Stice v. Bergman

OCR transcription for search; preserved printed pages are authoritative

Case No. 1:24-cv-01846-CNS Document 35 __ filed 03/03/25 USDC Colorado pgi
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 24-cv-01846-CNS
CRAIG MARTIN STICE,
Applicant,

V.

BERGMAN, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

Applicant Craig Martin Stice has filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254, ECF No. 1, challenging the validity of his judgment
of conviction in Arapahoe County District Court Case No. 17CR1964. Having considered
the Application, Respondents’ Answer, ECF No. 33, Applicant’s Reply Brief, ECF No. 34,
and the state court record, the Court DENIES the Application.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Colorado Court of Appeals (CCA) summarized the facts of Applicant’s case

as follows:
At trial, the People presented evidence from which the jury
could find the following facts. The victim’s father lived at
Stice’s house. For about two years, the victim spent every
other weekend with her father at Stice’s house. The victim

often spent the night. Stice was usually the first one awake in
the morning, followed by the victim. On many of these

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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mornings, Stice sexually assaulted the victim in a reclining
chair in his living room.
Stice initiated the assaults by asking the victim if she wanted
to learn about the human body. Stice then touched and
described body parts until he was touching the victim’s vagina
and breasts. Stice also made the victim touch his penis. The
victim testified that this abuse happened repeatedly, at the
same time of day, in the reclining chair. The victim was eight
years old when the sexual abuse began.
After Stice’s conduct was reported to the police, a police
detective asked the victim’s father to make a pretextual phone
call to Stice to obtain inculpatory statements. The victim’s
father agreed and called from his cell phone. The detective
recorded the call. Stice did not know the police were listening
to the call or recording it.
Stice answered the call while driving to work. After the victim’s
father asked Stice repeatedly whether he had inappropriate
contact with the victim, Stice stated that they had hugged, but
nothing more. Stice repeatedly stated that he “wasn’t going to
say anything” and repeatedly asked whether the victim’s
father wanted him to go to jail. Stice eventually hung up. The
call lasted about five minutes.
The prosecution charged Stice with four counts of sexual
assault on a child by one in a position of trust as a pattern of
abuse, and four counts of sexual assault on a child as a
pattern of abuse. The jury convicted Stice on all counts.
ECF No. 12-5 at 2–3.
The trial court sentenced him to 14 years to life in prison. ECF No. 12-1 at
13. Applicant appealed, and the CCA affirmed his conviction and sentence. ECF
No. 12-5. The Colorado Supreme Court (CSC) denied his petition for writ of
certiorari. ECF No. 12-6.
Applicant then filed a motion to reconsider his sentence under Colo. Crim. P. Rule
35(b), which the court denied. ECF No. 12-1 at 4–8. Applicant did not appeal. Id. He also
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sought postconviction relief under Colo. Crim. P. Rule 35(c), which the postconviction
court denied as well. Id. at 4. Applicant appealed this decision, the CCA affirmed the order
denying relief, and the CSC denied certiorari review. ECF No. 12-7; ECF No. 12-10; and
ECF No. 12-11.
In the Application filed pursuant to 28 U.S.C. § 2254, Applicant asserts that his
Sixth Amendment rights were violated because trial counsel was ineffective on the
following three grounds:
(1) 	Trial counsel failed to obtain medical records and present Applicant’s
“medical vulnerabilities” to the jury in connection with a pretext call
with the victim’s father that was admitted as evidence against him.
(2) 	Trial counsel failed to impeach the inconsistent testimony of A.Q.
(3) 	Trial counsel failed to present evidence of a prior alleged victim’s
medical report from an earlier sexual assault trial where Applicant
was acquitted.
ECF No. 1 at 7–11.
On October 17, 2024, the Court directed Respondents to file an Answer fully
addressing the merits of the claims asserted in the Application. See ECF No. 19.
Respondents submitted their Answer on December 18, 2024. See ECF No. 33. On
January 10, 2025, Applicant filed his Reply. ECF No. 34.
II. STANDARD OF REVIEW
Title 28 U.S.C. ' 2254(d) of the Antiterrorism and Effective Death Penalty Act
(AEDPA) 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:
