Jawaun Ward v. Sean Pruitt; the Attorney General of the State of Colorado

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JAWAUN WARD,
Petitioner - Appellant,
v.
SEAN PRUITT; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
No. 21-1260
(D.C. No. 1:21-CV-00080-RM)
(D. Colo.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
Petitioner Jawaun Ward, a Colorado state prisoner proceeding pro se,1 seeks a
certificate of appealability (“COA”) to appeal the district court’s dismissal of his 28
U.S.C. § 2254 habeas corpus petition. We are persuaded reasonable jurists would not
debate the district court’s ruling, Miller-El v. Cockrell, 537 U.S. 322, 338 (2003), and
thus we deny Ward’s request for a COA and dismiss this matter.
* This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1 “Although we liberally construe pro se filings, we do not assume the role of
advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (internal quotation
omitted).
FILED
United States Court of Appeals
Tenth Circuit
October 14, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-1260 Document: 010110590399 Date Filed: 10/14/2021 Page: 1

-- 1 of 9 --

2
I
In December 2010, Ward and his then-girlfriend Marva Mitchell hatched a scheme
to steal from one of Mitchell’s former boyfriends. On December 27, 2010, the two went
to the victim’s house with the intent to break in. When they arrived, the victim was there,
so Mitchell proceeded to set up plans to meet with him later that day. The two met up as
planned, and Ward, along with another person, N.M., tackled the victim and placed him
in the backseat of Ward’s vehicle. They then drove to the victim’s home, where Ward
and N.M. placed the victim in his downstairs bathroom while Mitchell stole various
items. Before they left, Ward moved the victim to his furnace room. The next morning,
the victim was found dead by his brother, hog-tied with a plastic bag over his head. The
brother reported the death to the police, including that the victim told him before his
death that Mitchell had visited him accompanied by a large man, and the two had been
driving a white Dodge Durango.
Early on the morning of January 3, 2011, Ward and Mitchell were stopped while
driving a white Dodge Durango. The officer initiated the stop because the car appeared
to be lacking a valid license plate. After approaching the vehicle, however, the officer
saw a valid temporary tag on the vehicle. At this point, her reasonable suspicion for the
stop had ended. Nevertheless, she still requested identification from both Ward and
Mitchell, and upon notifying dispatch, was told to impound the vehicle and take the two
into the station for questioning, as the vehicle fit the description given to the police by the
murder victim’s brother.
Appellate Case: 21-1260 Document: 010110590399 Date Filed: 10/14/2021 Page: 2

-- 2 of 9 --

3
Later that same day, January 3, 2011, Mitchell gave an interview about the events
of the prior day, and she implicated another man, R.C., along with Ward and N.M. She
was reinterviewed on January 14, 2011, but the recording of that interview was lost;
Ward was not made aware of this fact until after his trial had concluded, and no one can
recall what was said during the January 14 interview. Mitchell was interviewed again on
August 30, 2012, when she gave an account incriminating herself, Ward, and N.M.
Mitchell ultimately pleaded guilty to second-degree murder. As part of her plea, she
agreed to testify truthfully at Ward’s trial.
When preparing for Ward’s trial, Ward’s counsel received a video advisement of
the January 14 interview, but no corresponding video. Ward’s counsel admits his
oversight in failing to discover this discrepancy. The police later claimed the recording
of the interview had been deleted from the police department’s hard drive.
At his trial in June 2013, Ward claimed Mitchell had falsely implicated him, just
as she had previously implicated R.C., to avoid taking responsibility for her role in the
crime and to hopefully receive a lesser sentence. Ward’s counsel repeatedly questioned
Mitchell regarding her various statements to the police, including her false statements,
her inconsistencies, and her motives for finally confessing. Mitchell responded that her
initial false statements were made out of her fear of Ward. She also claimed that by
naming N.M, she thought the police would interview him, and that he would implicate
Ward.
A jury found Ward guilty of first-degree felony murder, second-degree
kidnapping, aggravated robbery, and burglary, all in violation of Colorado state law. He
Appellate Case: 21-1260 Document: 010110590399 Date Filed: 10/14/2021 Page: 3

