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Baertschy v. Raemisch

United States Court of Appeals, Tenth Circuit

February 28, 2019

MARK BAERTSCHY, Petitioner - Appellant,
v.
RICK RAEMISCH, Executive Director, Colorado Department of Corrections, BARRY GOODRICH, Warden, Bent County Correctional Facility, PHIL WEISER, Attorney General, State of Colorado, [*] Respondents - Appellees.

          (D.C. No. 1:17-CV-02048-RPM) (Colo.)

          Before PHILLIPS, McKAY, and O'BRIEN, Circuit Judges.

          ORDER DENYING CERTIFICATE OF APPEALABILITY

          TERRENCE L. O'BRIEN UNITED STATES CIRCUIT JUDGE

         In 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

          *

          2006, 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.

         In late 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.[1] 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 the deadline.

         Baertschy 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.

         Baertschy 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.

         The 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.

         Baertschy then brought his ineffective assistance of counsel claim to federal court via a counseled 28 U.S.C. § 2254 petition.[2] 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 Court.

         A COA 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 omitted).

         In 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).

         Baertschy 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 support it.

         A. "Contrary to" Supreme Court ...


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