from the United States District Court for the District of
Colorado (D.C. No. 1:15-CV-01745-RPM)
K. Michaels, Assistant Attorney General (Phil Weiser,
Attorney General, with her on the briefs), Criminal Appeals
Section, Office of the Attorney General for the State of
Colorado, Denver, Colorado, appearing for Appellants.
Kathleen A. Lord, Lord Law Firm, LLC, Denver, Colorado,
appearing for Appellee.
BRISCOE, HOLMES, and McHUGH, Circuit Judges.
BRISCOE, CIRCUIT JUDGE.
Christopher Hobdy, a Colorado state prisoner serving a
lengthy sentence for first degree assault and aggravated
robbery, filed an application for federal habeas relief
pursuant to 28 U.S.C. § 2254. The district court granted
Hobdy's application and ordered the State of Colorado to
retry him within ninety days. Respondents Rick Raemisch, the
Executive Director of the Colorado Department of Corrections,
and Phil Weiser, the Attorney General for the State of
Colorado, now appeal from the district court's decision.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
reverse the decision of the district court and remand with
directions to enter judgment in favor of respondents.
The underlying facts of Hobdy's case
Colorado Court of Appeals (CCA), in addressing Hobdy's
direct appeal, summarized the underlying facts of Hobdy's
The criminal charges against [Hobdy] arose from an assault on
the victim[, Jerry Williams, ] outside a convenience store
[on May 15, 1997]. The victim was a police officer [with the
City of Aurora, Colorado, ] who had a terminal illness and
was living in a hospice at the time of the assault.
The victim had arrived at the store late at night [shortly
after 1 a.m.] to purchase a few items. After leaving the
store, he used the outside payphone. While the victim was on
the phone, [Hobdy], who had made a purchase at the store
shortly after the victim had left the store, approached the
victim and asked him for a quarter. The victim said he did
not have a quarter, and [Hobdy] then went back into the
After making his phone call, the victim began walking back to
the hospice. He heard footsteps behind him and saw that
[Hobdy] was following him. [Hobdy] uttered a racial slur
[i.e., "nigger"] and told the victim, "I'm
going to get you." He then hit the victim with a shovel.
The victim fell to the ground, and his possessions fell out
of his pocket. [Hobdy] then picked up the items and ran away.
The victim then went back into the store and told the clerk
to call 911. Believing that his assailant would be depicted
on the store's video surveillance tape, the victim asked
the clerk to retrieve the tape. He provided police a
description of his assailant.
The following day, the police showed [the victim] three still
photographs they had made of [Hobdy] from the surveillance
video tape. They did not know his identity at that time. From
the photos, the victim identified [Hobdy] as his assailant.
State v. Hobdy, No. 98CA1361 at 1-2 (Colo.App. Mar.
30, 2000) (Hobdy I), available at Aplt. App., Vol. 2
victim, Williams, gave the police an audiotaped interview the
day after the attack.
state trial proceedings
22, 1997, Hobdy was charged by information in Arapahoe County
District Court with two counts of attempted first degree
murder (one count alleged "after deliberation" and
the second count alleged "felony murder"), one
count of first degree assault, and one count of aggravated
robbery. Aplt. App., Vol. 3 at 24.
same day the information was filed, the prosecution filed a
motion seeking permission to depose Williams who, the motion
noted, was "residing in a hospice and . . . dying of
cancer." Id. at 25. The state trial court
granted the motion and the deposition of Williams was taken
in May and June of 1997. Williams died in August of 1997.
case was tried to a jury on March 9-20, 1998. The
prosecution's evidence included, among other things, the
audiotaped interview that Williams gave to police the day
after the attack and the transcript of Williams'
deposition, which was read to the jury.
"defense [at trial] was misidentification."
Id., Vol. 2 at 168. Hobdy admitted being in the
convenience store that evening, but he denied attacking
Williams. According to Hobdy, he had been drinking at a
nearby bar, left briefly to go to the convenience store, and
then returned to the bar to meet his friends. "The
thrust of [Hobdy's] defense was that due to the
substantial pain medication the victim was taking at the
time, any identification or testimony on his part was not
credible." Id., Vol. 1 at 195. "The victim
was established to be regularly taking Morphine, Haldol,
Ativan, Robaxin, Dilantin, Benadryl, Decadron, and
rebut this defense, the [State] called two medical
doctors," one of whom "treated the victim at the
emergency room after the attack, and the other [of whom] was
the victim's regular oncologist." Id.
"Together, they opined that the victim's mental
faculties were not affected by the medications the victim was
taking at the time of the attack such that they would impair
his ability to make a positive identification."
Id. at 196. Hobdy "did not offer his own
medical expert to refute the testimony of the two doctors
called by the [State]." Id. at 169. But
Hobdy's "[t]rial counsel did cross examine the
witnesses, based on medical records and drug information, and
also elicited specific examples of the victim suffering from
hallucinations, confusion, drowsiness, and other impairments
related to his medications." Id.
jury deliberations began later in the day on March 18, 1998,
and continued through the next two days, March 19-20, 1998.