-- 3 of 9 --

4
is currently serving a life sentence without the possibility of parole. Ward filed a direct
appeal with the Colorado Court of Appeals, and the Court affirmed. Ward then filed a
state postconviction appeal, and the Colorado Court of Appeals again affirmed his
conviction.
II
Ward has now filed a federal habeas petition pursuant to § 2254. He raises three
claims: (1) ineffective assistance of trial counsel after his counsel failed to investigate and
obtain evidence Ward speculates would be exculpatory, (2) denial of due process by the
destruction of the January 14 video interview, and (3) a Fourth Amendment violation
regarding the admission of evidence after an illegal traffic stop. The district court denied
Ward’s habeas petition, dismissed his case with prejudice, and declined to issue a COA.
Ward now seeks a COA from this court, requesting that his convictions be vacated
and the case remanded for a new trial. Ward has filed a brief alleging the trial court
improperly applied the attenuation and inevitable-discovery doctrines relating to the
evidence obtained from an illegal traffic stop. To obtain a COA, Ward must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The
last state court to evaluate the merits of Ward’s case was the Colorado Court of Appeals.
Thus, federal habeas relief is only available if we conclude that court’s 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 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).
Appellate Case: 21-1260 Document: 010110590399 Date Filed: 10/14/2021 Page: 4

-- 4 of 9 --

5
III
A. Ineffective Assistance of Counsel
Ward claims his counsel was ineffective when he failed to locate and present the
recording of Mitchell’s January 14 interview. The Colorado Court of Appeals considered
this issue under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687
(1984) (crafting a two-part test requiring a defendant show “that counsel’s performance
was deficient” and “that the deficient performance prejudiced the defense”). The Court
of Appeals rejected Ward’s claim because he failed to show how he was prejudiced when
the recording was not timely found. In other words, Ward could not explain how the
discovery of the interview recording would have changed the outcome of his trial.
Ward carries the burden to show he was prejudiced by his counsel’s failure to
locate and present the January 14 interview. But he does not allege the January 14
interview contained exonerating statements; instead, he argues the video would show
Mitchell making additional inconsistent statements. The Colorado Court of Appeals
considered this argument and concluded that Ward’s counsel had “thoroughly attacked”
Mitchell’s credibility at trial by cross-examining her regarding her prior false and
inconsistent statements. ROA, 228–29. Thus, the Court found that counsel’s failure to
uncover additional inconsistent statements was not prejudicial.
The district court correctly determined that Ward failed to establish that the
Colorado Court of Appeals’ decision was contrary to, or an unreasonable application of,
clearly established Supreme Court precedent because he failed to identify any materially
distinguishable Supreme Court decision that would have compelled a different result.
Appellate Case: 21-1260 Document: 010110590399 Date Filed: 10/14/2021 Page: 5

-- 5 of 9 --

6
B. Denial of Due Process
Ward’s due process claim also stems from the missing recording of the January
14, 2011, interview. Ward claims the destruction of the video denied his right to due
process because, he speculates, the video would have provided further impeachment
evidence against Mitchell.
The Colorado Court of Appeals considered this issue under the Supreme Court
precedent set forth in California v. Trombetta, 467 U.S. 479 (1984) and Arizona v.
Youngblood, 488 U.S. 51 (1988). The State violates a defendant’s due process rights if it
destroys or fails to produce evidence that had an apparent exculpatory value when
destroyed. Trombetta, 467 U.S. at 489. A defendant must establish that the destruction
of evidence was done in bad faith if, when it was destroyed, that evidence was only
potentially exculpatory. Youngblood, 488 U.S. at 58 (“[U]nless a criminal defendant can
show bad faith on the part of the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law.” (emphasis added)); see also
Trombetta, 467 U.S. at 486. Ward claims no one knows what the destroyed video would
have shown. Thus, the Colorado Court of Appeals concluded that the videotape could
not be apparently exculpatory and was instead merely potentially useful. The Court of
Appeals then determined that Ward was required under Youngblood to show that the
video’s destruction was caused by the police acting in bad faith. Ward failed to satisfy
that showing, suggesting only that the destruction was inadvertent or negligent. We
conclude the district court, upon review of the rulings of the Colorado Court of Appeals,
correctly found that no existing Supreme Court precedent compels a result different from
Appellate Case: 21-1260 Document: 010110590399 Date Filed: 10/14/2021 Page: 6

