                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                   PUBLISH
                                                                        JUN 13 2000
                   UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                             Clerk
                                TENTH CIRCUIT



 EUGENE ROMERO,

       Petitioner-Appellant,
 v.
                                                  No. 98-1430 & 99-1035
 ROBERT FURLONG and KEN
 SALAZAR, Attorney General, State of
 Colorado,

       Respondents-Appellees.


                 Appeal from the United States District Court
                         for the District of Colorado
                           (D.C. No. 95-WM-1149)


Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender, with him on the briefs) for Petitioner-Appellant.

Clemmie Parker Engle, Senior Assistant Attorney General, Appellate Division
(Ken Salazar, Attorney General, with her on the brief) for Respondents-Appellees.


Before SEYMOUR, Chief Judge, MCKAY and EBEL, Circuit Judges.


EBEL, Circuit Judge.


      A Colorado state court jury convicted Petitioner-Appellant Eugene Romero

of second degree burglary and theft over $300. Pursuant to the state’s habitual
offender statute, Mr. Romero was sentenced to life in prison. After

unsuccessfully challenging his conviction and sentence on direct appeal and state

collateral review, Mr. Romero filed the present habeas corpus petition in federal

court attacking the constitutionality of his conviction and his classification as a

habitual offender. The federal district court denied his petition. We exercise

jurisdiction pursuant to 28 U.S.C. §§ 1291 & 2253 and AFFIRM.

                                  BACKGROUND

      In 1986, Appellant was convicted in Colorado state court of burglary and

theft following a jury trial. The jury also determined, in a bifurcated proceeding,

that Appellant was a “habitual criminal” under Colorado law because he had

previously been convicted of five prior felonies. Based on this finding, the trial

court imposed the sentence of life imprisonment.

      Ms. Claudia Jordan of the Colorado Public Defender’s Office initially

represented Appellant on all the charges (i.e., the burglary/theft charges and the

habitual criminal charges). Prior to trial, however, the prosecution announced

that it intended to call Appellant’s former attorney, Mr. Richard Davis, as a

witness during the habitual criminal phase of the trial. Mr. Davis had represented

Appellant in connection with a 1975 charge to which Appellant pled guilty. Mr.

Davis was also a public defender and worked in the same office as Ms. Jordan.

Ms. Jordan became concerned that the prosecution’s intention to call Mr. Davis as


                                         -2-
a witness against Appellant created a potential conflict of interest. After holding

a hearing on the issue, the trial court decided to appoint private counsel to

represent Appellant during the habitual criminal phase of the trial.

      Shortly before trial, the state offered Appellant a sixteen-year sentence in

exchange for a guilty plea. Appellant rejected the offer, which would have

allowed him to serve only eight years in prison, in order to “have his day in

Court.” Ms. Jordan informed Appellant that she thought he would likely be

convicted at trial and advised him to accept the offer. At that time, Ms. Jordan

expressed her opinion to the court that Appellant “is upset because I have given

him an honest assessment” of his situation. Appellant insisted on going to trial,

was convicted, and received a life sentence.

      On direct appeal to the Colorado Court of Appeals, Appellant claimed he

was denied effective assistance of counsel because Ms. Jordan had an actual

conflict of interest as a result of the government’s announced intention to call Ms.

Jordan’s colleague, Mr. Davis, in the habitual criminal proceedings.   1
                                                                           See People

v. Romero , 767 P.2d 782, 783 (Colo. App. 1988).       Appellant also claimed that

three of the five prior guilty pleas supporting the habitual criminal adjudication

were not knowing and voluntary and were therefore obtained in violation of his



      1
       Ultimately, the court determined that Mr. Davis’ testimony was not
necessary, and he was not called.

                                           -3-
constitutional rights.   See id. at 786. The court rejected both of these claims and

affirmed the convictions, the habitual criminal adjudication, and the sentence.

See id. at 787.

