Donis v. Hansen et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Philip A. Brimmer
Civil Action No. 25-cv-03241-PAB
DAVID DONIS,
Applicant,
v.
JENNIFER HANSEN, and
PHILLIP J. WEISER, Attorney General of the State of Colorado,
Respondents.
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
Applicant, David Donis, is a prisoner in the custody of the Colorado Department
of Corrections. Mr. Donis has filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 [Docket No. 1]. Mr. Donis challenges the validity of his
conviction and sentence in the District Court for El Paso County, Colorado, case
number 07CR1477. Respondents have filed an Answer, Docket No. 26, and the state
court record. Mr. Donis has filed a reply, Docket No. 29.
After reviewing the entire record before the Court, the Court concludes Mr. Donis
is not entitled to relief.
I. BACKGROUND
Mr. Donis “was convicted by a jury on one count of first degree kidnapping, two
counts of second degree kidnapping, two counts of first degree burglary, two counts of
aggravated robbery, one count of second degree assault, and one count of felony
menacing.” Docket No. 12-9 at 4. In his most recent state court postconviction appeal,
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the Colorado Court of Appeals described the relevant facts of the crimes as follows:
Donis, who rented the basement apartment in the victim’s house,
had purchased a truck from the victim. Donis made payments toward the
purchase of the truck based on a payment plan. After police suspected
that Donis had committed a crime in the apartment, the victim demanded
that Donis move out and immediately pay the remaining balance owed for
the truck. Donis asked for time to remove his belongings and pay the
balance.
One week later, the victim repossessed the truck and called Donis’
son to retrieve Donis’ possessions, which the victim had placed outside
the house. Approximately two weeks later, Donis and a female accomplice
drove to the victim’s house, broke in, and forced the new tenant to carry
several bags of the victim’s belongings out of the house.
The victim returned shortly thereafter, and Donis and the woman
approached him. Donis and the woman knocked the victim to the ground
and assaulted him, and Donis struck the victim with a pistol. Donis
threated [sic] to kill the victim if the victim did not return Donis’ money or
give Donis the truck title. The victim offered to give Donis the title, which
the victim said was inside the house. Still armed with the pistol, Donis
continued to hit and threaten the victim while the two entered the house.
After obtaining the title, Donis demanded that the victim take him to the
truck, which was parked at another location. Donis attempted to force the
victim into a car, but the victim escaped. Donis and the woman fled in the
car.
Id. at 3-4.
Mr. Donis asserts eight numbered claims in the Application, each of which refers
to multiple constitutional amendments and theories. In a Pre-Answer Response, Docket
No. 12, Respondents identified nineteen separate claims for relief. Mr. Donis filed a
reply to the Pre-Answer Response, Docket No. 15, that addresses the same nineteen
claims. On February 26, 2026, the Court entered an Order, Docket No. 22, dismissing
fourteen of the nineteen claims and directing Respondents to file an answer that
addresses the merits of claims 10, 12, 13, 15, and 16. In the remaining claims, Mr.
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Donis contends trial counsel was ineffective by failing to request a jury instruction on
voluntary intoxication (claim 10), trial counsel was ineffective by confessing Mr. Donis’
guilt in his opening statement (claim 12), trial counsel was ineffective by failing to
introduce evidence of witness misidentification (claim 13), the trial court erred by
preventing Mr. Donis from representing himself at trial (claim 15), and the trial court
misadvised Mr. Donis about the effects of testifying at trial (claim 16). Additional facts
pertinent to the remaining claims are set forth below.
II. STANDARDS OF REVIEW
The Court must construe the Application and other papers filed by Mr. Donis
liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S.
519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
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.
28 U.S.C. § 2254(d). Mr. Donis bears the burden of proof under § 2254(d). See Cullen
v. Pinholster, 563 U.S. 170, 181 (2011).
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The Court’s inquiry is straightforward “when the last state court to decide a
prisoner’s federal claim explains its decision on the merits in a reasoned opinion.”
Wilson v. Sellers, 584 U.S. 122, 125 (2018). “In that case, a federal habeas court simply
reviews the specific reasons given by the state court and defers to those reasons if they
are reasonable.” Id.
The threshold question the Court must answer under § 2254(d)(1) is whether Mr.
Donis seeks to apply a rule of law that was clearly established by the Supreme Court at
the time the state court adjudicated the claim on its merits. Greene v. Fisher, 565 U.S.
34, 38 (2011). 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.” Williams v. Taylor, 529 U.S. 362, 412 (2000). If there is no clearly established
federal law, that is the end of the Court’s inquiry pursuant to § 2254(d)(1). See House v.
Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008).
A state court decision is contrary to clearly established federal law if the state
court either applies a rule that contradicts governing Supreme Court law or decides a
case differently than the Supreme Court on materially indistinguishable facts. See
House, 527 F.3d at 1018. “A state court decision involves an unreasonable application
of clearly established federal law when it identifies the correct governing legal rule from
Supreme Court cases, but unreasonably applies it to the facts.” Id. A decision is
objectively unreasonable “only if all fairminded jurists would agree that the state court
got it wrong.” Stouffer v. Trammel, 738 F.3d 1205, 1221 (10th Cir. 2013) (internal
quotation and citation omitted). Furthermore,
Evaluating whether a rule application was unreasonable requires
considering the rule’s specificity. The more general the rule, the more
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leeway courts have in reaching outcomes in case-by-case determinations.