-- 6 of 9 --

7
that reached by the Colorado Court of Appeals, and that reasonable jurists would not
disagree with the district court’s conclusion.
C. Fourth Amendment violation
Finally, Ward claims the trial court failed to suppress all evidence obtained
through the illegal traffic stop. He argues to this court that the trial court erred when it
determined the attenuation and inevitable-discovery doctrines applied to Mitchell’s
January 3 statement and the evidence connecting Ward to the vehicle.
The traffic stop was addressed by the trial court on a motion to suppress, and it
concluded the illegality of the stop necessitated the suppression of evidence stemming
from the stop, including items seized from inside the vehicle. However, the trial court
did not suppress Mitchell’s statement made several hours after the stop, finding it was
attenuated, nor did it suppress the fact that Ward was discovered driving the white Dodge
Durango, finding the connection between Ward and the vehicle was inevitable.
On direct appeal, the Colorado Court of Appeals rejected Ward’s challenge to the
trial court’s denial of his motion to suppress. The Court of Appeals agreed with the trial
court that Mitchell’s statements were attenuated, meaning there was an intervening act of
free will between when the police first arrested Mitchell and her later statements, finding
she spoke to the police of her own volition. The Court also agreed with the trial court
that “Ward’s Durango inevitably would have been discovered,” as the “police learned
from information supplied by [the victim’s] brother that Mitchell and a white Durango
were related to the robbery and murder and learned from Mitchell herself that Ward
owned the Durango and resided at his grandmother’s house.” ROA, 145. Thus, the
Appellate Case: 21-1260 Document: 010110590399 Date Filed: 10/14/2021 Page: 7

-- 7 of 9 --

8
Court of Appeals affirmed the trial court’s appropriate conclusion “that Ward’s
ownership of the Durango and a photograph of it were properly admissible because they
would have been inevitably discovered through independent investigation.” Id.
On his postconviction appeal, the district court concluded that the trial court gave
Ward a full and fair opportunity to litigate this Fourth Amendment claim. While Ward
continues to challenge the trial court’s denial of his motion to suppress, the standard we
apply is whether the State granted him an opportunity for “full and fair litigation of [his]
Fourth Amendment claim . . . .” Stone v. Powell, 428 U.S. 465, 482 (1976). The district
court determined that “Mr. Ward’s real argument . . . is a substantive disagreement with
the resolution of his Fourth Amendment claim by the state courts. However,
disagreement with a state court’s resolution of a Fourth Amendment claim is not enough
to overcome the bar in Stone.” ROA, 314 (citing Matthews v. Workman, 577 F.3d 1175,
1194 (10th Cir. 2009)).
Ward fails to demonstrate he was not granted an opportunity to fully and fairly
litigate his Fourth Amendment claim, or that the trial court’s ruling on his Fourth
Amendment claim was contrary to established Supreme Court precedent.
Appellate Case: 21-1260 Document: 010110590399 Date Filed: 10/14/2021 Page: 8

-- 8 of 9 --

9
III
Ward’s motion for a certificate of appealability is DENIED, and this matter is
DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
Appellate Case: 21-1260 Document: 010110590399 Date Filed: 10/14/2021 Page: 9

-- 9 of 9 --