During those deliberations, the jury sent several notes to
the state trial court. To begin with, at approximately 11:35
a.m. on the first full day of deliberations-March 19,
1998-the jury sent a note to the trial court asking for
permission to listen to the 911 tape recording and to watch
the 7-11 surveillance video. The state trial court granted
both of those requests.
that same day, at approximately 3:37 p.m., the jury sent a
note to the state trial court asking two questions. The first
question stated: "May we look at Jerry William's
[sic] deposition testimony?" Id., Vol. 4 at
147, 152-53. The second question said:
We are struggling with coming to agreement with the
creditability [sic] of Jerry Williams' testimony. We have
been debating this issue for most of the day. Since this
testimony is key to coming to a concensus [sic] we believe
that coming to a verdict will be difficult. Convictions
remain firm on both sides. Due to evidence provided and its
interpretation by individual jurors we are concerned that a
verdict may not be attainable.
Id. at 149, 153.
district court responded to the jury's first question
with a written answer stating, "you may request in
writing that the entire Jerry Williams' depositions be
read to you in Court as was done during the trial."
Id. at 160. After receiving that written answer, the
jury contacted the court "and indicated they [we]re
waiting for an answer on the second question."
Id. at 160-61. The state trial court then responded
to the jury's second question by sending them back a
written note stating: "The court must ask you whether
you are making any progress towards a unanimous verdict or
are deadlocked?" Id. at 149, 163. The jury
responded with one word: "Deadlocked." Id.
at 149. After receiving this response, the state trial court
read the modified Allen instruction to the jury and
sent them back to deliberate. Id. at 164-65.
that afternoon, the jury sent a note to the trial court
outlining its "[p]lan for" the next day.
Id. at 151. The note stated that the plan was to
"1) hear taped interview of Jerry Williams" and
"2) hear all three depositions of Jerry Williams read if
possible by impartial parties." Id. The state
trial court responded that it "w[ould] attempt to
accommodate [their] request" the following day, March
20, 1998. Id.
outset of the following day, Friday, March 20, 1998, the
state trial court allowed the jury to first "hear the
taped interview of Jerry Williams." Id. at 183.
The state trial court then arranged for several people to
read Williams' deposition transcripts. After that reading
was complete, the jury was sent back to deliberate.
point that afternoon, the jury sent out a note asking,
"Can we have the large sign that was in the closing
arguments re: Reasonable doubt? Elements of each crime?"
Id. at 203. The state trial court responded:
"The information requested is contained in the
instructions of the court - if you need additional copies of
some or all the instructions please specify by number."
jury then sent out another note stating, "We want the
testimony of the person that was on the stand when they
interjected the tape of Chris Hobdy & also WANT,
NeeD [sic] to hear the tape of defendant. Thank
you." Id. at 204 (emphasis in original). The
state trial court responded to this note by stating:
The court reporter who reported Detective Days [sic]
testimony while a portion of Chris Hodby [sic] tape was
played is not here and that testimony is not available until
Monday. The only request that the court can grant today is to
play that portion of Chris Hobdy's tape that was played
for you during the trial.
Id. at 205. The jury responded: "We would like
to listen to the taped interview today." Id.
The state trial court granted that request.
to the record, the jury also, at some unknown point in the
deliberations, wrote a note to the court that said:
Deliberations have broken down. We find ourselves attacking
each other not allowing the [sic] us to move toward a
verdict. We do not know where to go from here. We have
examined all the evidence given to us and still are
deadlocked. We don't know what else to look at.
Id., Vol. 2 at 8. It is unclear if this
"attacking each other" note was in fact delivered
by the jury to the state trial court and, if so, when that
approximately 4:50 p.m. on March 20, 1998, the state trial
court spoke to the jurors about recessing for the weekend and
reconvening the following Monday. Id., Vol. 4 at
217-18. The jury "indicated they'd like some more
time," so the state trial court granted that request.
Id. at 218. Later that day-it is unclear from the
record precisely what time-the jury returned with a verdict.
The jury found Hobdy not guilty of the two attempted murder
charges. But it convicted him of first degree assault and
aggravated robbery. The jury also found that Hobdy "did
use or possess and threaten the use of a deadly weapon during
the commission of the crime or during the immediate flight
therefrom." Id. at 220.
state trial court sentenced Hobdy to consecutive terms of
imprisonment of twenty-eight years' and thirty years'
imprisonment for the two counts of conviction, resulting in
an aggregate sentence of fifty-eight years.
filed a direct appeal, asserting five general propositions of
error. The CCA affirmed Hobdy's convictions in an
unpublished opinion issued on March 30, 2000. Hobdy
I, No. 98CA1361 at 15. Hobdy filed a petition for writ
of certiorari with the Colorado Supreme Court, but that was
denied on September 5, 2000. There is no indication in the
record that Hobdy filed a petition for writ of certiorari
with the United States Supreme Court.
Rule 35(b) motion for ...