       In 1989, Appellant filed a motion for post-conviction relief in state district

court, asserting a variation on his earlier conflict of interest claim. Specifically,

this time Appellant argued that his belief that Ms. Jordan was under a conflict of

interest made it impossible to trust her, and that he was therefore denied effective

assistance of counsel based on the complete breakdown of their attorney-client

relationship. The state asserted that Appellant’s new ineffective assistance claim

was procedurally barred because on direct appeal he had raised an ineffective

assistance claim predicated on an asserted actual conflict of interest of counsel.

However, the state court determined there was no procedural bar and held an

evidentiary hearing on the issue. At the evidentiary hearing, the court heard

testimony from both Ms. Jordan and Appellant. Following the hearing, the court

ruled that Appellant had not been denied effective assistance of counsel.

Appellant appealed this ruling to the Colorado Court of Appeals. However, the

Court of Appeals refused to consider the merits of Appellant’s new ineffective

assistance of counsel claim because Appellant had raised an ineffective assistance

claim on the direct appeal and, therefore, this claim was procedurally barred.

       In 1995, Appellant filed a federal habeas petition pursuant to 28 U.S.C. §


                                            -4-
2254, attacking the constitutionality of his conviction and arguing that he was

denied effective assistance on three theories: imputed disqualification of Ms.

Jordan; actual conflict of interest on the part of Jordan; and complete breakdown

of the attorney/client relationship. Appellant also challenged his habitual

criminal classification, claiming that his prior convictions in 1973, 1975, and

1980 were obtained unconstitutionally. The magistrate judge found that

Appellant had been denied effective assistance of counsel due to the complete

breakdown of his relationship with his attorney and therefore recommended that

the district court grant Appellant’s habeas petition with respect to his conviction.

The magistrate further determined that Appellant’s 1973 conviction had been

obtained unconstitutionally, but recommended that the district court deny habeas

relief from the habitual criminal adjudication (assuming the district court did not

agree to grant habeas relief on the underlying conviction) because four of

Appellant’s previous convictions remained valid and, under Colorado law, only

three felony convictions were necessary for classification as a habitual criminal.

The district court declined to adopt the magistrate’s recommendation in

connection with the ineffective assistance of counsel claim but adopted the

remaining recommendations and denied habeas relief, both with regard to the

conviction and the sentence.




                                         -5-
      Appellant now appeals the judgment of the district court. Appellant asserts

that he was denied effective assistance of counsel based on the total breakdown in

communication between Ms. Jordan and himself, and he further argues that the

district court erred in not granting him a hearing on the matter. In addition,

Appellant contends that the district court erred in failing to grant habeas relief as

to his life sentence predicated on the habitual criminal adjudication because his

1973, 1975, and 1980 convictions were not knowing and voluntary.

                                   DISCUSSION

      Appellant filed his § 2254 petition in the federal district court in May of

1995. As a result, the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

Pub. L. No. 104-132, 110 Stat. 1214, does not apply to the merits of his claims. 2

See Lindh v. Murphy, 521 U.S. 320, 326, 117 S. Ct. 2059, 2063, 138 L. Ed.2d 481

(1997).

            As a federal court conducting a review in habeas of state court
      determinations, our role is secondary and limited. Although we


      2
        The Supreme Court has recently decided, however, that AEDPA’s
provisions regarding the issuance of a Certificate of Appealability (“COA”) as a
predicate to review in the Courts of Appeals do apply to cases in which the notice
of appeal was filed after AEDPA’s effective date, April 24, 1996. See Slack v.
McDaniel, 120 S. Ct. 1595, 1603 (2000). Consistent with Slack, we treat
Appellant’s notice of appeal in this case as an application for a COA. See id. We
further find that Appellant has made the requisite “substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2) (Supp. 1999), with
respect to his ineffective assistance and sentence enhancement claims. We hereby
grant the COA and exercise jurisdiction over these claims on appeal.

                                         -6-
      review legal conclusions de novo, a state court’s factual findings are
      entitled to a presumption of correctness. Mixed questions of law and
      fact are reviewed de novo, but the presumption of correctness will
      continue to apply to any findings of fact underlying mixed questions.