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(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). The applicant bears the burden of proof under ' 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
A claim may be adjudicated on the merits in state court even in the absence of a
statement of reasons by the state court for rejecting the claim. Harrington v. Richter, 562
U.S. 86, 98-99 (2011). In particular, Adetermining whether a state court=s decision resulted
from an unreasonable legal or factual conclusion does not require that there be an opinion
from the state court explaining the state court=s reasoning.@ Id. at 98. Thus, A[w]hen a
federal claim has been presented to a state court and the state court has denied relief, it
may be presumed that the state court adjudicated the claim on the merits in the absence
of any indication or state-law procedural principles to the contrary.@ Id. at 99. Even
A[w]here a state court=s decision is unaccompanied by an explanation, the habeas
petitioner=s burden still must be met by showing there was no reasonable basis for the
state court to deny relief.@ Id. at 98. In other words, this Court Aowe[s] deference to the
state court=s result, even if its reasoning is not expressly stated.@ Aycox v. Lytle, 196 F.3d
1174, 1177 (10th Cir. 1999). Therefore, the Court Amust uphold the state court=s summary
decision unless [the Court=s] independent review of the record and pertinent federal law
persuades 	[the 	Court] 	that 	its 	result 	contravenes 	or 	unreasonably 	applies 	clearly
established federal law, or is based on an unreasonable determination of the facts in light
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of 	the 	evidence 	presented.@ 	Id. 	at 	1178. 	A[T]his 	>independent 	review= 	should 	be
distinguished from a full de novo review of the petitioner=s claims.@ Id.
The Court reviews claims of legal error and mixed questions of law and fact
pursuant to 28 U.S.C. ' 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir.
2003). The threshold question the Court must answer under ' 2254(d)(1) is whether the
applicant seeks to apply a rule of law that was clearly established by the Supreme Court
at the time of the relevant state court decision. See Greene v. Fisher, 565 U.S. 34 (2011).
Clearly established federal law Arefers to the holdings, as opposed to the dicta, of [the
Supreme] Court=s decisions as of the time of the relevant state-court decision. Id. at 412.
Furthermore,
clearly established law consists of Supreme Court holdings in
cases where the facts are at least closely-related or similar to
the case sub judice. Although the legal rule at issue need not
have had its genesis in the closely-related or similar factual
context, the Supreme Court must have expressly extended
the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established
federal law, that is the end of the Court=s inquiry pursuant to ' 2254(d)(1). See id. at 1018.
If a clearly established rule of federal law is implicated, the Court must determine
whether the state court=s decision was contrary to or an unreasonable application of that
clearly established rule of federal law. See Williams v. Taylor, 529 U.S. 362, 404–05
(2000).
A state-court decision is contrary to clearly established federal
law if: (a) the state court applies a rule that contradicts the
governing law set forth in Supreme Court cases or (b) the
state 	court 	confronts 	a 	set 	of 	facts 	that 	are 	materially
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indistinguishable from a decision of the Supreme Court and
nevertheless arrives at a result different from [that] precedent.
Maynard [v. Boone], 468 F.3d [665], 669 [(10th Cir. 2006)]
(internal 	quotation 	marks 	and 	brackets 	omitted) 	(quoting
Williams, 529 U.S. at 405). AThe word >contrary= is commonly
understood 	to 	mean 	>diametrically 	different,= 	>opposite 	in
character or nature,= or >mutually opposed.=@ Williams, 529
U.S. at 405 (citation omitted).
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. at 407-08. Additionally,
we have recognized that an unreasonable application may
occur 	if 	the 	state 	court 	either 	unreasonably 	extends, 	or
unreasonably 	refuses 	to 	extend, 	a 	legal 	principle 	from
Supreme Court precedent to a new context where it should
apply.
House, 527 F.3d at 1018.
The Court=s inquiry pursuant to the Aunreasonable application@ clause is an
objective inquiry. See Williams, 529 U.S. at 409-10. A[A] federal habeas court may not
issue the writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather that application must also be unreasonable.@ Id. at 411. A[A] decision
is >objectively unreasonable= when most reasonable jurists exercising their independent
judgment would conclude the state court misapplied Supreme Court law.@ Maynard, 468
