevertheless, it is a useful guide, especially since the Colorado Court of Appeals applied that test here in affirming the trial court's finding that Mrs. Lopez was acting as a private citizen, not an agent of the police. Lopez, 946 P.2d at 482. Applicant admits that whether Mrs. Lopez was acting as a police agent is a question of fact, subsidiary to the ultimate legal conclusion that the confession was voluntary. Am'd Application, p. 11; see Miller, 474 U.S. at 112, 117; United States v. Humphrey, 208 F.3d 1190, 1203 (10th Cir. 2000) (on direct review, district court's factual finding that person was not acting as government agent will be reversed only for clear error). He has failed to present clear and convincing evidence that the state courts' conclusions were unreasonable in this regard. See 28 U.S.C. § 2254(e)(1). Mrs. Lopez and the lead detective investigating her husband's murder remained in close contact from the time he was killed. Mrs. Lopez was terribly distraught and wanted her husband's killer brought to justice. But that does not mean that she was the equivalent of a law enforcement agent. Cf. Humphrey, 208 F.3d at 1203 (witness working with police to catch drug suspects and supply evidence was not de facto police officer). There was no evidence that the police knew that Mrs. Lopez intended to accost Lopez in the grocery store parking lot or point a gun at his head, or that the investigating officer acquiesced in these activities. The trial court found to the contrary: Clearly the Court finds that what occurred prior to the 12th of July is not attributable to the police. Debbie Lopez, when she, in her own words, got in the face of her son, either at the King 15

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Soopers or at her son's house, was acting alone. No indication that that conduct was known or authorized, in any fashion, by the police, or known or authorized by the police, at least as far as the incident which occurred at his house, even during the entirety of the -- of the interview. Ex. A, p. 57. That she may have intended to assist the police is not enough; the police must also have been involved in her conduct. See United States v. Leffall, 82 F.3d 343, 347 (10th Cir. 1996) (both prongs of the 2-prong test must be satisfied before there is state action); cf. United States v. Johnson, 4 F.3d 904 (10th Cir. 1993) (defendant's accomplice was not agent of police when he recorded defendant's conversations because while he wanted to cooperate with government, government did not initiate contact with him, offer him benefit for his cooperation, advise or instruct him, or assist him in recording the conversations), cert. denied, 510 U.S. 1123 (1994). Similarly, Mrs. Lopez remained a private citizen during the questioning, even though the investigating officer was then present and obviously aware of her conduct. That Mrs. Lopez's presence benefited police does not mean that she relinquished her status as a private citizen. And while the investigating officer may have made it easier logistically for Mrs. Lopez to attend the questioning sessions, it was Lopez who wanted his mother to join him and the officer. Lopez chose specifically to include her. Ex. C, pp. 9, 12; R. vol. 25, pp. 27, 34, 48, 56; R. vol. 26, p. 5. The officer did allow Mrs. Lopez to ask questions, even encouraged her to do so, but he did not instruct her to ask any question in particular. Ex. B, pp. 13-14; R. vol. 25, pp. 44-

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45. The only direction he gave her was that her questions were "very good." Id. at 14; R. vol. 25, pp. 96, 98. Given these facts, it was not unreasonable for the trial court and court of appeals to conclude that Mrs. Lopez was not acting as an agent of the police. Lopez relies on facts outside of the record to argue to the contrary. He asserts that an investigator's recent interview with Mrs. Lopez revealed the following facts: 1. Commerce City police officers visited Mrs. Lopez every day for several hours a day over the course of the months following her husband's murder in an attempt to have her convince her son to come to the police station. The police also initiated telephone contact with Mrs. Lopez every day. 2. The police asked Mrs. Lopez to seek a confession from Lopez. 3. The police provided Mrs. Lopez with "specific information and strategy as to how she could coax her son to confess" to the murder. They provided her with specific examples of how to obtain a confession. 4. Mrs. Lopez informed the police about threatening Lopez with a .22-caliber pistol, and police complimented her in pursuing this tactic. 5. Pounding on the hood of Sandoval's car in the supermarket parking lot was pursuant to instructions provided by the police in an attempt to apply pressure to her son to solicit a confession. 6. At the police station, police instructed Mrs. Lopez with specific information to convey to Lopez in an attempt to coax a confession. 17

