United States District Court, D. Colorado
ORDER ON APPLICATION FOR A WRIT OF HABEAS CORPUS
WILLIAM J. MARTÍNEZ, District Judge.
Applicant, James Bryant, has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his criminal conviction in the District Court of Mesa County, Colorado. Respondents have filed an Answer (ECF No. 18), and Applicant was allowed an opportunity to file a Reply. Having considered the same, along with the state court record, the Court will deny the Application.
On August 25, 2005, Applicant was convicted by a jury of assault on a peace officer, and distribution of a schedule II controlled substance, in El Paso County District Court Case No. 03CR1282. (ECF No. 1, at 1-2). Upon his adjudication as a habitual criminal, Applicant was sentenced to an aggregate prison term of 48 years. ( Id. at 2; ECF No. 9-1, at 6).
The Colorado Court of Appeals affirmed Applicant's convictions on direct appeal in People v. Bryant ( Bryant I ), No. 05CA2084 (Colo.App. March 5, 2009) (unpublished decision). (ECF No. 9-10). The state appellate court summarized the relevant facts as follows:
On March 21, 2003, Colorado Springs Police Officer Shive was on patrol with new Deputy District Attorney Denise Minish as a ride-along. While driving through an apartment complex parking lot, Officer Shive noticed a gold-colored vehicle, not in a legal parking spot, with three males inside, two in the front and one in the back. Officer Shive noticed that the engine was running, and that all the men were looking down and toward the center console of the vehicle. As Officer Shive drove past, one of the individuals noticed his marked police cruiser. All three individuals immediately sat up in their seats and followed Officer Shive's cruiser with their eyes.
Officer Shive made a U-turn in the parking lot, pulled up behind the vehicle, and called police dispatch to report his location and the number of the vehicle's temporary license tag. Dispatch reported that no information existed regarding that particular temporary license. Officer Shive then stepped out of his cruiser. At this point, the two passengers stepped out of the vehicle and began walking hurriedly toward another vehicle. The driver, who was later identified as [Applicant], remained in the vehicle. Officer Shive called out to the two passengers, ordering them to come back. They responded that they were not going to do anything Officer Shive told them, got into another vehicle, and left the scene.
Officer Shive did not pursue the two former passengers and continued toward the gold-colored vehicle. As he approached, he saw [Applicant] reach toward the center console. When Officer Shive arrived at the vehicle, he stood slightly behind the driver-side window and identified himself as a police officer. [Applicant], rather than turning to face Officer Shive, turned his back to him and again reached for the center console. Officer Shive instructed him not to reach for the center console. When [Applicant] turned around, Officer Shive asked him for his identification, registration, and insurance information. [Applicant] provided his registration and insurance, but said he had no identification.
Officer Shive asked [Applicant] to step out of the vehicle and [Applicant] complied. [Applicant] then tried to reach into his pocket. Officer Shive ordered him not to put his hand in his pocket and asked him to put his hands on the trunk of the vehicle. While conducting a pat-down search, Officer Shive felt a cylindrical object about the diameter of a fifty-cent piece. [Applicant] said the cylindrical object was pepper spray.
When Officer Shive reached into [Applicant's] pocket to remove the pepper spray, he felt a baggie with a hard, rocky substance. When [Applicant] tried to prevent Officer Shive from taking items out of his pocket, Officer Shive wrestled him to the ground. [Applicant] got to his feet again, struck Officer Shive on the face, and ran toward the apartment complex.
[Applicant] was apprehended a few minutes later by Officers Wrede and Dahl. A red cell phone was found next to the area where Officer Shive wrestled [Applicant] to the ground. While Officers Wrede and Dahl were packaging the evidence seized at the scene, the cell phone rang a number of times. Officer Wrede answered each call and testified concerning the contents of the calls at trial. [Applicant] moved to suppress the evidence obtained during the stop, but the court denied the motion after a pretrial hearing.
( Bryant I, ECF No. 9-10, at 3-5).
Applicant's request for certiorari review was denied by the Colorado Supreme Court on November 9, 2009 (ECF No. 9-8), and by the United States Supreme Court on March 22, 2010. (ECF No. 9-6).