F.3d at 671. In addition,
evaluating 	whether 	a 	rule 	application 	was 	unreasonable
requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations. [I]t is not an unreasonable
application of clearly established Federal law for a state court
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to decline to apply a specific legal rule that has not been
squarely established by [the Supreme] Court.
Harrington, 562 U.S. at 101 (internal quotation marks omitted). In conducting this
analysis, the Court Amust determine what arguments or theories supported or . . . could
have supported[ ] the state court’s decision and then ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the holding
in a prior decision of [the Supreme] Court.@ Id.
Under this standard, Aonly the most serious misapplications of Supreme Court
precedent will be a basis for relief under ' 2254.@ Maynard, 468 F.3d at 671; see also
Harrington, 562 U.S. at 88 (stating that Aeven 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.
Harrington, 562 U.S. at 102.
A[R]eview under ' 2254(d)(1) is limited to the record that was before the state court
that adjudicated the claim on the merits.@ Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
The Court reviews claims asserting factual errors pursuant to 28 U.S.C. '
2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10th Cir. 2002). 	Section
2254(d)(2) allows the federal 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.
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Pursuant to ' 2254(e)(1), the Court must presume that the state court’s factual
determinations 	are 	correct, 	and 	the 	petitioner 	bears 	the 	burden 	of 	rebutting 	the
presumption by clear and convincing evidence. AThe standard is demanding but not
insatiable . . . [because] >[d]eference does not by definition preclude relief.=@ Miller-El v.
Dretke, 545 U.S. 231, 240 (2005) (quoting Miller- El v. Cockrell, 537 U.S. 322, 340
(2003)).
The federal habeas court applies a de novo standard of review to constitutional
claims that were not reviewed on the merits by the state courts. See Mitchell v. Gibson,
262 F.3d 1036, 1045 (10th Cir. 2001).
III. ANALYSIS OF APPLICANT’S INNEFFECTIVE
ASSISTANCE OF COUNSEL CLAIMS
As noted above, Applicant asserts the following three ineffective assistance of
counsel claims:
(1) 	Trial counsel failed to obtain medical records and present Applicant’s
“medical vulnerabilities” to the jury in connection with a pretext call
with the victim’s father that was admitted as evidence against him.
(2) 	Trial counsel failed to impeach the inconsistent testimony of A.Q.
(3) 	Trial counsel failed to present evidence of a prior alleged victim’s
medical report from an earlier sexual assault trial where Applicant
was acquitted.
ECF No. 1 at 7–11.
The Sixth Amendment generally requires that defense counsel=s assistance to the
criminal defendant be effective. See Strickland v. Washington, 466 U.S. 668, 685-86
(1984). To prevail on a claim of ineffective assistance of counsel, a habeas petitioner
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must show both that (1) his counsel’s performance was deficient—i.e., that identified acts
and omissions were outside the wide range of professionally competent assistance, and,
(2) he was prejudiced by the deficient performance—i.e., that there is a reasonable
probability that but-for counsel’s unprofessional errors the result would have been
different. Id.
“A court considering a claim of ineffective assistance must apply a ‘strong
presumption’ that counsel’s representation was within the ‘wide range’ of reasonable
professional assistance.” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at
689). See also Wiggins v. Smith, 539 U.S. 510, 521 (2003). In other words, there is a
rebuttable presumption that “an attorney acted in an objectively reasonable manner and
that an attorney’s challenged conduct might have been part of a sound trial strategy.”
Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir. 2002) (emphasis omitted). “There are
countless ways to provide effective assistance in any given case,” and “[e]ven the best
criminal defense attorneys would not defend a particular client in the same way.”
Strickland, 466 U.S. at 689. The federal habeas court’s review of the state appellate
court’s disposition of an ineffective assistance claim under the AEDPA is “doubly
deferential.” Cullen, 563 U.S. at 190. This means that the court “defer[s] to the state
court’s determination that counsel's performance was not deficient and, further, defer[s]
to the attorney's decision in how to best represent a client.” Grant v. Royal, 886 F.3d 874,
903 (10th Cir. 2018) (internal quotation marks and citations omitted).