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7. During the five days of interrogation, police met with Mrs. Lopez and instructed her on what she could do to facilitate Lopez's confession. "Every evening she was briefed and then debriefed in the morning by the police" before further interrogation commenced. She was instructed on what specific questions to ask to induce a confession. During breaks in the questioning and lunch, police provided further instruction. The problem with this information is that it is not a part of the record of the case. Lopez has not sought to expand the record under Rule 7 of the Rules Governing Section 2254 Cases. Even if he had done so, such an application would have to be denied. First, the types of materials that can be used to expand the record do not include hearsay information from an investigator. Rather, "[t]he materials that may be required include letters predating the filing of the petition, documents, exhibits, and answers under oath to written interrogatories propounded by the judge. Affidavits may also be submitted . . . ." Rule 7(b), Rules Governing Section 2254 Cases. Also, these materials have to be reviewed by the opposing party before the judge admits them as part of the record. Rule 7(c), Rules Governing Section 2254 Cases. Second, the purpose of the rule allowing expansion of the record is "to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing." Rule 7, Rules Governing Section 2254 Cases, Advisory Committee Notes 1976. Even Lopez does not contend that this Court can just accept as facts Mrs. Lopez's statements to his investigator. Rather, a hearing would be necessary to test the veracity of those statements. However, a hearing is not available in this instance. Under section 2254(e)(2): 18

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If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that -- (A) the claim relies on -- (i) a new rule of constitutional law . . .; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. (emphasis added). Lopez highlights section 2254(e)(2)(B), Am'd Application at p. 17, but he neglects to discuss subsection (A), which is required before an evidentiary hearing may be held in a habeas corpus proceeding. See Bland v. Simmons, 2006 WL 2171516, at *30 (10th Cir. 2006) (both prongs (A) and (B) must be met before an evidentiary hearing may be held under § 2254(e)(2)). There is no question but that Lopez cannot meet the requirements of section 2254(e)(2)(A). Even he does not argue that his claim relies on a new rule of constitutional law. And he cannot show that he could not have previously presented these facts with the exercise of due diligence. Indeed, Mrs. Lopez testified at the suppression hearing in state court. R. vol. 27, pp. 12-34. Lopez was represented by able counsel who questioned both Mrs. Lopez and the detective extensively on their relationship and possible collusion. Notably, the evidence in the state court proceeding contradicts the information now presented. Mrs. Lopez testified at that time that Detective Dougherty and she kept in close 19

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contact after the murder and spoke with each other at least three times per week. R. vol. 27, p. 13. Detective Dougherty explained that the majority of their conversations concerned Mrs. Lopez's welfare. R. vol. 25, p. 86. From the beginning, the detective thought that Lopez and Sandoval were responsible for the murder. R. vol. 27, p. 14. He expressed frustration that Lopez and Sandoval would not talk to him. Id. When Mrs. Lopez told the detective just to knock on Lopez's door, the detective replied that he could not do that. Id. at 15. Mrs. Lopez suggested that she could knock on his door, and the detective replied that he could not tell her what to do. Id. Detective Dougherty testified at the hearing that while he spoke to Mrs. Lopez several times between the murder and Lopez's confession, and he told her that he needed to talk to Lopez, he never urged her to bring Lopez in to talk to him. R. vol. 25, pp. 83-84. Mrs. Lopez did not testify that the police had instructed her to pound on Sandoval's car in an attempt to coerce a confession from Lopez. Rather, she testified that she unexpectedly ran into Sandoval and Lopez at the supermarket parking lot. R. vol. 27, p. 17. She expressly disclaimed the notion that she had pounded on Sandoval's car at the detective's direction. Id. at 26. She notified the police after the fact about her encounter with them. Id. at 21. She testified that she did not mention that she had a gun until later, and that when she did, the detective advised her not to "do anything stupid." Id. She could not recall if she had ever told the detective that she had threatened Lopez's life. Id. at 24. Again, she testified specifically that the detective did not direct her actions the day that she