On April 10, 2010, Applicant filed pro se a motion for post-conviction relief pursuant to Colo. R. Crim. P. 35(c), which was denied summarily by the state district court on April 29, 2010. (ECF No. 9-5). The Colorado Court of Appeals affirmed in People v. Bryant ( Bryant II ), No. 10-CA1107 (Colo.App. June 21, 2012) (unpublished). (ECF No. 9-3). Applicant filed a petition for rehearing, which was denied on November 1, 2012. (ECF No. 9-2). He did not file a petition for certiorari review with the Colorado Supreme Court.
Applicant initiated this action on August 16, 2013. In a December 4, 2013 Order, the Court determined that Applicant presented the following claims in the Application, which are the same claims that he raised in his opening brief to the Colorado Court of Appeals in Bryant II:
Claim One: Trial counsel was ineffective in failing to:
a) conduct a sufficient investigation to discover that the officer who first spotted what looked like a drug transaction: (i) reported the wrong license tag number to dispatch; (ii) lied about his commendations; and, (iii) lied about the injury resulting from Applicant's assault, all of which would "most likely" have resulted in suppression of all evidence against him (ECF No. 1, at 12; 9-4, at 12-13);
b) impeach the officer with inconsistent preliminary hearing testimony ( id. at 13-14);
c) challenge a juror for cause, and to use a peremptory strike against the juror ( id. at 14-15);
d) require Applicant's presence during a discussion about whether to replace a juror with an alternate ( id. at 15-17);
e) renew the motion to suppress during trial, based on trial evidence that purportedly supported suppression ( id. at 17-18).
f) move to suppress and object to evidence that officers answered calls to applicant's cell phone and spoke with people who were seeking to buy drugs ( id. at 18-21);
g) seek a jury trial on the habitual criminal counts ( id. at 21-22);
h) move for a proportionality review ( id. at 22-24);
i) ensure a proper trial court advisement on the right to testify (a requirement set out in People v. Curtis, 681 P.2d 504 (Colo. 1984)) ( id. at 24-26); and,
j) the cumulative effect of trial counsel's mistakes caused prejudice sufficient to warrant a new trial ( id. at 26).
Claim Two: Appellate counsel was constitutionally ineffective in failing to:
a) challenge the absence of a jury determination of the habitual criminal counts (ECF No. 1, at 14; No. 9-4, at 27); and
b) appeal on the ground that one of the prior convictions used to enhance Applicant's sentence in this case was misnamed in the original information (it was amended prior to the habitual hearing) ( Id.; No. 9-4, at 27-28).
On October 15, 2013, Magistrate Judge Boyd N. Boland ordered Respondents to file a pre-answer response addressing the affirmative defenses of timeliness and exhaustion of state court remedies. In the pre-answer response, Respondents conceded that the Application was timely under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). (ECF No. 9, at 6-7). Respondents argued, however, that Applicant failed to exhaust state remedies for his claims because he did not present them in a petition for certiorari review to the Colorado Court of Appeals. In a December 4, 2013 Order, Senior U.S. District Judge Lewis T. Babcock rejected the affirmative defense of failure to exhaust. The Court addresses the merits of Applicant's claims below.
II. LEGAL STANDARDS
A. 28 U.S.C. § 2254
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). The applicant bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
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 the applicant 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. Additionally, we have recognized that an unreasonable application may occur if the state court either unreasonably extends, or unreasonably refuses to extend, a legal principle from Supreme Court precedent to a new context where it should apply.
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. In addition,
evaluating 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. Moreover, "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 federal 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 the petitioner 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)).
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).
B. Pro Se Litigant
Applicant is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Pro se status does not entitle Applicant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
A. Ineffective Assistance of Trial Counsel
In his first claim, Applicant raises several allegations of ineffective assistance of trial counsel (IAC). To prevail, Applicant must show that: (1) counsel's legal representation fell below an objective standard of reasonableness; and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Judicial scrutiny of counsel's performance is highly deferential. Id. at 689. Counsel's decisions are presumed to represent "sound trial strategy;" "[f]or counsel's performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong." Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999) (internal quotations omitted). Under the AEDPA standard of review, "the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland 's deferential standard." Richter, 131 S.Ct. at 788.
Prejudice exists when there is a reasonable probability that, but for counsel's defective representation, the result of the proceeding would have been different. Strickland, 466 U.S. at 693. The likelihood of a different result must be substantial, not just conceivable. Id. The Court need not address both ...