It is not an unreasonable application of clearly established Federal law for
a state court to decline to apply a specific legal rule that has not been
squarely established by [the Supreme] Court.
Harrington v. Richter, 562 U.S. 86, 101 (2011) (citation modified).
Under this standard, “only the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254.” Maynard v. Boone, 468 F.3d 665, 671
(10th Cir. 2006); see also Richter, 562 U.S. at 102 (stating “that even a strong case for
relief does not mean the state court’s contrary conclusion was unreasonable”).
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.
Richter, 562 U.S. at 103. Notably, “review under § 2254(d)(1) is limited to the record
that was before the state court that adjudicated the claim on the merits.” Cullen, 563
U.S. at 181.
Section 2254(d)(2) allows a court to grant a writ of habeas corpus only if the
relevant state court decision was based on an unreasonable determination of the facts
in light of the evidence presented to the state court. The court must presume the state
court’s factual determinations are correct. Mr. Donis bears the burden of rebutting the
presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The
presumption of correctness applies to factual findings of the trial court as well as state
appellate courts. See Al-Yousif v. Trani, 779 F.3d 1173, 1181 (10th Cir. 2015). The
presumption of correctness also applies to implicit factual findings. See Ellis v.
Raemisch, 872 F.3d 1064, 1071 n.2 (10th Cir. 2017). “But if the petitioner can show
that the state courts plainly misapprehended or misstated the record in making their
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findings, and the misapprehension goes to a material factual issue that is central to
petitioner’s claim, that misapprehension can fatally undermine the fact-finding process,
rendering the resulting factual finding unreasonable.” Smith v. Duckworth, 824 F.3d
1233, 1241 (10th Cir. 2016) (citation modified).
Finally, the Court’s analysis is not complete even if Mr. Donis demonstrates the
state court decision is contrary to or an unreasonable application of clearly established
federal law or was based on an unreasonable determination of the facts in light of the
evidence presented. See Harmon v. Sharp, 936 F.3d 1044, 1056 (10th Cir. 2019).
Rather, if the requisite showing under § 2254(d) is made, the Court must consider the
merits of the constitutional claim de novo. See id. at 1056-57.
If a claim was not adjudicated on the merits in state court, and if the claim also is
not procedurally barred, the Court reviews the claim de novo and the deferential
standards of § 2254(d) do not apply. See id. at 1057. However, even if a claim is not
adjudicated on the merits in state court, the Court still must presume the state court’s
factual findings pertinent to the claim are correct under § 2254(e). See id.
III. MERITS OF REMAINING CLAIMS
A. Ineffective Assistance of Counsel Claims
Mr. Donis asserts three claims that trial counsel was ineffective. He specifically
contends counsel was ineffective by failing to request a jury instruction on voluntary
intoxication (claim 10), confessing Mr. Donis’ guilt in his opening statement (claim 12),
and failing to introduce evidence of witness misidentification (claim 13).
Clearly established federal law provides that a defendant in a criminal case has
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a Sixth Amendment right to the effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668 (1984). To establish counsel was ineffective Mr. Donis must
demonstrate both that counsel’s performance fell below an objective standard of
reasonableness and that counsel’s deficient performance resulted in prejudice to his
defense. See id. at 687. If Mr. Donis fails to satisfy either prong of the Strickland test,
the ineffective assistance of counsel claim must be dismissed. See id. at 697.
In general, “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. There is “a strong presumption” that counsel’s performance falls
within the range of “reasonable professional assistance.” Id. It is Mr. Donis’ burden to
overcome this presumption by showing that the alleged errors were not sound strategy
under the circumstances. See id.
In the context of federal habeas corpus review under § 2254(d), a state prisoner
claiming counsel was ineffective “faces an even greater challenge.” Harmon, 936 F.3d
at 1058. “When assessing a state prisoner’s ineffective-assistance-of-counsel claims
on habeas review, [federal courts] defer to the state court’s determination that
counsel’s performance was not deficient and, further, to the attorney’s decision in how
to best represent a client.” Id. (citation modified). Thus, review under § 2254(d) is
doubly deferential. See id. Furthermore,
federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under
§ 2254(d). When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether any reasonable
argument exists that counsel satisfied Strickland’s deferential standard.
And because the Strickland standard is a general standard, a state court
has . . . more latitude to reasonably determine that a defendant has not
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satisfied that standard.
Id. (citation modified).
Under the prejudice prong Mr. Donis must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.; see also Richter, 562 U.S. at
112 (stating that “[t]he likelihood of a different result must be substantial, not just
conceivable”). In determining whether Mr. Donis has established prejudice, the Court
must look at the totality of the evidence and not just the evidence that is helpful to Mr.
Donis. See Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999).
1. Claim 10
Mr. Donis argues that counsel should have raised a voluntary intoxication
defense and requested a jury instruction on voluntary intoxication because evidence
admitted at trial indicated he had smoked crack cocaine at or near the time of the
alleged offense. The Colorado Court of Appeals applied Strickland and rejected this
ineffective assistance claim because trial counsel’s strategic decision not to raise the
defense was reasonable. The state court reasoned as follows:
Testimony presented during the postconviction hearing in this case
established that defendant’s trial attorneys made a strategic decision: they
would not raise an involuntary intoxication defense. Rather, their strategy
was to portray defendant as a reasonable person who had tried to resolve
a dispute peacefully; the prosecution’s evidence to the contrary was
unreliable. Offering evidence of defendant’s cocaine use would have been
“wholly inconsistent” with this “reasonable man” strategy.