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“With respect to prejudice, . . . ‘[a] reasonable probability is a probability sufficient
to undermine confidence in the outcome.’” Strickland, 466 U.S. at 694. “The likelihood of
a different result must be substantial, not just conceivable.” Id. at 693.
In rejecting Applicant’s ineffective effective assistance of counsel claims in
postconviction proceedings, the CCA set forth the Strickland standard as follows:
To sufficiently allege a claim of ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668 (1984),
a defendant must (1) “identify the acts or omissions of counsel
that are alleged not to have been the result of reasonable
professional judgment” (the deficiency prong), id. at 690; and
(2) “assert facts that, if true, show a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different” (the prejudice prong),
People v. Timoshchuk, 2018 COA 153, ¶ 22. When the
allegations 	in 	a 	defendant’s 	Crim. 	P. 	35(c) 	ineffective
assistance of counsel claim (1) are bare and conclusory; (2)
would fail to establish one or the other prong of the Strickland
test, even if true; or (3) are directly refuted by the record, the
postconviction court may deny the claim without appointing
counsel or conducting an evidentiary hearing. People v.
Duran, 2015 COA 141, ¶ 9; see Crim. P. 35(c)(3)(IV); see also
Silva, 156 P.3d at 1168.
ECF No. 12-10 at 4-5.
A. Claim One: “Medical Vulnerabilities before Pretext Call”
Applicant first challenges counsel’s failure “to obtain [his] medical records and
present [his] mental vulnerabilities,” including a prior traumatic brain injury and the “taking
[of] Donepezil (Aricept) for memory loss at the time of the [pretext] call” with the victim’s
father. ECF No. 1 at 7–8.
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1. 	State court proceedings
In postconviction proceedings, Applicant claimed “that his counsel’s performance
was deficient because counsel failed to obtain medical records and to present evidence
of his physical and mental vulnerabilities.” ECF No. 12-10 at 8. The CCA found that
Applicant failed to allege Strickland prejudice. In rejecting this claim, the CCA observed:
During the investigation of D.M.’s allegations, D.M.’s father
initiated a supervised and recorded phone call to Stice from
the Arapahoe County Sheriff’s Office. Stice was driving to his
chiropractic office at the time of the call, and he was not
informed that the call was recorded. In the call, D.M.’s father
told Stice that D.M. alleged that Stice had touched her
inappropriately and asked Stice several times to tell him what
happened. Stice admitted that he and D.M. had hugged each
other but otherwise refused to talk about it. Stice admitted no
criminal acts.
Defense counsel moved to suppress the call, arguing that
Stice’s statements had been involuntary. After an evidentiary
hearing, 	the 	trial 	court 	found 	Stice’s 	statements 	to 	be
voluntary and denied the motion. The prosecution published
a redacted version of the recorded call at trial. On direct
appeal, a division of this court concluded that the call was
admissible because Stice’s will was not overborne and there
had 	been 	no 	coercive 	governmental 	conduct, 	threats,
promises, or evidence that Stice had mental or physical
vulnerabilities. Stice, No. 19CA0626, slip op. at ¶ 12.
In his postconviction motion, Stice claims that his counsel’s
performance was deficient because counsel failed to obtain
medical records and to present evidence of his physical and
mental vulnerabilities.[FN 2] But Stice fails to allege Strickland
prejudice. He neither alleges any reason why evidence that
he 	suffered 	symptoms 	from 	a 	car 	accident 	would 	have
persuaded the trial court that his statements were involuntary
nor asserts facts showing that he probably would have been
acquitted if the phone call had been suppressed. His belated
and conclusory assertion on appeal — that with the medical
evidence, the pretext call may not have been admitted, which
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could have weakened the prosecution’s case and resulted in
a different outcome — does not rescue his claim.
We conclude that the postconviction court properly rejected
this claim, without a hearing and without appointing counsel,
because it is bare and conclusory and fails to allege Strickland
prejudice. See People v. Smith, 2017 COA 12, ¶¶ 25-26; see
also Duran, ¶ 9; Silva, 156 P.3d at 1168.
[FN 2:] Stice alleges that due to a car accident eight months
prior to the call, he was taking medication and limited by
memory loss and a torn labrum in his hip. As a result, he says,
he was anxious, confused, and in severe pain during the call.
Id. at 7–8.
2. Application of AEDPA standard of review