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confronted Lopez with a gun. Id. at 27. The detective testified that he never learned until the date of the hearing that Mrs. Lopez had threatened Lopez with a gun. R. vol. 25, pp. 85, 87. As for being coached at the station about how to interrogate Lopez effectively, Mrs. Lopez merely stated that she and the detective discussed showing the victim's autopsy photograph to Lopez before the detective did so. R. vol. 27, p. 22. Mrs. Lopez stopped questioning Lopez after the first two days of interrogation. Id. at 29. She was not even in the room when Lopez finally confessed and offered to take the police to the jewelry. Id. at 30. Detective Dougherty testified that while he allowed Mrs. Lopez to ask questions, and even told her at one point that she was asking very good questions, he never told her what to ask or gave her any instructions on how to conduct the investigation. R. vol. 25, pp. 24, 44-45, 96, 98. "[S]he just started talking." Id. at 44. Further, while Mrs. Lopez testified that she and Lopez discussed what had happened during the interrogation each day after they left, R. vol. 27, p. 22, she, Detective Dougherty, and Lopez's grandmother all testified that Lopez was staying nights with his grandmother during the interrogation. R. vol. 25, pp. 32, 45, 51, 104; R. vol. 26, p. 80; R. vol. 27, p. 27. All of this evidence supports the state trial and appellate court rulings that Mrs. Lopez was not acting as an agent of the police either before or during the interrogations. The selfserving statements by Mrs. Lopez to Lopez's current investigator should not be considered, as they are not part of the record. Nor are they credible. Finally, they should not be introduced at an evidentiary hearing because Lopez has not shown that he exercised due diligence to previously discover these facts, see 28 U.S.C. § 2254(e)(2)(A)(ii), and any new 21

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evidence that fundamentally alters the legal claim renders the claim unexhausted. See 28 U.S.C. § 2254(b)(1). B. Concluding that, under the totality of the circumstances, Lopez's statement was voluntary was neither contrary to, nor an unreasonable application of, Supreme Court precedent.

Even if Mrs. Lopez had been acting as an agent of law enforcement during the police questioning, Lopez's statement was voluntary. The Supreme Court has defined a voluntary confession as one that is "the product of an essentially free and unconstrained choice by its maker." Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). If the defendant's "will has been overborne and his capacity for self-determination critically impaired," his statement is not voluntary and may not be admitted into evidence against him. Id. at 225-26. Lopez complains that his mother and the investigating officer unfairly played on his emotions by reminding him of his mother's fragile emotional state. Am'd Application, p. 7. The officer told Lopez that his mother was on the verge of a breakdown, and both urged him to make a statement because it would help her. Ex. B, pp. 14-16. This was not unduly coercive. The trial court found, after watching the videotapes, that Lopez remained "very cool, very calculated, [and] well in command of the situation," during most of the interrogation, despite this appeal to his sympathy for his mother. Ex. A, p. 55. There has to be some sort of causal connection between the government action and the confession to conclude that the government has coerced the confession. See Connelly, 479 U.S. at 167. There was no such causal link here. 22

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These facts are similar to those in United States v. Astello, 241 F.3d 965 (8th Cir.), cert. denied, 533 U.S. 962 (2001). In that case, the police told the defendant that he had disgraced his family and that his lies were dishonoring his family. The defendant responded, "That's a shame, huh?" and laughed. The police also told him that he had broken his father's heart. Astello 241 F.3d at 968. The Eighth Circuit held that the officers' remarks did not render the defendant's subsequent statements involuntary, since his response showed that his will had not been overborne. Id. Lopez did break down when the investigating officer showed him a particularly gruesome photograph of his stepfather's body. That was on the second day of the questioning. Ex. C, p. 13. However, after showing Lopez the picture, and discussing it with him for a few minutes, the officer left Lopez alone in the interview room to regroup. Lopez made no incriminating statements during this time. And he went home a short time later to his grandmother's house. Id. It was not for another three full days that Lopez confessed to the murder. Id. The causal connection, therefore, between the photograph and Lopez's confession, is just not there. The trial court thus correctly concluded that showing Lopez the photograph did not coerce him into confessing. Ex. A, p. 59. Moreover, there is nothing inherently coercive about confronting a suspect with a piece of evidence, no matter how gruesome. For example, in Muniz v. Johnson, 132 F.3d 214 (5th Cir.), cert. denied, 523 U.S. 1113 (1998), the police showed the defendant photographs of the murder victim and the crime scene. The Fifth Circuit held that this did not render the defendant's confession involuntary. Muniz, 132 F.3d at 219-20; see also 23