One of defendant’s trial attorneys testified that “the common
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perception of someone on cocaine is a wild and crazy person that might
go in and pistol whip somebody and drag him around the house,” which is
what the prosecution contended that defendant did in this case. His trial
attorneys did not want to suggest that his behavior during the crime had
been consistent with this “common perception.”
Contrary to defendant’s contention, the record shows that his trial
attorneys followed their strategy at trial. In opening statement, one of them
stated that defendant did
what any of us would do, and [said], you give me back
my money, or you give me back my car. And if you don’t,
the big threat: If you don’t, I’m going to call the police.
Exactly what you would do if you purchased a car from
somebody.
And, in closing argument, one of them argued that defendant
• 	tried to “go over to the [victim’s] house and knock on the door to
say, look, I want to pay you what I still owe you for the truck”;
• 	“[did] not threaten violence”; and
• 	“had been [to the victim’s house] for a legal reason.”
We reject defendant’s contention that his trial attorneys
contradicted their strategy because they had “painted [defendant] as a
crack-addled assailant” when cross-examining a witness. We read the
cross-examination upon which he bases this argument differently than he
reads it. Rather than conceding that defendant was under the influence of
crack cocaine during the crime, this cross-examination merely repeated
the language that the witness had used during direct examination. And,
looking at this cross-examination in light of defendant’s entire defense, we
conclude that it was designed to mesh with the trial attorneys’ contention
that the physical evidence was inconsistent with the victim’s description of
the crimes.
We conclude that the record supports the postconviction court’s
determination that defendant’s trial attorneys had good reasons to follow
their strategy and to eschew the defense of voluntary intoxication.
Defendant has not rebutted the “virtually unchallengeable” presumption
that this strategic choice was objectively reasonable. See Ardolino, 69
P.3d at 76. We therefore further conclude that the record supports the
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postconviction court’s decision to reject defendant’s ineffective assistance
of counsel claim.
Docket No. 12-5 at 5-7 (alterations in original).
Mr. Donis fails to demonstrate the state court’s determination was contrary to
clearly established federal law under § 2254(d)(1). That is, he does not cite any
contradictory governing law set forth in Supreme Court cases or any materially
indistinguishable Supreme Court decision that would compel a different result. See
House, 527 F.3d at 1018.
Mr. Donis also fails to demonstrate the state court’s decision was based on an
unreasonable determination of the facts in light of the evidence presented under
§ 2254(d)(2). To satisfy § 2254(d)(2), Mr. Donis must demonstrate the state court’s
factual determination is objectively unreasonable, and that the state court decision is
based on the objectively unreasonable factual determination. See Smith v. Aldridge,
904 F.3d 874, 880 (10th Cir. 2018). “Simply stated, proving an unreasonable
determination of fact is difficult to do – just as it was meant to be . . . because AEDPA
functions as a guard against extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through appeal.” Id. (internal quotations
and citations omitted).
Here, as recounted in the excerpt above, the state court determined that
defense counsel made a strategic decision to pursue a reasonable man defense and
that counsel followed that strategy at trial. The Court presumes these factual findings
are correct, and Mr. Donis fails to present clear and convincing evidence to rebut the
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presumption of correctness. See 28 U.S.C. § 2254(e)(1). Based on the Court’s review
of the state court record and the state court postconviction proceedings in particular,
the Court cannot conclude that Mr. Donis has shown “the state courts plainly
misapprehended or misstated the record in making their findings, and the
misapprehension goes to a material factual issue that is central to [his] claim[s].” Smith,
824 F.3d at 1241 (alterations and citation omitted).
With respect to the “unreasonable application” clause of § 2254(d)(1), Mr. Donis
argues the state court unreasonably applied Strickland because counsel failed to
investigate a voluntary intoxication defense. According to Mr. Donis, counsel knew that
evidence of drug usage would be introduced at trial and “[c]ounsel’s failure to evaluate
or utilize that evidence demonstrates not strategy – but omission.” Doc. 29 at 5.
The Court is not persuaded. It is true that “counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691. But Mr. Donis does not
identify what counsel failed to investigate and he does not identify what evidence
additional investigation would have uncovered. He simply argues that counsel should
have pursued a voluntary intoxication defense that was inconsistent with the
reasonable man defense counsel elected to pursue.
Under these circumstances, Mr. Donis fails to demonstrate the state court’s
rejection of this ineffective assistance of counsel claim “was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Richter, 562 U.S. at 103. The Court reiterates
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that “[t]he question [under § 2254(d)] is whether any reasonable argument exists that
counsel satisfied Strickland’s deferential standard.” Harmon, 936 F.3d at 1058. The
state court’s analysis above, i.e., that counsel made a strategic decision not to pursue
a voluntary intoxication defense because it was inconsistent with a reasonable man
defense and counsel followed that strategy at trial, is a reasonable application of
Strickland. Strategic choices “made after thorough investigation . . . are virtually
unchallengeable.” Strickland, 466 U.S. at 690.
For these reasons, Mr. Donis is not entitled to relief with respect to claim 10.
2. Claim 12
Mr. Donis contends in claim 12 that counsel was ineffective by confessing Mr.