Applicant does not contend that he is entitled to relief under the “contrary to”
component of § 2254(d)(1) because the CCA identified and applied the correct legal
standard, Strickland v. Washington, 466 U.S. 668 (1984). Applicant also 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.
Applicant 	also 	fails 	to 	demonstrate 	that 	the 	state 	court 	decision 	was 	an
unreasonable application of clearly established federal law under § 2254(d)(1). Applicant
contends that “[t]he jury should have had a chance to review [his] medical records to
determine his vulnerabilities” and “[o]nly then, would the Jury dismiss the pretext call and
thus weaken[] the case and hav[e] a reasonable probability of a different outcome,
meeting the second test of Strickland.” ECF No. 1 at 8. The Court finds that the CCA
reasonably concluded that Applicant’s “bare and conclusory” assertion of prejudice falls
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short of his burden under Strickland. See e.g., Ellis v. Raemisch, 872 F.3d 1064, 1084
(10th Cir. 2017) (finding mere speculation that a defendant has been prejudiced by
counsel’s conduct is insufficient under Strickland); Hooks v. Workman, 689 F.3d 1148,
1187 (10th Cir. 2012) (same). Applicant does not demonstrate that trial counsel’s failure
to obtain medical records and present evidence of his vulnerabilities prejudiced him by
depriving him of a fair trial with a reliable result. The Court, thus, finds that the CCA’s
resolution of this ineffective assistance claim was reasonable under Strickland. Ultimately,
Applicant has not shown that the state court ruling “was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
In addition, Applicant fails to demonstrate that the state court decision involved an
unreasonable determination of the facts under § 2254(d)(2). The state court’s factual
findings are presumed correct. See 28 U.S.C. § 2254(e)(1). Applicant specifically
challenges the CCA’s finding that “there had been no . . . evidence that Stice had mental
or physical vulnerabilities.” ECF No. 12-10 at 7; ECF No. 34 at 2. The CCA’s factual
determination, however, is supported by the state court record. See Court R. at 175
(“[t]here 	was 	no 	evidence 	that 	Defendant 	had 	a 	mental 	or 	physical 	vulnerability
immediately prior to the telephone conversation, nor that any such vulnerability was
exploited”); Trial Tr. 3/22/2018 at 67–69 (testimony and argument regarding Mr. Stice’s
mental and physical condition during pretext phone call during hearing). Applicant does
not overcome the presumption of correctness that applies to the CCA’s factual finding
because he fails to point to “clear and convincing evidence” that would have altered the
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state court’s factual finding. Hooks, 689 F.3d at 1164. In fact, the record refutes
Applicant’s conclusory allegation of prejudice because Applicant did not confess to any
crime in the pretext call. See Trial. Tr. 11/16/2018 at 29–30, 37–39. This Court, therefore,
finds the state court’s conclusion that Applicant’s “bare and conclusory” claim failed to
allege Strickland prejudice was not based upon an unreasonable determination of the
facts in light of the record before the state courts.
Even assuming that Applicant’s medical records would have shown that he
suffered from a traumatic brain injury due to an automobile accident eight months earlier
and that he was taking medication for memory loss, this evidence would not necessarily
establish that he was suffering from any vulnerability at the time of the phone call, much
less that he suffered from a medical vulnerability to a degree that any statements made
were involuntary so that the pretext call would have been suppressed, which would have
weakened the prosecution’s case and resulted in a different outcome.
For these reasons, Applicant is not entitled to federal habeas relief with respect to
Claim One.
B. Claim Two: “Failure to impeach witness A.Q.”
Applicant next maintains that trial counsel was ineffective in failing to impeach A.Q.
based on inconsistent testimony. ECF No. 1 at 8. He specifically claims that in pretrial
proceedings, A.Q. stated “[The victim] told me that this man was doing something bad to
her,” but during trial she testified that “[The victim] said the man was touching her and he
would make her touch him back.” (Id.). He claims that although defense counsel asked
A.Q., “you only mentioned to this police officer that [the victim] told you that she had
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touched the man’s private parts,” there was “no questions to A.Q. about her inconsistent
testimony.” Id. at 8–9. Applicant contends “[t]here would have been a reasonable