Castro v. Ward, 138 F.3d 810, 815-16 (10th Cir. 1998) (citations and internal

quotation marks omitted). The substance of our review is confined to whether

Appellant is “in custody in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2254(a) (1994).

I. Ineffective Assistance

      Before addressing Appellant’s ineffective assistance arguments, we note

that this case presents a number of complex issues concerning the applicability of

Colorado’s procedural bar to these claims. We need not and do not address these

issues, however, because the case may be more easily and succinctly affirmed on

the merits. See Cain v. Redman, 947 F.2d 817, 820 (6th Cir. 1991) (“In the

present case, it is in the interest of judicial economy for this court to hear this

cause in spite of the unresolved issues of exhaustion and procedural default.”); cf.

United States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994) (addressing a 28

U.S.C. § 2255 petition and declining to address the procedural bar issue because

the claim would fail on the merits in any event).

      The core of Appellant’s ineffective assistance claims is that he was denied

constitutionally effective counsel due to the complete and total breakdown in

communication between him and his trial counsel, Ms. Jordan. We have

                                         -7-
recognized that “[a] complete breakdown in communication between an attorney

and client may give rise to [a presumption of ineffectiveness].” United States v.

Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988). Appellant also complains

that the district court should have held a hearing to investigate the alleged

breakdown, and, alternatively, 3 that the state record itself demonstrates that such a

breakdown occurred. We find that neither argument has merit.

A. Hearing

      We disagree with Appellant’s claim that the district court should have

given him an evidentiary hearing to develop the factual basis for his ineffective

assistance claim. Under pre-AEDPA law, the federal courts must give a

presumption of correctness to findings of a state court on factual issues:

      [A] determination after a hearing on the merits of a factual issue,
      made by a State court of competent jurisdiction in a proceeding to
      which the applicant for the writ and the State or an officer or agent
      thereof were parties, evidenced by a written finding, written opinion,
      or other reliable and adequate written indicia, shall be presumed to
      be correct . . . .

28 U.S.C. § 2254(d).




      3
        We note that it is unclear from Appellant’s brief whether he is arguing
only that the district court erred in not holding a hearing, or also that we should
grant habeas relief based on the existing record. We assume that Appellant has
presented the latter argument as an alternative ground for reversal, and we address
it accordingly.

                                         -8-
      Appellant contends that three exceptions to this presumption apply in the

present case: (1) the state court did not make a factual finding regarding the

alleged breakdown in communication, see 28 U.S.C. § 2254(d)(1); (2) the state

court applied the incorrect legal standard, see Lafferty v. Cook, 949 F.2d 1546,

1552 n.4 (10th Cir. 1991) (“Only after concluding that a state court used the

proper standard does a habeas court turn to the issue of the presumption of

correctness.”); and (3) the state court’s conclusion was not fairly supported by the

record, see 28 U.S.C. § 2254(d)(8). We conclude that none of these exceptions

applies in the present case.

      1. State Court’s Factual Finding

      In seeking collateral review in the state courts, Appellant argued that his

relationship with trial counsel completely deteriorated after he learned that Mr.

Richard Davis, Appellant’s lawyer in a previous conviction and a public defender

in the same office where Ms. Jordan was employed, might be testifying against

Appellant at the habitual criminal phase of his trial. Appellant maintained that

this perceived impropriety led him to “fear that counsel was disloyal to him,” thus

rendering the representation constitutionally defective.

      The state court held a hearing on this collateral challenge and heard

testimony from both Appellant and Ms. Jordan. Ms. Jordan testified that her

relationship with Appellant deteriorated dramatically after Appellant learned that


                                         -9-
Mr. Davis might be called as a witness in his habitual criminal proceedings. Ms.

Jordan also testified that it became “impossible” to have a reasoned discussion

with Appellant, and that Appellant had become uncooperative. Appellant testified

that Mr. Davis’ role in the habitual criminal proceedings made him unable to trust

Ms. Jordan and led him to believe he was being “railroaded.” As a result,

Appellant testified, “I didn’t even want to participate in my own trial, to tell you

the truth.”