Donis’ guilt in his opening statement. According to Mr. Donis, counsel affirmatively
conceded several essential elements of the charged crimes by stating Mr. Donis was
present at the scene of the alleged crimes, there was movement of the alleged victim
from the driveway/garage into and through the home, Mr. Donis obtained the title to the
vehicle, a physical altercation occurred that may have been third-degree assault, and
Mr. Donis’ vehicle was at the crime scene. The relevant portion of defense counsel’s
opening statement is the following:
Good morning. Let’s talk about what really happened. This is not
about choices and bad decisions and things like that. It’s about a Ford
Explorer. Okay? It’s about a Ford Explorer that [the victim] sold to Mr.
Donis.
You will hear not only did Mr. Donis make some payments, he
almost fully paid off the Ford Explorer, and he was using the Ford Explorer
while he paid it off. Well, [the victim] decides to come over and take that
Ford Explorer back. He just comes and takes it.
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So what does Mr. Donis do? Well, he calls [the victim], like any of
us would do, and says, you give me back my money, or you give me back
the car. And if you don’t, the big threat: If you don’t, I’m going to call the
police. Exactly what you would do if you purchased a car from somebody.
This is about ten days prior to this incident.
Well, he doesn’t hear back. So what does he do? He goes over to
[the victim’s] residence. Now this is not the case where some guy creepily
shows up at the car dealer’s house. As you heard from the District
Attorney, he used to live there, he used to rent a room, so he knows
where it is, he knows [the victim] personally. He shows up, and again, he
wants his money back, or the car.
Now, you have heard the charges, you have heard what the District
Attorneys have decided to charge him with in this case. You have heard
the charge of kidnapping. Here is what the evidence is going to show
about kidnapping: The evidence is going to show that this meeting,
argument, started in the driveway slash garage of [the victim’s] house.
And this meeting and argument ended in the driveway slash garage of [the
victim’s] house.
Now, in between they went inside briefly to get the title of the car,
okay? There is your kidnapping evidence. Starts and ends right there in
the garage, in the driveway.
So the story [the victim] tells, he will get on the stand and he’ll tell
you, is that they jump out of this car, they attack him. They hit him too
many times to count. They are hitting him with a gun. Well, what will the
evidence show you? The evidence will show you he has maybe some
bruises and some cuts, maybe there was a third-degree assault, a
physical altercation. The evidence will absolutely not support somebody
being beaten too many times to count by two individuals with a gun.
Don’t take my word for it, you’ll see the photos. Also you will look
for corroboration. We can go to the neighbors. Okay? You have the
neighbors right next door. That’s the first place [the victim] runs, bangs on
their door, tries to get in. Then you will hear, lays in their yard. He wants
this to be dramatic. Well, they don’t answer the door, so what does he do?
Then he gets up from their yard, because that hasn’t worked, he
walks out in the middle of the road, and he lays down there. Now, mind
you, this is after Mr. Donis had already left. We’ll get back to that in one
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second. He lies down in the middle of the road and starts shouting. Well,
that neighbor didn’t work, let’s try to wake the whole neighborhood, let’s
see who does work.
Well, [a neighbor] was outside, out on her back patio, which faces
that residence. She will be able to tell when you [sic] she testifies that she
saw the Cadillac pull up, the Cadillac Explorer [sic], Mr. Donis’ car. She
saw it pull up, and she heard [the victim] yelling. What she won’t be able to
tell you, what the evidence won’t show you, she won’t come in here and
say that she heard two males fighting. She won’t come in here and say
that she heard a female at all. She won’t even tell you she saw a second
male or female. She won’t tell you she heard a gunshot. But again, she’ll
tell you she was out back, and that she was — her back yard faces the
front of [the victim’s] residence.
Now [the victim] gets in this fight, gets in this argument with Mr.
Donis, and then needs to make this scene, because Mr. Donis already told
him he was going to call the police, because [the victim] stole his car.
That’s why we’re here today. That’s your story.
Tr. 7/22/2008, pp.11:17 – 14:8.
The Colorado Court of Appeals addressed the substance of claim 12 in the
context of a claim that postconviction counsel was ineffective. Docket No. 12-9 at 11
(“For Donis to prevail on his concession claim, he must establish that his first
postconviction counsel was ineffective by failing to raise this issue at the first
postconviction hearing.”). Citing McCoy v. Louisiana, 584 U.S. 414 (2018), the state
court recognized that “[a] defendant has a Sixth Amendment right to autonomy over
deciding his defense, which includes the right to either plead guilty or assert his
innocence,” that “Strickland does not apply where a client’s autonomy, rather than
counsel’s competence, is at issue,” and that “a defense counsel’s violation of the
client’s right to autonomy constitutes structural error, meaning that, if error is found, the
defendant is entitled to automatic reversal.” Docket No. 12-9 at 9, 10.
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The postconviction court concluded that trial counsel did not admit Mr. Donis
was guilty of anything because counsel’s sarcastic remarks about the charges were not
judicial admissions of guilt, and the Colorado Court of Appeals agreed. In particular,
the Colorado Court of Appeals determined as a factual matter that Mr. Donis’ presence
at the scene was undisputed, and thus “trial counsel’s strategy to acknowledge Donis
was present – but to assert that he did not commit any of the charged conduct – was
consistent with Donis’ desire to assert his innocence.” Id. at 23. With respect to the
kidnapping charge in particular, the appellate court relied on trial counsel’s testimony at
a postconviction hearing “that he was trying to convey in his opening statement that the
prosecution could not prove that Donis had ‘enticed or persuaded’ the victim ‘to go
from one place to another,” meaning “the evidence would show that Donis could not
have committed kidnapping.” Id. at 25. And with respect to the statement that “maybe
there was a third-degree assault,” the state court rejected Mr. Donis’ argument that this
was a concession of guilt “because Donis was not charged with that offense,” and
“[m]ore importantly, [trial counsel] again made this statement sarcastically.” Id. at 26.