probability that outcome of the trial would have been changed” if defense counsel had
confronted “the witness A.Q. about the contradictory remarks.” Id. at 9.
1. State court proceeding
The CCA rejected Applicant’s impeachment claim as follows:
A.Q. testified about what D.M. had divulged to her in third or
fourth grade. As relevant here, she testified that D.M. said
“this man was touching her in her private areas and he would
make her touch him back.” Stice alleges that this testimony
was inconsistent with A.Q.’s pretrial statements, where A.Q.
didn’t report that D.M. said the man touched her. He further
alleges that defense counsel’s performance was deficient
because 	counsel 	refused 	to 	impeach 	A.Q. 	about 	this
discrepancy — due to a conflict of interest — and that if
counsel had impeached A.Q., a “different outcome of trial
could have occurred.”
This claim is directly refuted by the record. During A.Q.’s
cross-examination, defense counsel asked about her initial
phone conversation with a police officer, as follows:
DEFENSE COUNSEL: Now when you talked with that
police officer, you never told him that [D.M.] had told
you that this man had actually touched her anywhere;
does that sound right?
A.Q.: Can you repeat it?
DEFENSE COUNSEL: When you talked to that police
officer on the phone about what [D.M.] had told you in
the cafeteria, you never told the police officer that
[D.M.] had actually said that this man touched her?
A.Q.: Well, I don’t remember. It has been a while.
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DEFENSE COUNSEL: You only mentioned to this
police officer that [D.M.] had told you that she had
touched the man’s private parts?
A.Q.: Yes.
Defense 	counsel 	also 	cross-examined 	the 	testifying
investigator about this discrepancy.[FN 1]
[FN 1] To the extent Stice contends that A.Q. had previously
testified that D.M. said only that Stice “was doing something
bad to her” without giving further details, the record refutes his
argument.
Because the factual allegations underlying Stice’s claim are
refuted by the record, we conclude that the postconviction
court properly denied the claim without appointing counsel
and without a hearing. See Crim. P. 35(c)(3)(IV); Duran, ¶ 9;
Silva, 156 P.3d at 1168. Having reached this conclusion, we
need not address Stice’s assertion that defense counsel
operated under a conflict of interest.
ECF No. 12-10 at 5–6.
2. 	Application of AEDPA standard of review
Applicant again fails to demonstrate that the state appellate court’s ruling “was
contrary to” or “involved an unreasonable application of” Strickland under § 2254(d)(1).
Moreover, Applicant does not shown that the state appellate court’s conclusion involved
an unreasonable determination of the facts under § 2254(d)(2).
The CCA specifically determined the record refuted Applicant’s argument that
defense counsel failed to impeach A.Q. because the record reflected that counsel had
adequately questioned A.Q. during trial about conflicting testimony. See ECF No. 12-10
at 5–6. The CCA’s factual findings are presumed correct and are supported by the state
court record, which clearly reflects that defense counsel asked the witness about her
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previous inconsistent statements to the police. See Trial Tr. 3/22/2018 at 37-55 (A.Q.’s
pretrial testimony describing what the victim told her about the sexual abuse); Trial Tr.
11/14/2018 	at 	252–56 	(defense 	counsel 	cross-examining 	A.Q. 	about 	previous
inconsistent statement); Trial Tr. 11/16/2018 at 47 (defense counsel’s closing argument).
Applicant fails to explain what more defense counsel should have done, and he has not
adequately alleged how any additional impeachment of A.Q. would have changed the
outcome of the trial. Thus, he does not present clear and convincing evidence that rebuts
the presumption of correctness that attaches to the state court’s factual determination.
Accordingly, Applicant is not entitled to federal habeas relief for Claim Two.
C. Claim Three: “Prior Bad Act Exculpatory Evidence”
Applicant finally asserts that trial counsel was ineffective in failing to present
medical evidence from a previous trial in which Applicant was acquitted of sexually
assaulting his daughter. ECF No. 1 at 9–11. He claims that “[h]ad the previous bad act
exculpatory evidence been given it would have weakened the case and that a reasonable
probability of a different outcome of trial would have occurred thus meeting the second
prong of Strickland.” (Id. at 10).
1. State court proceedings
Applying the Strickland standard, the CCA rejected this claim as follows:
Stice’s twenty-six-year-old daughter, C.S., testified that Stice