      The state district court denied Appellant’s petition for collateral relief.

With regard to the ineffective assistance claim, the court recognized the fact that

“the defendant ceased all substantive participation in the trial,” but found both

Appellant’s testimony and his claims of ineffective assistance “incredible.” The

court specifically rejected Appellant’s claim that the potential conflict of interest

destroyed his confidence in Ms. Jordan: “The court finds illogical the defendant’s

testimony that he lost confidence in trial counsel when she raised the conflict of

interest.” Moreover, the court found that Appellant’s dislike of Mr. Davis

“should have been manifest earlier if it was in fact the basis for the defendant’s

personal conflict.” Thus, the court concluded that Appellant’s behavior was not

the result of a complete breakdown in communication between Appellant and Ms.

Jordan.




                                         - 10 -
      The state court explicitly rejected Appellant’s testimony, and it impliedly

rejected Ms. Jordan’s testimony that a breakdown had occurred. The state district

court had been briefed on the Soto Hernandez claim, and it rejected this and any

other arguments of ineffective assistance. It is therefore apparent that the state

court made a factual finding to that effect because it denied Appellant relief.

Thus, § 2254(d)(1) does not negate our presumption of correctness.

      2. Legal Standard Used by State Court

      The state court had been advised of the Soto Hernandez issue and was

clearly aware from its analysis that a total breakdown in communication can

support an ineffective assistance claim. We therefore conclude that the court’s

factual findings were not based on “an erroneous view of the governing law,”

Lafferty, 949 F.2d at 1552 n.4.

      3. Fair Support in the Record for the State Court’s Findings

      Our review of the state court record reveals ample evidence that there was

not here a total lack of communication. With respect to the plea negotiations, it is

undisputed that Ms. Jordan communicated the state’s offer to him and encouraged

him to accept it. And there is ample support for the state court’s conclusion that

Appellant’s refusal to cooperate was simply a trial strategy born out of

desperation.




                                        - 11 -
      Because Appellant has not shown that any exception to the presumption

established in § 2254(d) applies, we are bound by the state court’s determination

that no complete breakdown of communication occurred. Accordingly, it was not

error for the district court to deny an evidentiary hearing. 4 See Scrivner v. Tansy,

68 F.3d 1234, 1242 (10th Cir. 1995) (“Even if disputed issues of fact are raised, a

habeas petitioner is entitled to a hearing in federal court only if he did not receive

a full and fair evidentiary hearing in a state court . . . which resulted in reliable

findings.”) (citations and internal quotation marks omitted).

B. Merits

      In deciding whether a complete breakdown in communication rendered

Appellant’s representation constitutionally ineffective, we consider four factors.

The first three factors we take from the Ninth Circuit case of Bland v. California

Dep’t of Corrections, 20 F.3d 1469, 1475 (9th Cir. 1994): (1) whether Appellant

made a timely motion requesting new counsel; (2) whether the trial court

adequately inquired into the matter; (3) “whether the conflict between the


      4
         Further, Appellant does not indicate what additional evidence he would
present that was not made part of the record in the state court. To the extent he
might wish to adduce substantial new evidence, we note that he would be
prohibited from doing so under current case law. See Demarest v. Price, 130 F.3d
922, 932 (10th Cir. 1997) (“[A]lthough a habeas petitioner will be allowed to
present bits of evidence to a federal court that were not presented to the state
court that first considered his claim, evidence that places the claims in a
significantly different legal posture must first be presented to the state courts.”)
(citations and internal quotation marks omitted).

                                         - 12 -
defendant and his attorney was so great that it resulted in a total lack of

communication preventing an adequate defense.” Id. (citation and internal

quotation marks omitted). In addition, we think a fourth factor is certainly

implied and we now make it explicit: (4) whether the defendant substantially and

unjustifiably contributed to the breakdown in communication. See Brown v.