Mr. Donis does not argue the state court’s determination was contrary to clearly
established federal law under § 2254(d)(1).
Mr. Donis does argue the state court’s decision was based on an unreasonable
determination of the facts in light of the evidence presented under § 2254(d)(2). In
particular, he challenges the state court’s determination that the portions of trial
counsel’s opening statement he is challenging were sarcasm and not admissions of
guilt. But the Court presumes the sarcasm determination is correct, and Mr. Donis’
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alternative interpretation is not clear and convincing evidence that rebuts the
presumption of correctness. See 28 U.S.C. § 2254(e)(1). Based on the Court’s review
of the state court record and trial counsel’s opening statement in particular, the Court
cannot conclude that Mr. Donis has shown “the state courts plainly misapprehended or
misstated the record in making their findings, and the misapprehension goes to a
material factual issue that is central to [his] claim[s].” Smith, 824 F.3d at 1241.
Mr. Donis argues the state court unreasonably applied McCoy. But his
unreasonable application argument ignores the presumptively correct factual
determination the state court made, namely, that trial counsel’s alleged concessions
were sarcastic remarks intended to convey that the prosecution could not prove its
case because the evidence supporting the alleged crimes was plainly insufficient.
Under these circumstances, Mr. Donis fails to demonstrate the state court’s rejection of
the concession claim “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at 103.
For these reasons, Mr. Donis is not entitled to relief with respect to claim 12.
3. Claim 13
Mr. Donis argues in claim 13 that counsel was ineffective by failing to introduce
evidence that two witnesses (the victim and David McKinney) identified individuals who
could not have committed the crimes as the perpetrators. The victim originally identified
a photograph of David Donis, Jr., who is Mr. Donis’ son and who was incarcerated at
the time, as the suspect. And Mr. McKinney picked Autumn Ray Parker, an individual
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who also was incarcerated at the time, out of a lineup and identified her as the female
accomplice. Mr. Donis concedes that the misidentification by the victim actually was
addressed during the victim’s testimony, and that the victim testified that Mr. Donis and
his son look alike. Docket No. 1 at 28. However, he contends trial counsel failed to
present the actual photograph of his son that the police showed the victim. Mr.
McKinney’s misidentification of the female accomplice was not mentioned during his
testimony at Mr. Donis’ trial.
Like claim 12, both parts of claim 13 were raised in state court in the context of
claims that postconviction counsel was ineffective. Docket No. 12-9 at 6 (“Donis
asserted multiple claims in his second Rule 35(c) motion, including whether first
postconviction counsel was ineffective by failing to (1) raise the victim’s
misidentification of Donis’ son.”); Docket No. 12-9 at 34-35 (“Donis contends that the
second postconviction court erred by finding first postconviction counsel was not
ineffective when she failed to raise trial counsel’s deficient performance by not
impeaching McKinney for his misidentification of Donis’ alleged female accomplice.”).
However, the first part of claim 13 that relates to the victim’s misidentification of Mr.
Donis’ son is not exhausted because the Colorado Court of Appeals determined the
claim was not raised in Mr. Donis’ opening brief and was abandoned. Docket No. 12-9
at 6, 7. In any event, even if the first part of claim 13 was properly before the Court, the
claim lacks merit under Strickland. The state court record confirms Mr. Donis’
concession that the victim’s misidentification was addressed during the victim’s direct
examination and trial counsel’s cross-examination. See Tr. 7/22/2008, pp.98:3 –
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100:10, 103:9 – 21. The fact that the actual photograph the victim misidentified was not
introduced as evidence does not demonstrate trial counsel’s performance was deficient
or that Mr. Donis was prejudiced because Mr. Donis’ presence at the scene was not in
dispute and was consistent with counsel’s reasonable man defense strategy.
With respect to the second part of claim 13 that relates to Mr. McKinney’s
misidentification of the female accomplice, the Colorado Court of Appeals rejected the
claim because Mr. Donis failed to demonstrate prejudice under Strickland. The state
court reasoned as follows:
McKinney testified at trial that Donis had a female accomplice with
him on the night of the incident. It is undisputed that the police showed
McKinney a photo array and McKinney identified as the female
accomplice a woman who was incarcerated at the time of the incident. As
a result, Donis contends that trial counsel had this information yet failed to
impeach McKinney about his misidentification. And according to Donis,
because McKinney was a crucial prosecution witness, trial counsel was
deficient by not using this impeachment material to attack McKinney’s
credibility. The second postconviction court held that, even though trial
counsel had no tactical reason for not impeaching McKinney with his
misidentification of the female accomplice, the overall cross-examination
of McKinney met the “constitutional standard of professional adequacy.”
Although not worded as such, we view the postconviction court’s
conclusion on this issue to be a prejudice, rather than performance,
analysis. “Strickland generally requires a showing that the defendant was
prejudiced — that is, that there is a reasonable probability that the result of
the proceeding would have been different but for counsel’s deficient
performance.” People v. Sharp, 2019 COA 133, ¶ 26 (citing Strickland,
466 U.S at 687-88).
Even assuming trial counsel’s performance was deficient by failing
to impeach McKinney on his misidentification, Donis failed to prove
prejudice because he cannot show how further undermining McKinney’s
credibility would have resulted in a different outcome. See Moody, 159
P.3d at 615 (we may affirm an order on any ground supported in the
record); see also Sharp, ¶ 12 (whether a defendant has satisfied
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Strickland’s performance or prejudice prongs are legal conclusions “to
which [an appellate court] do[es] not defer”).