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Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir.) (even if officer did show defendant gruesome photographs of victim, confession was still voluntary), cert. denied, 510 U.S. 1025 (1993). Finally, Lopez complains that the detective misled him into thinking that Sandoval was his real target and that it would "help" Lopez to confess. Detective Dougherty told Lopez that he believed that Sandoval was the killer, not Lopez. Ex. B, p. 18. He believed that Sandoval was dangerous, and he was going to arrest Sandoval for the murder. Id. at 1718. Lopez's ignorance of accessory liability and the charge of felony murder did not render his confession involuntary. "The policeman is not a fiduciary of the suspect. The police are allowed to play on a suspect's ignorance, his anxieties, his fears, and his uncertainties. . . ." United States v. Rutledge, 900 F.2d 1127, 1130 (7th Cir.), cert. denied, 498 U.S. 875 (1990); see also Frazier v. Cupp, 394 U.S. 731, 739 (1969) (interrogator's misrepresentation to suspect that his co-suspect had already confessed did not render suspect's confession coerced). If Lopez was ignorant of the law of complicity and felony murder, then it was not the detective's duty to educate him. Cf. Miller v. Fenton, 796 F.2d 598, 612 (3d Cir.) ("While [the officer's] promises of psychiatric help and statements that [defendant] was "not a criminal," in combination with his friendly manner, may have been a form of psychological trickery, we do not believe that these elements of the interrogation affected the voluntariness of the confession."), cert. denied, 479 U.S. 989 (1986). The detective also assured Lopez that it was better to cooperate, and that he would "work with him." These were not promises of leniency that rendered his confession 24

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involuntary. The law no longer provides that to be admissible, a confession "`must not be . . . obtained by any direct or implied promises, however slight.'" Arizona v. Fulminante, 499 U.S. 279, 285 (1991) (quoting Brady v. United States, 397 U.S. 742, 753 (1970), and Bram v. United States, 168 U.S. 532, 542-43 (1897)). Rather, as explained above, a court examines the totality of the circumstances to determine whether the government conduct was so coercive that it critically impaired the defendant's capacity for self-determination and overcame the defendant's free will. Schneckloth, 412 U.S. at 225-26. Promises of leniency are but one factor to consider. Green v. Scully, 850 F.2d 894, 901 (2d Cir.), cert. denied, 488 U.S. 945 (1988). Here, as with his other complaints of coercion, Lopez failed to show a causal connection between the complained-of conduct -- the so-called promises -- and his confession. See Connelly, 479 U.S. at 167 (to show due process violation, defendant must prove that government action induced confession). In addition, the detective's statements were not sufficiently coercive to overcome Lopez's will. In fact, the officer never promised Lopez anything in exchange for his cooperation. Vague assurances that he would work with Lopez, and that it would be "better" to cooperate, were nothing more than the ordinary exhortations one would expect from a police officer hoping to convince a witness to speak. See Rutledge, 900 F.2d at 1131 ("[T]he law permits the police to pressure and cajole [suspects to confess.]"); e.g., Rupe v. Wood, 93 F.3d 1434, 1444 (9th Cir. 1996) (confession voluntary, despite polygraph examiner's statement to defendant that he would be better off cooperating instead of revealing failed test 25

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results to other officers), cert. denied, 519 U.S. 1142 (1997); United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995) (telling defendant that cooperating would help him did not render his confession involuntary); United States v. Chalan, 812 F.2d 1302, 1307 (10th Cir. 1987) (confession voluntary, despite officer's exhortations to tell the truth), cert. denied, 488 U.S. 983 (1988); United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir. 1985) (telling defendant that the best thing he could do was cooperate, and that if he made a statement, the officer would notify the DEA and US Attorney, did not render defendant's statement involuntary). Under the totality of the circumstances, the Colorado courts reasonably determined that Lopez's confession was voluntary. Relevant factors include: the suspect's age, education, and intelligence; whether he has been advised of his constitutional rights; how long he has been detained; how long and repeated the questioning has been; and whether the suspect has been deprived of food or sleep. Schneckloth, 412 U.S. at 226. Lopez was eighteen years old. Ex. C, p. 1. Information about his education and intelligence does not appear in the record, except that the trial court evaluated him as someone who was "very cool, very calculated, somebody who was well in command of the situation, knew exactly what was happening around him, made various choices throughout the . . . proceedings as to what he was going to say, and whether he was going to say it, and under what terms and conditions he was going to speak to the police." Ex. A, p. 55. This suggests someone of above-average intelligence. In addition, Detective Dougherty explained