had sexually assaulted her when she was nine years old. She
did 	not 	remember 	details 	about 	the 	assault, 	but 	she
remembered giving a forensic interview, which was played for
the jury. The allegations in C.S.’s interview bore a similarity to
D.M.’s allegations.
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In 	his 	postconviction 	motion, 	Stice 	claims 	that 	defense
counsel was ineffective for failing to present medical evidence
from his 2002 trial. Stice alleges that in the 2002 trial, a
doctor’s testimony and report indicated that C.S.’s genital
exam was consistent with sexual intercourse but consistent
with other explanations as well. He asserts that if defense
counsel had presented this evidence, “the jury would have
been more informed about the previous bad act evidence and
they may have come to another conclusion.” However, he
does not explain how counsel’s decision not to introduce this
minimally relevant and possibly prejudicial evidence was
unreasonable or assert facts showing a reasonable possibility
that this evidence would have persuaded the jury to acquit him
of D.M.’s sexual assault.
We 	cannot 	conclude 	that 	Stice’s 	bare 	and 	conclusory
allegations of Strickland deficiency and prejudice entitled him
to a hearing or appointment of counsel. See People v. Osorio,
170 P.3d 796, 799 (Colo. App. 2007). Thus, we conclude that
the postconviction court properly rejected this claim.
ECF No. 12-10 at 9–10.
2. Application of AEDPA standard of review
Again, Applicant does not contest that the CCA identified the correct governing
principle. Instead, he argues that the CCA unreasonably applied clearly established
federal law by finding that defense counsel’s failure to introduce the medical report was
neither deficient nor prejudicial. He also challenges the CCA’s factual determination that
the medical report was not exculpatory and “possibly prejudicial.”
The Court disagrees. The CCA reasonably recognized that the medical report was
potentially prejudicial. See ECF No. 1 at 9–10 (“The findings are compatible with [C.S.’s]
description 	of 	sexual 	abuse” 	and 	“Per 	Dr. 	Mckenzie 	Today 	consistent 	w/ 	sexual
intercourse But // Consistent w/ other explanations as well.”). Contrary to Applicant’s
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position, the statements in the medical report were not exculpatory. See e.g., Click v.
Quarterman, 	No. 2:07-CV-0147, 2008 WL 2930312, *6 (N.D. Tex. 2008) (unpublished)
(finding nurse’s testimony that there was no visible trauma on the victim during her
examination and that “such evidence was consistent with the assault of B.C. occurring as
alleged, i.e., digital penetration of B.C.’s vagina, and was also consistent with no
assaultive contact occurring,” was “neither exculpatory nor inculpatory, but merely a
nullity, neither helping nor hurting either side”). As such, Applicant’s allegations do not
demonstrate that the state appellate court’s finding was unreasonable.
In addition, it was entirely reasonable for the CCA to conclude that Applicant does
not “assert facts showing a reasonably possibility 	that this evidence would have
persuaded the jury to acquit him of D.M.’s sexual assault,” and that Applicant’s “bare and
conclusory allegations of Strickland deficiency and prejudice” do not entitle him to relief.
ECF No. 12-10 at 9–10.
Giving the state appellate court decision the deference it deserves, this Court has
little trouble concluding that Applicant has failed to meet his burden of showing that the
state court's ruling was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement.
See Harrington, 562 U.S. at 102.
Therefore, habeas relief is not available for Claim Three.
IV. ORDERS
For the reasons discussed above, it is
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Case No. 1:24-cv-01846-CNS Document 35 __ filed 03/03/25 USDC Colorado pg 20
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ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254, ECF No. 1, filed by Craig Martin Stice, is DENIED and this action is DISMISSED
WITH PREJUDICE. It is

FURTHER ORDERED that no certificate of appealability shall issue because
Applicant has not made a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2); Fed. R. Governing Section 2254 Cases 11(a); Slack v. McDaniel,
529 U.S. 473, 483-85 (2000). It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is

DENIED WITHOUT PREJUDICE to the filing of a motion seeking leave to proceed in
forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. The
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this dismissal
would not be taken in good faith.

DATED this 3rd day of March 2025.

BY T

@harlotté &- Syleeney
United &ta

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