Craven, 424 F.2d 1166, 1170 (9th Cir. 1970). 5

      With regard to the first factor, when the trial court addressed the potential

conflict presented by Mr. Davis’ service as a potential witness in the habitual

criminal phase, Appellant was asked whether, in light of the court’s decision to

appoint separate counsel for that part of the proceedings, he still wished Ms.

Jordan to represent him at trial. Appellant replied: “Yeah, I guess, yeah. No, I

don’t then.” Although this ambiguous statement might be sufficient to inform the

court of Appellant’s belief that he still thought Ms. Jordan was conflicted, we

question whether it gave notice to the trial court that the Appellant was asserting

that there was a complete breakdown in communication.


      5
        In Soto Hernandez we relied on Brown in support of the conclusion that a
complete breakdown in communication creates a presumption of ineffective
assistance. See Soto Hernandez, 849 F.2d at 1328. We note that Brown, like our
decision today, assumes that the defendant’s contribution to the breakdown in
communication cannot be unjustifiable under the circumstances. The Brown court
ordered “a new trial attended with all reasonable assurance that [the defendant] be
represented by competent counsel, . . . in whom he may, if he does not
demonstrate obstinance, recalcitrance, or unreasonable contumacy, repose his
confidence.” Brown, 424 F.2d at 1170 (emphasis added).

                                         - 13 -
         As to the second factor, we similarly doubt whether the trial court failed to

make an adequate inquiry under the circumstances. After Appellant made the

above statement, the court inquired of Ms. Jordan whether, in her opinion, the

conflict would be resolved through the appointment of separate counsel for the

habitual offender proceedings. She indicated that it would. Following that

exchange, the Appellant failed to renew his objection or to suggest in any way

that he still had a claim of ineffective counsel based on a total breakdown of

communication. The court, therefore, quite reasonably could have assumed that it

had adequately addressed Appellant’s concern as a matter of law, even if

Appellant did not agree with the ruling. In light of Appellant’s equivocation, we

are reluctant to conclude that the district court should have deduced some larger

problem and expanded the scope of his inquiry beyond the conflict of interest

issue.

         With respect to the third factor, we have already explained at length that 28

U.S.C. § 2254(d) requires we defer to the state court’s factual determination that

no such breakdown occurred. As a practical matter, Appellant’s failure on this

factor is fatal to his argument, since satisfaction of this factor is a logical

predicate to his ineffective assistance claim.

         Finally, we note there is significant evidence in the record that whatever

difficulty in communication developed between Appellant and Ms. Jordan appears


                                          - 14 -
largely to have been the result of Appellant’s decision not to participate in the

proceedings. As Appellant candidly admitted in the state court hearing, “I didn’t

even want to participate in my own trial, to tell you the truth.” Appellant also

refused at trial to change from his prison clothes into available street clothes and

informed Ms. Jordan that he would rather remain in the holding cell than

participate in his trial. A breakdown in communication warranting relief under

the Sixth Amendment cannot be the result of a defendant’s unjustifiable reaction

to the circumstances of his situation. In the present case, there is significant

evidence in the record that Appellant’s difficulties were the product of his

negative attitude toward the proceedings and not a justifiable reaction to some

outside influence or event. In fact, the district court concluded that Appellant

was not sincere in this claim, but was rather desperately attempting to conjure up

some error in the proceeding. A defendant cannot simply manufacture a

breakdown in communication and thereby give rise to a constitutional violation.

      In sum, we conclude that Appellant did not suffer a complete and total

breakdown in communication with Ms. Jordan. It is apparent that Appellant made

an error in judgment by refusing the state’s plea offer, but such mistakes alone do

not amount to constitutional error. Accordingly, we affirm the district court’s

denial of Appellant’s ineffective assistance claim.




                                         - 15 -
II. Sentence Enhancement

      Appellant claims that he was improperly sentenced to life in prison under

Colorado’s habitual criminal statute. Appellant claims that three of his five prior

felony convictions were unconstitutionally obtained and therefore cannot serve as

predicate offenses for his classification as a habitual offender. We disagree.

