                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 26 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 JENNIFER REALI,

          Petitioner-Appellant,

 v.                                                       No. 03-1100
                                                            (D. Colo.)
 JAMES ABBOT, Warden, Colorado                       (D.Ct. No. 99-MK-253)
 Women’s Correctional Facility;
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, MURPHY, Circuit Judge, and BRORBY,
Senior Circuit Judge.


      Appellant Jennifer Reali appeals from the order and judgment of the district

court denying with prejudice her petition seeking a writ of habeas corpus under 28

U.S.C. § 2254. She alleges the government deprived her of effective assistance of

counsel and due process based on a breach of her attorney-client privilege, and



      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
used immunized testimony against her in violation of the Fifth Amendment. We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.



Background

       In 1990, Ms. Reali conspired with Brian Hood to murder his wife, Diane

Hood. As the pair had planned, Ms. Reali, adorned in men’s clothing and a ski

mask, shot and killed Mrs. Hood. People v. Reali, 895 P.2d 161, 164 (Colo. App.

1994). Within days of the shooting, Ms. Reali confessed to the murder. She told

the police she had been involved in a sexual relationship with Brian Hood. She

indicated Mr. Hood convinced her to aid him in killing his wife, and provided in

detail their murder plans and the events leading up to the shooting. Consequently,

she was charged with first degree murder, conspiracy, and a crime of violence.

Ms. Reali entered a plea of not guilty by reason of impaired mental condition. 1



       Thereafter, Ms. Reali agreed to cooperate in Mr. Hood’s prosecution, on

the assurance the district attorney would not seek the death penalty against her.

Pursuant to the agreement, Ms. Reali testified under a grant of use immunity at


       1
         After initially pleading not guilty by reason of impaired mental condition, Ms.
Reali amended her plea to not guilty by reason of insanity. However, after a sanity trial
jury found her sane, Ms. Reali returned her plea to not guilty by reason of impaired
mental condition.


                                            -2-
Mr. Hood’s grand jury proceedings, bond hearing, and trial. 2 Ms. Reali’s legal

counsel also provided the prosecution with select defense information to aid in

Mr. Hood’s prosecution. Reali, 895 P.2d at 164.



      Prior to his trial, Mr. Hood’s attorney attempted to obtain selected materials

from Ms. Reali’s defense file to use in cross-examining her at Mr. Hood’s trial.

Claiming attorney-client privilege, Ms. Reali’s attorney filed a motion to quash

the subpoena. After an in camera review of the files, the trial judge presiding

over Mr. Hood’s case determined Ms. Reali waived privilege and ordered Ms.

Reali’s counsel to turn over certain materials. As a result, the attorney

prosecuting Mr. Hood also gained access to these files. Reali, 895 P.2d at 164.

These same attorneys later prosecuted Ms. Reali. Id.



      Prior to her trial, Ms. Reali filed two separate motions to dismiss the

charges against her. In the first motion, Ms. Reali claimed the release of material

for Mr. Hood’s trial violated her Fifth, Sixth, and Fourteenth Amendment rights.

In the second motion, she claimed the district attorney’s office used immunized



      2
        A jury subsequently found Mr. Hood guilty of conspiracy to commit first degree
murder and two counts of solicitation to commit murder. People v. Hood, 878 P.2d 89,
91 (Colo. App. 1994).


                                          -3-
testimony in her sanity trial, and would do the same in her pending trial on the

merits, in violation of her Fifth Amendment rights.



      In considering the first motion, the state trial court ruled the turnover order

in Mr. Hood’s case was improper. However, the court determined this error did

not warrant dismissal of the charges against Ms. Reali. Instead, the court ordered

the prosecutors to refrain from using any erroneously obtained evidence.



      In addressing the second motion, the court noted Ms. Reali’s confession

statements were materially the same as her immunized testimony. However, the

court prohibited the prosecution from using any immunized testimony and

announced it would consider the admission of any questionable evidence outside

the presence of the jury. At trial, Ms. Reali did not object to any evidence the

prosecution presented on immunity grounds. Reali, 950 P.2d at 648.