[Trial counsel] attacked McKinney’s credibility during cross-
examination on a variety of topics, including McKinney’s relationship with
the victim, how much alcohol he consumed the night of the incident, his
inability to remember details about Donis and his female accomplice,
whether Donis reached around and grabbed a gun from his waistband,
and whether McKinney smoked crack the night of the incident.
[Trial counsel] drew the jury’s attention to these inconsistencies and
omissions by comparing McKinney’s statement to a police officer’s trial
testimony. And in closing argument, [trial counsel] used those
inconsistencies in McKinney’s testimony to tell the jury that McKinney was
“not always a truthful guy.”
Accordingly, we conclude that there was no reasonable probability
that impeaching McKinney on the misidentification issue would have
changed the outcome. See People v. Dunlap, 124 P.3d 780, 798 (Colo.
App. 2004) (finding failure to impeach witness did not demonstrate a
reasonable probability that the additional information would have caused a
different outcome). Because Donis has failed to meet his burden of
showing both deficient and prejudicial performance, we discern no error.
Docket No. 12-9 at 35-37.
Mr. Donis does not argue the state court’s determination was contrary to clearly
established federal law under § 2254(d)(1).
Mr. Donis does argue that the state court’s decision was based on an
unreasonable determination of the facts in light of the evidence presented under
§ 2254(d)(2). But he does not identify any factual errors underlying the state court’s
decision. Instead, he challenges the state court’s determination that he was not
prejudiced, an argument that goes to the issue of whether the state court unreasonably
applied Strickland.
The Court is not persuaded that the state court unreasonably applied Strickland
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because Mr. Donis fails to demonstrate the state court’s rejection of this ineffective
assistance of counsel claim “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at 103. The Court reiterates that “[t]he question
[under § 2254(d)] is whether any reasonable argument exists that counsel satisfied
Strickland’s deferential standard.” Harmon, 936 F.3d at 1058. Here, the state court
determined there was no reasonable probability that additional impeachment of Mr.
McKinney relevant to the identity of the female accomplice would have changed the
outcome. Given the fact that Mr. Donis’ presence at the scene was not in dispute, this
conclusion is reasonable. And, contrary to Mr. Donis’ assertion, Mr. McKinney’s
misidentification of the female accomplice is not “specific powerful exculpatory
evidence” because it does not directly undermine Mr. McKinney’s identification of
Donis.
For these reasons, Mr. Donis is not entitled to relief with respect to claim 13.
B. Claim 15
Mr. Donis contends in claim 15 that the trial court erred by preventing him from
representing himself at trial.
A defendant in a criminal proceeding has a constitutional right to waive his right
to counsel and to represent himself. Faretta v. California, 422 U.S. 806, 817 (1975). A
waiver may take the form of an express statement relinquishing the right to counsel or,
under certain circumstances, a waiver can be implied from the facts of the case. See
North Carolina v. Butler, 441 U.S. 369 (1979). To be effective, a waiver of counsel
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must be knowing, voluntary, and intelligent. See Iowa v. Tovar, 541 U.S. 77, 88 (2004).
On direct appeal, the Colorado Court of Appeals addressed Mr. Donis’ claim
“that the trial court erred by appointing counsel to represent him despite his
unequivocal requests to represent himself.” Docket No. 12-3 at 4. The state court
rejected this claim because Mr. Donis’ disruptive behavior justified the trial court’s
decision to appoint counsel over his objection.
Here, the record demonstrates that defendant persistently engaged
in obstreperous conduct throughout pretrial proceedings.
At the April 30, 2007, preliminary hearing, defendant immediately
began interrupting defense counsel and the court to complain that he was
not satisfied with his attorneys. The trial court cautioned him several times
to wait until it was his turn to speak, and eventually warned him that, if he
could not be quiet, he would be removed from the courtroom.
Defense counsel asked for a recess to “try to calm him down before
we have contempt charges.” This attempt was unsuccessful. Two of
defendant’s attorneys then expressed concerns about his competency.
One of them, who had known defendant for “close to a year,” stated that
defendant had been rocking himself back and forth while they spoke, and
that he had never seen defendant behave in such an agitated manner.
The trial court denied defense counsel’s request for a competency
evaluation, but repeated its warning to defendant that he must refrain from
disruptive conduct or be found in contempt of court and removed from the
courtroom.
During testimony by the prosecution’s first witness, defendant
interrupted, saying that he was “ready to go” and that he was “being
railroaded” because defense counsel had not objected to leading
questions by the prosecutor. The trial court found him in contempt and
ordered him removed from the courtroom.
Subsequent hearings followed a similar pattern. Defendant
repeatedly interrupted the trial court, arguing about issues that had
already been decided against him, and accusing defense counsel of
“conspiring” against him by requesting a competency evaluation. At
various times, defendant turned him back on the court, made
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inappropriate comments about the judge’s grandchild, threatened defense
counsel’s daughter with divine retribution, and refused to answer the
court’s questions. He was removed from the courtroom twice more for
disruptive conduct.
