No. 1:17-CV-02048-RPM) (Colo.)
PHILLIPS, McKAY, and O'BRIEN, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
TERRENCE L. O'BRIEN UNITED STATES CIRCUIT JUDGE
2002, Mark Baertschy, then a physics professor at the
University of Colorado, began mentoring 10-year-old J.A.
through a Boulder, Colorado, program for at-risk youths. He
met with J.A. once or twice a week. Two years later, the
relationship turned sexual. It started with Baertschy rubbing
J.A.'s penis while J.A. watched pornography on
Baertschy's computer; it progressed to oral and anal sex.
The abuse ended in March
when J.A. reported Baertschy to his family, who in turn
reported him to the police. For this conduct, Baertschy was
charged in Colorado state court with (1) sexual assault on a
child by one in a position of trust, a Class 3 felony, and
(2) sexual assault on a child, pattern of abuse, also a Class
3 Felony. The State later added a third count, sexual
exploitation of a child, a misdemeanor. Baertschy retained R.
Scott Reisch to represent him.
September or early October 2006, the State offered Baertschy
a plea deal: plead guilty to sexual assault on a child and
sexual exploitation of a child in exchange for
lifetime probation on the former and a sentence to be
determined by the judge (an open sentence) on the latter. The
deadline for acceptance was October 12. Reisch, however,
misstated the offer to Baertschy, telling him it required him
to plead guilty to sexual assault on a child and Class 3
felony enticement of a child in exchange for
lifetime probation on the former and an open but determinate
sentence on the latter. He also failed to inform Baertschy of
proceeded to trial, where he testified he never had sexual
contact with J.A. While he acknowledged the hand-grabbing
incidents occurred, he claimed to have immediately pulled his
hand away each time. The jury did not buy it and he was
convicted of sexual assault on a child, pattern of abuse, a
Class 3 felony. He was sentenced to an indeterminate term of
20 years to life in prison. The Colorado Court of Appeals
(CCA) affirmed on direct appeal and the Colorado Supreme
Court denied certiorari review.
filed a state petition for post-conviction relief arguing,
inter alia, Reisch was ineffective in failing to
properly advise him of the State's plea offer including
the deadline for accepting it. The state trial court held an
evidentiary hearing. Relevant here, Reisch testified about
Baertschy's lack of interest in taking a plea offer
because he was "adamant" about being innocent:
"From the time that we met to the time that we went to
trial [and during trial] he never said I want a deal, get me
a deal, I want a better deal or a different deal. It was
I'm innocent." (R. Vol. 2 at 241, 298.) Baertschy,
on the other hand, testified to having wanted to pursue a
better deal but, if unsuccessful, he would have accepted the
offer outlined to him by Reisch.
state trial judge decided Reisch's advice concerning the
charges and possible penalties "probably met the minimum
standards" of professional competence. (R. Vol. 2 at
406.) However, he found Reisch to have failed to communicate
the plea offer deadline to Baertschy and that failure fell
below the "objective standard of reasonableness,"
satisfying the first prong of Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). (Id.
at 407.) Nevertheless, the judge decided Baertschy had failed
to establish he was prejudiced as a result. See id.
at 687 (to state an ineffective assistance of counsel claim,
petitioner must show both that "counsel's
performance was deficient" and "the deficient
performance prejudiced the defense"). Relevant here, he
found Reisch's testimony that Baertschy "never would
have accepted a plea bargain" to be "credible"
and Baertschy's testimony to the contrary "not
credible" and "impossible to believe." (R.
Vol. 2 at 408, 411, 420.) The CCA affirmed and the Colorado
Supreme Court denied certiorari review.
then brought his ineffective assistance of counsel claim to
federal court via a counseled 28 U.S.C. § 2254
petition. The district judge assumed Reisch was
deficient in misstating the plea offer and failing to inform
Baertschy of the deadline for accepting it. Nevertheless, he
decided the state courts' collective decision that
Baertschy was not prejudiced by these deficiencies to be
neither "contrary to, or . . . an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States,"
nor "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)(1), (2). In so
concluding, he accepted as correct the state trial
judge's credibility determination, which the CCA did not
disturb. The judge denied a certificate of appealability
(COA); Baertschy renews his request for a COA with this
is a jurisdictional prerequisite to our review of a petition
for a writ of habeas corpus. 28 U.S.C. § 2253(c)(1);
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To
obtain one, Baertschy must make "a substantial showing
of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). He must establish that "reasonable
jurists could debate whether . . . the petition should have
been resolved [by the district court] in a different manner
or that the issues presented were adequate to deserve
encouragement to proceed further." Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quotation marks
deciding whether to grant a COA, we incorporate the
deferential treatment of state court decisions required by
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). See Davis v. McCollum, 798 F.3d 1317, 1319
(10th Cir. 2015). Because the state courts ruled on the
merits of Baertschy's claims, he is entitled to relief
under AEDPA "only if [their] decision 'was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States,' or was 'based on an
unreasonable determination of the facts in the light of the
evidence presented in the State court proceeding.'"
Id. (quoting 28 U.S.C. § 2254(d)(1), (2)).
"Thus, the decision whether to grant [Baertschy's]
COA request rests on whether reasonable jurists would find
the district court's assessment of the constitutional
claims debatable or wrong in light of the deference owed to
the [state courts'] adjudication of [his] claims."
Howell v. Trammell, 728 F.3d 1202, 1225 (10th Cir.
2013) (quotation marks omitted).
has a tough row to hoe. The state trial judge's
credibility determination, which the CCA did not disturb,
must be accepted as correct in these proceedings absent clear
and convincing evidence to the contrary. See 28
U.S.C. § 2254(e)(1) ("In a [§ 2254
proceeding], a determination of a factual issue made by a
State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.");
Ellis v. Raemisch, 872 F.3d 1064, 1071 n.2 (10th
Cir. 2017) (stating "[c]redibility findings are ones of
fact" presumed to be correct under § 2254(e)(1)).
Undaunted, Baertschy claims we are not bound by the state
courts' prejudice decision for two reasons. First, it is
"contrary to" Supreme Court precedent. 28 U.S.C.
§ 2254(d)(1); Trammell v. McKune, 485 F.3d 546,
550 (10th Cir. 2007) ("AEDPA's deferential standard
does not apply if the state court employed the wrong legal
standard in deciding the merits of the federal issue."
(quotation marks omitted)). Second, the record does not
"Contrary to" Supreme Court ...