      The jury found Ms. Reali guilty of first degree murder and conspiracy to

commit first degree murder. The Colorado Court of Appeals affirmed her

conviction, People v. Reali, 895 P.2d 161 (Colo. App. 1994), and the Colorado

Supreme Court subsequently denied her writ of certiorari. Id. Ms. Reali later

filed a collateral attack, which the Colorado courts also denied. Reali, 950 P.2d


                                         -4-
at 649.



      Having exhausted her state court remedies, Ms. Reali then filed an

application for habeas relief in federal district court. A magistrate judge

reviewed her petition and recommended the court deny relief. The United States

District Court for the District of Colorado adopted the magistrate judge’s

recommendation and dismissed the application with prejudice. The district court

granted Ms. Reali a certificate of appealability. Ms. Reali now appeals the

district court’s dismissal of her habeas application.



      On appeal, Ms. Reali makes the same three arguments she presented to the

district court. She first contends the state court order releasing attorney-client

privileged information violated her Sixth Amendment right to effective assistance

of counsel. Additionally, she contends this release of information violated her

right to due process of law under the Fifth and Fourteenth Amendments. Finally,

Ms. Reali claims the state violated her Fifth Amendment privilege against self-

incrimination when the same attorneys who prosecuted Mr. Hood prosecuted her,

used her immunized testimony to prepare for trial, and used the immunized

testimony at trial.




                                          -5-
Standard of Review

      We review the district court’s legal determinations in denying a § 2254

petition de novo. Garcia v. Shanks, 351 F.3d 468, 471 (10th Cir. 2003). Under

the Antiterrorism and Effective Death Penalty Act of 1996, if a state court

adjudicates a claim on its merits, a petitioner is entitled to federal habeas relief

only if she can establish the state court 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 light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(1), (2). The Act also requires federal courts to

presume state court factual findings are correct, and places the burden on the

petitioner to rebut the presumption with clear and convincing evidence. Section

2254(e)(1).



1. Attorney-Client Privilege Sixth Amendment Claim

      Ms. Reali first argues the state trial judge’s order requiring her attorney to

turn over defense files to her eventual prosecutors (“turnover order”) rendered her

counsel ineffective. Under such circumstances, she argues the court should

presume she suffered prejudice. In addition to her presumption argument, Ms.

Reali claims she suffered actual prejudice because these materials provided the


                                          -6-
prosecution with an unfair advantage in attacking her impaired mental condition

defense. From these materials, she asserts the prosecution learned (1) she

“swaggered” when she walked to disguise herself as a man when approaching

Mrs. Hood; (2) she provided her attorney with specific details of the crime she

earlier had claimed she did not remember; and (3) she had written letters to her

attorney which suggested she was alert and functioning intelligently.

Additionally, Ms. Reali asserts the turnover “chilled” her right to testify on her

own behalf. Ms. Reali’s arguments are unpersuasive.



      The Sixth Amendment guarantees an accused the right to assistance of

counsel for his or her defense. United States v. Morrison, 449 U.S. 361, 364

(1981). This right stems from the understanding fairness of the adversary

proceeding is the benchmark of the Sixth Amendment. Nix v. Whiteside, 475 U.S.

157, 175 (1986). To prevail on a Sixth Amendment violation claim, the

complaining party generally must demonstrate prejudice. Shillinger v. Haworth,

70 F.3d 1132, 1139-41 (10th Cir. 1995). However, in certain Sixth Amendment

contexts, courts will presume a party suffered prejudice. Id. at 1141. 3 In the


      3
       In Shillinger, this court detailed a number of situations where courts have
presumed prejudice. Examples of such circumstances include:

      prohibiting direct examination of the defendant by his counsel, see
      Ferguson v. Georgia, 365 U.S. 570 (1961); requiring those defendants who

                                           -7-
attorney-client privilege context, we presume prejudice only “when the state

becomes privy to confidential communications because of its purposeful intrusion

into the attorney-client relationship and lacks a legitimate justification for doing

so.” Id. at 1142. Ms. Reali fails to demonstrate she is entitled to a presumption

of prejudice, or that any prejudice actually resulted.