After a conflict hearing before another judge, who determined that
no conflict existed justifying the removal of the public defender and
appointment of alternative defense counsel, the trial court explained to
defendant that his only options were to continue with the public defender
or represent himself. Defendant, however, refused repeatedly to tell the
trial court his choice, and instead continued to argue that a conflict
existed. Only after the trial court had asked him ten times did defendant
state that he wished to dismiss the public defender and represent himself.
The trial court dismissed the public defender and appointed
advisory counsel. At a motions hearing three days before trial was to
begin, defendant was loud and aggressive with the trial court and
demanded that the court recuse. The trial court took a recess to allow
defendant to speak with advisory counsel to “get [him] to the point where
[he would] specifically answer the court’s questions.” Following the recess,
defendant asserted that he would not proceed with trial unless another
judge took over the case. He then refused to speak or respond to any of
the trial court’s questions for the remainder of the hearing.
On the day trial was to start, defendant refused to address the trial
court’s preliminary questions, instead repeating his prior complaints and
insisting that the trial court and defense counsel had broken the law and
violated ethical rules. He turned his back on the court and stated
repeatedly that he would not participate in the proceedings and that he
would not be a “clown” in the trial court’s “circus.” After several more
warnings, the trial court found defendant in contempt, ordered him
removed from the courtroom, and appointed counsel to represent him over
his objection. Trial was continued to allow newly appointed defense
counsel adequate time to prepare.
In appointing counsel to represent defendant, the trial court noted,
[Defendant] is engaging and continuing to engage in such
disruptive behavior that this Court cannot conduct this trial. He has
chosen, when I have been quiet and respectful with him, he has
chosen to continue to be disorderly. He has chosen to not have the
Court proceed forward. . . . He refuses to listen to the Court after
being admonished.
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The record contains ample support for the trial court’s finding that
defendant’s conduct was disruptive enough to justify the appointment of
counsel over his objection. The trial court was more than diligent in its
attempts to accommodate defendant’s desire to represent himself, and it
followed the procedure outlined in Cohn by appointing advisory counsel
when it appeared likely that defendant’s conduct might require his removal
during trial. We therefore perceive no error by the trial court.
Docket No. 12-3 at 6-10.
Mr. Donis’ claim on direct appeal that was addressed by the Colorado Court of
Appeals related to the reappointment of counsel over his objection on November 5,
2007, the day his trial was scheduled to start. See Docket No. 12-2 at 21-27. In this
action, Mr. Donis argues his right to self-representation was violated for approximately
six months beginning on April 30, 2007 until he finally was allowed to proceed pro se
on October 12, 2007. But this specific claim is not exhausted because, even though the
claim was raised in state court postconviction proceedings, the claim was not fairly
presented to the Colorado appellate courts. See Docket No. 12-5 at 12-13 (“Second,
defendant contends that the trial court erred when it ignored his request in April 2007 to
dismiss his appointed attorneys and represent himself. But defendant raised
arguments concerning his right to self-representation on direct appeal. And, although
he did not specifically challenge the trial court’s action at the April 2007 hearing on
direct appeal, he could have done so.”).
In some instances, ineffective assistance of direct appeal counsel can establish
cause to overcome a procedural default, but the ineffective assistance of appellate
counsel claim must first be raised as an independent constitutional claim in state court.
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See Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). Here, the record before the
Court does not demonstrate Mr. Donis fairly presented to the state courts any claim
that direct appeal counsel was ineffective with respect to the self-representation claim.
Therefore, Mr. Donis’ claim regarding the denial of his right to self-representation from
April 30, 2007 to October 12, 2007 is not properly before the Court.
With respect to the claim Mr. Donis actually raised and exhausted on direct
appeal, i.e., the trial court erred by revoking his right to represent himself on November
5, 2007 and by reappointing counsel, Mr. Donis fails to demonstrate he is entitled to
relief under § 2254(d). He does not argue the state court’s decision is contrary to
clearly established federal law. He does argue that his conduct was not disruptive, but
he fails to present clear and convincing evidence to overcome the presumption of
correctness that attaches to the state court’s factual finding that he “persistently
engaged in obstreperous conduct throughout pretrial proceedings.” Docket No. 12-3 at
6. And based on the presumptively correct factual determination that he persistently
engaged in disruptive and obstreperous conduct throughout pretrial proceedings, the
state court’s rejection of this claim is not an unreasonable application of clearly
established federal law. See McKaskle v. Wiggins, 465 U.S. 168, 173 (1984) (the right
to self-representation is contingent on the defendant being “able and willing to abide by
rules of procedure and courtroom protocol”); Faretta, 422 U.S. at 834 n. 46 (noting that
“the trial judge may terminate self-representation by a defendant who deliberately
engages in serious and obstructionist misconduct”).
For these reasons, Mr. Donis is not entitled to relief with respect to claim 15.
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C. Claim 16
Mr. Donis contends in claim 16 that the trial court misadvised him about the
effects of testifying at trial. Specifically, he alleges he was advised that the prosecution
could ask whether his prior convictions resulted from a guilty plea or trial, which was
incorrect. The Colorado Court of Appeals reasoned as follows in addressing this claim
in postconviction proceedings:
Defendant did not testify at trial. He contends that the trial court’s
advisement about his right to testify was defective. He continues by
asserting that he would have testified if the trial court had advised him
properly. We reject this contention.
To ensure that defendants’ waivers of the right to testify are
voluntary, knowing, and intelligent, trial courts must advise them of five
factors: (1) they have a right to testify; (2) no one can prevent them from
testifying; (3) the prosecution may cross-examine them if they testify; (4)
such cross-examination may include questions about prior felony
convictions; and (5) if cross-examination discloses prior convictions, then
trial courts will instruct juries to consider those convictions only in the
context of evaluating the defendants’ credibility. People v. Curtis, 681 P.2d
504, 514 (Colo. 1984).
