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Garrett v. Werholtz

United States District Court, D. Colorado

April 28, 2014

ROGER WERHOLTZ, Exec Director Colorado Dept of Corrections, FRANCES FALK, Warden, Limon Correctional Facility, and JOHN SUTHERS, Attorney General, State of Colorado, Respondents.


MARCIA S. KRIEGER, District Judge.

This matter is before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody (ECF No. 1) ("the Application"). Applicant Michael Garrett is a prisoner in the custody of the Colorado Department of Corrections. Through counsel, Mr. Garrett challenges the validity of his conviction in Denver District Court case number 2002CR2638. Respondents have filed an Answer to § 2254 Application (ECF No. 21) ("the Answer") and Mr. Garrett has filed a Reply Brief in Support of Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody (ECF No. 28) ("the Traverse"). After reviewing the record, including the Application, the Answer, the Traverse, and the state court record, the Court FINDS and CONCLUDES that the Application should be denied and the case dismissed with prejudice.


Mr. Garrett shot and killed his ex-wife. Mr. Garrett testified at trial that he acted in self-defense because his ex-wife pointed a gun at him and he believed she was going to shoot him. A jury rejected his self-defense theory and convicted him of first degree murder and violation of a restraining order. He was sentenced to life in prison without the possibility of parole. The Colorado Court of Appeals affirmed the judgment of conviction. See People v. Garrett, No. 04CA0726 (Colo.App. Mar. 29, 2007) (unpublished) (ECF No. 1-3). On September 10, 2007, the Colorado Supreme Court denied Mr. Garrett's petition for writ of certiorari on direct appeal. ( See ECF No. 1-5.)

In March 2008 Mr. Garrett filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. On November 6, 2008, the trial court denied the Rule 35(c) motion. ( See ECF No. 1-7.) The trial court's order was affirmed on appeal. See People v. Garrett, No. 08CA2456 (Colo.App. Feb. 10, 2011) (unpublished) (ECF No. 1-9). On September 10, 2012, the Colorado Supreme Court denied Mr. Garrett's petition for writ of certiorari in the state court postconviction proceedings. ( See ECF No. 1-10.)

Mr. Garrett asserts eight claims for relief in the Application, a number of which include subparts. The Court previously entered an Order to Dismiss in Part (ECF No. 17) dismissing claims 6(c), 6(d), and 6(e) as unexhausted and procedurally barred. The remaining claims are timely and exhausted.


Title 28 U.S.C. § 2254(d) 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:

(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). Mr. Garrett 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, 131 S.Ct. 770, 784-85 (2011). In particular, "determining 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 784. Thus, "[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 784-85. Even "[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 784. In other words, the Court "owe[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 "must 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 of the evidence presented." Id. at 1178. "[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 Mr. Garrett seeks to apply a rule of law that was clearly established by the Supreme Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law "refers 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, 529 U.S. at 404-05.

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 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). "The 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.

House, 527 F.3d at 1018.

The Court's inquiry pursuant to the "unreasonable application" clause is an objective inquiry. See Williams, 529 U.S. at 409-10. "[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] 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. Furthermore,

[E]valuating 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 to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.

Richter, 131 S.Ct. at 786 (internal quotation marks omitted). In conducting this analysis, the Court "must 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. In addition, "review 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, 131 S.Ct. 1388, 1398 (2011).

Under this standard, "only the most serious misapplications of Supreme Court precedent will be a basis for relief under § 2254." Maynard, 468 F.3d at 671; see also Richter, 131 S.Ct. at 786 (stating that "even 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.

Richter, 131 S.Ct. 786-87.

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 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. Pursuant to § 2254(e)(1), the Court must presume that the state court's factual determinations are correct and Mr. Garrett bears the burden of rebutting the presumption by clear and convincing evidence. "The 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)).

Finally, the Court's analysis is not complete "[e]ven if the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law." Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). "Unless the error is a structural defect in the trial that defies harmless-error analysis, [the Court] must apply the harmless error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993)...." Id .; see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must conduct harmless error analysis under Brecht anytime it finds constitutional error in a state court proceeding regardless of whether the state court found error or conducted harmless error review). Under Brecht, a constitutional error does not warrant habeas relief unless the Court concludes it "had substantial and injurious effect" on the jury's verdict. Brecht, 507 U.S. at 637. "A substantial and injurious effect' exists when the court finds itself in grave doubt' about the effect of the error on the jury's verdict." Bland, 459 F.3d at 1009 (citing O'Neal v. McAninch, 513 U.S. 432, 435 (1995)). "Grave doubt" exists when "the matter is so evenly balanced that [the Court is] in virtual equipoise as to the harmlessness of the error." O'Neal, 513 U.S. at 435. The Court make this harmless error determination based upon a review of the entire state court record. See Herrera v. Lemaster, 225 F.3d 1176, 1179 (10th Cir. 2000).