       In considering Ms. Reali’s Sixth Amendment claim, the Colorado Court of

Appeals determined she failed to demonstrate any specific prejudice resulted from

the turnover order. Reali, 895 P.2d at 169-70. Assuming the turnover order was

in error, the court ruled the trial court properly remedied the error by prohibiting

the prosecution from using information it did not have prior to the turnover order.

Id. at 169. It concluded, absent some showing of specific prejudice or a violation

of the trial court’s remedial order, Ms. Reali was not entitled to relief. 4 Id. at



       choose to testify to do so before any other defense witnesses, see Brooks v.
       Tennessee, 406 U.S. 605 (1972); refusing to allow defense counsel closing
       argument in a bench trial, see Herring v. New York, 422 U.S. 853 (1975);
       and prohibiting any consultation between a defendant and his attorney
       during an overnight recess separating the direct-examination and the cross-
       examination of the defendant, see Geders v. United States, 425 U.S. 80
       (1976).

Id., 70 F.3d at 1141.
       4
         When addressing another portion of Ms. Reali’s direct appeal, the Colorado
Court of Appeals specifically rejected examples Ms. Reali offered to demonstrate the
prosecution violated the trial court’s remedial order. See infra Part 3.

                                            -8-
170.



       This state appellate court decision is not contrary to, or an unreasonable

application of, federal law. Because Ms. Reali fails to show the prosecution

purposefully intruded upon her attorney-client relationship, she is not entitled to a

presumption of prejudice. See Shillinger, 70 F.3d at 1412. Nor has Ms. Reali

demonstrated she suffered any specific prejudice. She does not support her four

examples of prejudice with citations to record evidence demonstrating the

purported prejudice actually occurred. Accordingly, Ms. Reali is not entitled to

habeas relief on her Sixth Amendment claim.



2. General Due Process Violation Claim

       Next, Ms. Reali claims the judge presiding over Mr. Hood’s trial deprived

her of due process under the Fifth and Fourteenth Amendments by ordering her

counsel to turn over material in her defense file. In this portion of her brief, Ms.

Reali does not articulate a specific due process violation, or cite case law in

support of her claim. She simply argues the prosecution’s possession of the

materials “is inherently detrimental, unfairly advantages the prosecution, and

threatens to subvert the adversary system of justice.” We construe her argument




                                         -9-
as a general fundamental unfairness claim. 5



      A constitutional due process violation arises when a criminal trial lacks

fundamental fairness to the degree it is “shocking to the universal sense of

justice.” United States v. Russell, 411 U.S. 423, 432 (1973) (quotation marks and

citation omitted). See also Lisenba v. California, 314 U.S. 219, 236 (1941) (“As

applied to a criminal trial, denial of due process is the failure to observe that

fundamental fairness essential to the very concept of justice.”). After carefully

reviewing the record on appeal and relevant constitutional due process

requirements, we conclude the prosecution’s possession of information from Ms.

Reali’s defense file did not render her trial fundamentally unfair. Although the

fact the prosecution possessed this information is troubling, we cannot say it

warrants habeas relief in light of the trial court’s order prohibiting the prosecution

from using this information. We therefore affirm the district court’s order

denying habeas relief on this claim.




      5
         Although it is unclear whether Ms. Reali raised this precise claim before the
Colorado Court of Appeals, we exercise our prerogative under 28 U.S.C. § 2254(b)(2) to
deny her claim on the merits notwithstanding her failure to exhaust available state court
remedies.