The trial court in this case also advised defendant that the
prosecution could ask him whether any prior felony convictions that he
may have had were the products of jury trials or guilty pleas. (Defendant
had previously pled guilty to robbery in an unrelated case. He admitted
that he had used a deadly weapon when he committed that crime.)
Defendant points out that, in People v. Gomez, 211 P.3d 53, 57 (Colo.
App. 2008), abrogated on other grounds by Moore v. People, 2014 CO 8,
the division held that such an additional advisement was improper.
But the division did not decide Gomez until after the jury in this
case convicted defendant. So the trial court could not have been aware of
Gomez when it advised defendant about the parameters of his right to
testify. See People v. Valdez, 2014 COA 125, ¶ 27 (“[W]here the law is
unsettled, the trial court’s alleged error with respect to the law cannot
constitute plain error.”).
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What if we assume, without deciding, that we should apply
Gomez’s subsequent decision to this case? See Henderson v. United
States, ___ U.S. ___, ___, 133 S. Ct. 1121, 1130-31 (2013). We would
nonetheless conclude that the record supports the trial court’s decision.
Gomez does not require a postconviction court to grant a
defendant’s request for a new trial if the prosecution can show that,
despite the error, the defendant’s “waiver was voluntary, knowing, and
intentional because he ‘nevertheless did understand fully his right to
testify.’” Gomez, 211 P.3d at 57 (quoting People v. Harding, 104 P.3d 881,
885 (Colo. 2005)).
After weighing all the testimony and evaluating the credibility of
each witness, the postconviction court in this case found that (1) the
improper advisement did not affect defendant’s decision that he would not
testify; and (2) defendant’s waiver of the right to testify was voluntary,
knowing, and intelligent. We conclude, for the following reasons, that the
record supports these findings.
“[I]t is within the province of the [postconviction] court, as trier of
fact, to determine the credibility of . . . witnesses and the weight to be
given their testimony; if the evidence supports the findings and judgment
of the [postconviction] court, they will not be disturbed on review.” People
v. McDaniel, 74 P.3d 454, 456 (Colo. App. 2003) (citing Sickich, 935 P.2d
at 73).
One of defendant’s trial attorneys testified that whether defendant’s
prior felony conviction for robbery with a deadly weapon was the product
of a guilty plea or a trial was not a “central concern” in assessing the risks
that defendant faced if he testified. Rather, his trial attorneys were more
concerned with disclosing to the jury that defendant had previously been
convicted of robbery with a deadly weapon. And defendant’s testimony
would have led to that prejudicial fact being disclosed even if the trial court
had clairvoyantly advised him consistently with the division’s holding in
Gomez.
It was within the postconviction court’s province to evaluate the trial
attorney’s credibility and to give that testimony weight. See id. We
conclude that the record supports the postconviction court’s decision to
rely on that testimony when it made its findings, so we will not disturb that
decision on review. See id.
Docket No. 12-5 at 7-11.
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It is clear that the right to testify in one’s own defense is a constitutional right.
See Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). However, “the Supreme Court has
never articulated the standard for assessing whether a criminal defendant has validly
waived his right to testify or determined who has the burden of production and proof
under particular circumstances.” Jenkins v. Bergeron, 824 F.3d 148, 153 (1st Cir.
2016); see also Turley v. Estep, 375 F. App’x. 867, 870 (10th Cir. 2010) (unpublished)
(denying federal habeas relief for the petitioner’s claim challenging a defective Curtis
advisement because “there is no general requirement [under federal law] . . . that a trial
court inquire into a defendant’s decision whether to testify, much less advise a
defendant regarding the potential consequences of that decision”); Moore v. Williams,
825 F. App’x 586, 588 (10th Cir. 2020) (same). As noted above, the existence of
clearly established federal law is the threshold inquiry under § 2254(d)(1), and the
absence of clearly established federal law is the end of the Court’s inquiry. See House,
527 F.3d at 1018.
To the extent Mr. Donis argues the state court decision is based on an
unreasonable determination of the facts in light of the evidence presented, the Court
disagrees. The Colorado Court of Appeals determined as a factual matter that “the
improper advisement did not affect defendant’s decision that he would not testify.”
Docket No. 12-5 at 10. The Court presumes this factual finding is correct, and Mr.
Donis fails to present clear and convincing evidence to rebut the presumption of
correctness. See 28 U.S.C. § 2254(e)(1). Thus, the Court cannot conclude that Mr.
Donis has shown “the state courts plainly misapprehended or misstated the record in
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making their findings, and the misapprehension goes to a material factual issue that is
central to [his] claim.” Smith, 824 F.3d at 1241.
For these reasons, Mr. Donis is not entitled to relief with respect to claim 16.
IV. CONCLUSION
For the reasons discussed in this order, Mr. Donis is not entitled to relief on any
of his remaining claims. Mr. Donis also is not entitled to relief on the new cumulative
error claim he raises in his reply because the Court has not found any individual errors.
Docket No. 29 at 25. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254, Docket No. 1, is denied and this case is dismissed with prejudice. It is
further
ORDERED that there is no basis on which to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c).
DATED October 15, 2026.
BY THE COURT:
PHILIP A. BRIMMER
United States District Judge
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