If a claim was not adjudicated on the merits in state court, and if the claim also is not procedurally barred, the Court must review the claim de novo and the deferential standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).


A. Claim 1(a)

Mr. Garrett alleges in claim 1(a) that admission of testimonial hearsay violated his Sixth Amendment right to confront witnesses. According to Mr. Garrett, the testimony and statements that violated his rights with respect to claim 1(a) are the following:

• testimony by Officer Bueno that during an April 4, 2001 meeting with the victim, the victim said that Mr. Garrett telephoned and said "I'm going to get you. I've got something for you, bitch."
• testimony by Officer Gimeno that on June 5, 2011, the victim told him she was trying to get a divorce from Mr. Garrett; she had a restraining order; she believed Mr. Garrett was violent; Mr. Garrett had choked her before; and Mr. Garrett threatened to choke her and said to her "I'm going to f- you up bitch, I'm going to choke you.
• testimony by Officer Salazar that on May 21, 2001, when the victim walked into the police station to make a report regarding violation of a restraining order, Mr. Garrett had called her and said "something to the effect of, you're looking for me, bitch, or you stupid bitch, and then said I've got something for you, bitch." The victim also reported that she had tried to contact Mr. Garrett at her sister's house the day before because he had failed to pick up the kids for a custody visit.
• testimony by Denise Thach, an employee of an agency that works with battered women, regarding written statements made by the victim in the victim's sworn complaint used to obtain a restraining order that Mr. Garrett had broken into her home on March 3, 2001, and was waiting for the victim with a knife and that there had been past acts of violence.
• testimony by Janise Bean that Mr. Garrett came to watch his daughter's swimming lesson on July 21, 2001; that the victim said Mr. Garrett was not supposed to be there and that there was a restraining order.
• testimony by Officer Chinn that on August 1, 2001, the victim came into the police station and complained about the swimming pool incident on July 21, 2001.
• testimony by the victim's mother that in the Spring of 2001 the victim came to the mother's house and said Mr. Garrett jumped her when she got home and the victim asked her dad to kill Mr. Garrett before he killed her.
• testimony by Kimberly Tatro, the victim's co-worker, that the victim had said she had a restraining order against Mr. Garrett; that Mr. Garrett was calling and leaving voice messages and threatening her; that Mr. Garrett had been found in the garage of their home during his daughter's birthday party; and that the victim had bought a gun after the birthday party incident.
• testimony by the victim's nephew that the victim had said Mr. Garrett choked her, that it was the last straw, and that Mr. Garrett had been watching her and could get her anytime.

Mr. Garrett also challenges admission of the victim's verified complaint used to obtain a restraining order.

The right of an accused to confront the witnesses against him is guaranteed by the Sixth Amendment to the United States Constitution and applies in both federal and state prosecutions. See Stevens v. Ortiz, 465 F.3d 1229, 1235 (10th Cir. 2006). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845 (1990).

In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the United States Supreme Court held that the Confrontation Clause bars admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. However, the Supreme Court in Crawford recognized that exceptions to this rule existed, including an exception based on the doctrine of forfeiture by wrongdoing, which "extinguishes confrontation claims on essentially equitable grounds." Id. at 62 (citing Reynolds v. United States, 98 U.S. 145, 158-59 (1879)). In Reynolds, the Supreme Court explained the doctrine of forfeiture by wrongdoing as follows:

The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.

Reynolds, 98 U.S. at 158.

Two years after Crawford, the Supreme Court again noted that the doctrine of forfeiture by wrongdoing provides an exception to the rule of confrontation:

[W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. We reiterate what we said in Crawford: that "the rule of forfeiture by wrongdoing... extinguishes confrontation claims on essentially equitable grounds." That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation."

Davis v. Washington, 547 U.S. 813, 833 (2006) (citation omitted). The Supreme Court in Davis expressly took "no position on the standards necessary to demonstrate such forfeiture" of the ...

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