       At the time of Appellant’s sentencing, C.R.S. § 16-13-101(2) (1986)

mandated that an individual convicted of a felony after three prior felony

convictions receive a life sentence. Upon Appellant’s conviction in the instant

case, the state introduced evidence that Appellant had previously been convicted

of five separate felonies: 1973 (second degree burglary), 1975 (second degree

burglary), 1975 (first degree criminal trespass), 1980 (criminal attempt to commit

escape), and 1985 (criminal attempt to commit second degree burglary).

Appellant unsuccessfully challenged the validity of three of these convictions on

direct appeal, state collateral review, and in his federal § 2254 petition.

Appellant argues to this court that his guilty pleas were constitutionally defective

in the 1973, 1975 (burglary), and 1980 cases. 6 Because Colorado law requires

only three prior felony convictions for this sentencing enhancement, Appellant




      6
         Appellant does not challenge the constitutionality of his 1975 conviction
for first degree armed trespass or his 1985 conviction for criminal attempt to
commit second degree burglary.

                                        - 16 -
must establish that all three of the challenged convictions were in fact

unconstitutional. This he cannot do.

      In 1976, Appellant received a furlough from prison, but failed to return and

was at large for four years. Appellant was apprehended and in 1980 pled guilty to

attempted escape. Appellant contends that this plea was involuntary and

unintelligent, and therefore unconstitutional because the plea colloquy

misinformed him as to a material element of the offense. According to Appellant,

the prosecutor misstated the requisite intent for the offense.

      Upon invitation of the presiding judge, the prosecutor recited the elements

of the offense. With respect to intent, the prosecutor stated that the Appellant

must have “intentionally and feloniously escape[d] from said confinement.”

Appellant contends that, at that time, Colorado required as an element of the

offense that one have acted with the “intent to avoid the due course of justice.” 7

      It is well-settled that a guilty plea is not “voluntary in the sense that it

constituted an intelligent admission that [a defendant] committed the offense

unless the defendant received ‘real notice of the true nature of the charge against

him.’” Henderson v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 2257, 49 L.



      7
        The parties dispute whether Colorado law did in fact require this specific
articulation of intent at the time Appellant pled guilty to the offense. We need
not address this issue, however, since Appellant’s claim fails even assuming that
he correctly states the law.

                                        - 17 -
Ed.2d 108 (1976) (quoting Smith v. O’Grady, 312 U.S. 329, 334, 61 S. Ct. 572,

574, 85 L. Ed. 859 (1941)). Appellant would have us believe that acting with the

intent to escape and acting with the “intent to avoid the due course of justice” are

distinct and separate concepts. By definition, however, escape is avoiding the due

course of justice. It is a mystery to us how Appellant could agree with the court

during his plea colloquy that he had intended to escape from prison, but now

maintain that he was not aware that he was likewise admitting to an intent to

evade the due course of justice. Thus, we conclude that the prosecutor

adequately stated the level of intent required for the offense. A plea colloquy is

not rendered constitutionally infirm by the mere failure to recite a legal phase

verbatim, and it is beyond question that Appellant was fully informed of the

nature of the charge against him. Accordingly, we reject Appellant’s claim that

his plea was involuntary and unintelligent.

      In light of this conclusion, it is not necessary to address Appellant’s

challenges to his 1973 and 1975 convictions. Even assuming that these

convictions were unconstitutional (a question we do not decide), Appellant’s 1980

conviction suffices as the third prior felony conviction supporting his

classification as a habitual criminal. We therefore affirm his life sentence under

the Colorado statute.




                                        - 18 -
                                  CONCLUSION

      Appellant has failed to show that the district court erred in refusing to grant

an evidentiary hearing on his ineffective assistance claim, and he has likewise

failed to establish that the district court erred in dismissing this claim on the

merits. We also conclude that Appellant’s 1980 guilty plea was voluntary and

intelligent, and his classification as a habitual criminal was therefore proper.

Accordingly, the judgment of the district court is AFFIRMED.




                                         - 19 -