                                           -10-
3. Fifth Amendment Improper Use of Immunized Testimony Claim

      Ms. Reali lastly asserts the state violated her Fifth Amendment privilege

against self-incrimination when the attorneys who elicited her immunized

testimony against Mr. Hood later prosecuted her case. Ms. Reali contends the

prosecution’s mere exposure to the immunized testimony is unlawful and warrants

overturning her convictions. She further alleges the prosecutors used the

videotapes and transcripts of her immunized testimony to prepare their case

against her, thereby gaining an unfair advantage. Specifically, Ms. Reali contends

the prosecution gained information allowing them to (1) remark during closing

arguments on how Ms. Reali altered the ski mask worn during the shooting as

evidence of her deliberation and intent; (2) obtain a witness to testify against her

at trial; (3) counter the importance of her having poor vision and being left-

handed whereas the shooter used her right hand to wield the murder weapon; and

(4) use a witness in the sanity trial who observed her immunized testimony at Mr.

Hood’s bond hearing and whose subsequent testimony was therefore tainted.



      Under the Fifth Amendment, no person “shall be compelled in any criminal

case to be a witness against himself.” U.S. Const. amend. V, Cl. 3. However, the

government may compel citizens to testify so long as it does not use the testimony

to inflict criminal penalties upon the witness. Kastigar v. United States, 406 U.S.


                                        -11-
441, 445-47 (1972). To ensure the government does not use such immunized

testimony, once a defendant establishes the government compelled her to testify

about a matter relevant to her own prosecution, the government then has the

burden of demonstrating “all of the evidence it proposes to use was derived from

legitimate independent sources.” United States v. Lacey, 86 F.3d 956, 972 (10th

Cir. 1996) (quotation marks and citations omitted).



      As previously discussed, the trial court denied Ms. Reali’s pretrial motion

to dismiss for improper use of immunized testimony. The trial court determined

the immunized testimony was substantially the same as the information contained

in Ms. Reali’s confession to the police, which was not immunized. The court

concluded the prosecution satisfied its burden of proving the evidence it proposed

to use arose from an independent, lawful source.



      On direct appeal, the Colorado Court of Appeals rejected Ms. Reali’s claim

the prosecutor’s mere exposure to her immunized testimony mandated the reversal

of her conviction. Reali, 895 P.2d at 167. Because Ms. Reali did not raise any

use immunity objections at trial, the court conducted a harmless error analysis as

to whether the prosecution used any immunized testimony during the trial. Id.

The court noted the prosecution independently and lawfully possessed: Ms.


                                        -12-
Reali’s detailed, non-immunized confession describing her part in the killing;

additional non-immunized information Ms. Reali’s counsel provided; and

materials relating to her impaired mental condition defense – turned over as

required by statute. Id. With respect to three of the four instances Ms. Reali

claims the prosecution used immunized testimony, the court found the prosecution

obtained its information from lawful independent sources. Id. at 168-69. As to

Ms. Reali’s fourth claim regarding tainted witness testimony, the court found:

            The record establishes that none of [Ms. Reali’s immunized]
      testimony influenced this witness.... [T]he only feature that the
      witness relied upon in identifying [Ms. Reali] as the purchaser of the
      mask was her physical appearance and, possibly, the sound of her
      voice....

            [T]he privilege against self-incrimination does not extend to
      non-testimonial actions.

Id. at 168. Thus, the court held no prejudicial error occurred.



      Under our limited standard of review, we conclude the state court’s

determination on the issue of whether the prosecution utilized immunized

testimony is not contrary to, or an unreasonable application of, clearly established

federal law. The Colorado Court of Appeals decision reasonably applies federal

law pertaining to use immunity as announced in Kastigar. Additionally, the state

court’s decision is not based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding. We affirm the

                                        -13-
district court’s decision Ms. Reali’s claim of improper use of immunized

testimony does not warrant habeas review.



      For the foregoing reasons, we AFFIRM the district court’s denial with

prejudice Ms. Reali’s petition seeking a writ of habeas corpus.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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