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that Lopez presented as a "fairly bright young man," who had passed his G.E.D. test. R. vol. 25, p. 29. Lopez was advised of his constitutional rights every day before he was questioned and sometimes again during the day. Ex. C, p. 9; R. vol. 25, pp. 28, 34, 47, 49, 53, 56, 63. He was never detained. Each day, for five days, he appeared on his own and left on his own. Id. at 9-10. He also left the room periodically during the day. Id. at 9; ex. B, p. 14. Lopez was questioned for thirty hours total over the course of five days. Lopez, 946 P.2d at 480. He initially denied any involvement in the murder, but admitted that he had a "vision" of certain events. Then he said he had a mental block. Ex. C, p. 9. His "vision" became clearer over the next few days, and his mental block improved. Id. at 9-10. Except for immediately after being shown the photograph of the victim's body, he remained cool and collected during the questioning. Id. at 9-11. The trial court found that Lopez was well aware that he could stop the questioning at any time, but chose not to. Ex. A, p. 56. Especially given his later questions about his liability as an accessory, the most logical conclusion is the one drawn by the trial court -- Lopez ultimately concluded, of his own free will, that it was in his best interest to admit being with Sandoval when he murdered Lopez's stepfather. From the standpoint of the defense, that might not have been the wisest or bestinformed choice, but it was not one made while his will was overborne by unfair police tactics. The Colorado Court of Appeals' decision is therefore not unreasonable, and there is no basis for this Court to issue a writ of habeas corpus. 27

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II.

Lopez has failed to demonstrate actual innocence, and this is not a freestanding claim that can warrant habeas relief.

Lopez argues in his amended application that he is actually innocent of the crime of which he stands convicted because his confession should have been suppressed and, without the confession, no reasonable juror would find Lopez guilty beyond a reasonable doubt. He misconstrues the standard for actual innocence, and in any event, actual innocence is not a substantive claim on which habeas relief may be granted in a non-capital case. A claim of actual innocence might in a capital case constitute a substantive claim of a constitutional violation, and might in itself constitute an independent ground for habeas relief. House v. Bell, ___ U.S. ___, 126 S. Ct. 2064, 2086-87 (2006) (declining to decide the issue); Herrera v. Collins, 506 U.S. 390, 417 (1993) (same). But, in non-capital cases, showing "actual innocence" is only a "gateway" through which a petitioner must pass in order to obtain federal habeas review of the merits of substantive claims that have otherwise been procedurally defaulted. See Schlup v. Delo, 513 U.S. 298, 315 (1995); Herrera, 506 U.S. at 404. Lopez's only substantive claim is not procedurally barred from this Court's review. His claim of actual innocence is therefore unavailing. In any event, Lopez has failed to make the requisite demonstration of actual innocence. Even in a capital case, "the threshold showing for [demonstrating actual innocence] would necessarily be extraordinarily high." Herrera, 506 U.S. at 417. A freestanding innocence claim requires even more convincing proof of innocence than does a 28

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"gateway" claim that would excuse a procedural default. House, 126 S. Ct. at 2087. And for a "gateway" claim, the applicant must show that in light of new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 327. The court must consider all of the evidence, old and new, and without regard to whether it would be admissible at trial. Id. at 327-28. Indeed, to show actual innocence, an applicant must show that "in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) . . . , the trier of the facts would have entertained a reasonable doubt of his guilt." Kuhlmann v. Wilson, 477 U.S. 436, 455 n.17 (1986). Here, Lopez asks this Court to evaluate the merits of the case without considering his confession because, he claims, that was illegally obtained. However, it is clear from Wilson, 477 U.S. at 455 n.17, that an actual innocence claim must be evaluated considering all of the evidence in the case, whether or not admissible at trial. Lopez does not argue that his allegedly coerced confession was actually unreliable. In fact, it would be difficult for him to do so in light of the fact that he was able at the end of his confession to lead the detective to the jewelry that was stolen at the time of the murder. This corroborates his confession. If Lopez's argument is credited, what he does establish is that any constitutional error in admitting his confession was not harmless beyond a reasonable doubt. That does not establish an independent basis for relief.

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Conclusion and Disposition For the reasons set forth above, the amended application for a writ of habeas corpus should be denied. JOHN W. SUTHERS Attorney General

s/ Cheryl Hone CHERYL HONE* Assistant Attorney General Appellate Division Criminal Justice Section Attorneys for Respondents 1525 Sherman Street, 5th Floor Denver, Colorado 80203 D.C. Box No. 20 Telephone: (303) 866-3134 *Counsel of Record

AG ALPHA: AG File:

DAXX GZEW1 \\S_DOL_2\DATA\AP\APHONECZ\HABEAS\LOPEZ.JOHN.AMENDEDANSWER.DOC

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CERTIFICATE OF SERVICE I hereby certify that on September 13, 2006, I electronically filed the foregoing AMENDED ANSWER with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail address: [email protected]

s/ Cheryl Hone

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