United States District Court, D. Colorado
ORDER ON APPLICATION FOR A WRIT OF HABEAS CORPUS
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Application") [#1],  filed December 5, 2013, by Applicant James Sidney Triggs. Respondents answered the Application [#28], and Applicant filed a traverse [#29]. After reviewing the pertinent portions of the record in this case, including the Application, the Answer, the Traverse, and the state court record, I conclude that the Application should be denied.
Applicant is serving an aggregate 100-year prison term in the Colorado Department of Corrections for his 2006 convictions of five counts of sexual assault on a child by one in a position of trust (SAC PAT), five counts of sexual assault on a child as part of a pattern of sexual abuse (SAC POT), and four counts of sexual exploitation of a child (SEC), in Larimer County District Court Case No. 04CR1945. (State Court R., Court File, jury verdicts, at 141-157; mittimus, at 315-318).
The Colorado Court of Appeals summarized the relevant facts on direct review of Applicant's convictions:
In December 1994, the Larimer County Department of Human Services (LCDHS) began providing services to [Applicant's] family. Six of [Applicant's] children were temporarily placed in foster case. The family was reunited from December 20, 1994 until July 10, 1995, when LCDHS removed the children permanently. Following removal, the children began to exhibit behavior consistent with sexual abuse, and LCDHS, law enforcement, therapists, and foster parent interviewed one or more of the children in 1996, 1999, 2001, and 2003. As a result, in 2005, [Applicant] was charged with seventeen counts of sexual offenses involving six of his children. The children all testified at trial; four testified about sex abuse of varying kinds by [Applicant].
People v. Triggs ( Triggs I ), No. 06CA1060 (Colo.App. Dec. 24, 2009) (unpublished decision). [#11-7, at 4-5].
The Colorado Court of Appeals affirmed Mr. Triggs' convictions and sentences in Triggs I. [#11-7]. The Colorado Supreme Court denied Applicant's request for certiorari review on April 26, 2010. [#1, at 5].
Mr. Triggs filed a post-conviction motion for reduction of sentence that was denied by the state district court on September 28, 2010. [ Id. ]. Applicant did not file an appeal.
On May 11, 2011 Mr. Triggs filed a motion for post-conviction relief pursuant to Colo. R. Civ. P. 35(c), which was denied by the state district court summarily on May 24, 2011. [#11-1, at 10]. The Colorado Court of Appeals affirmed the district court's order in People v. Triggs ( Triggs II ), 11CA1168 (Colo.App. Jan. 17, 2013) (unpublished). [#11-3]. The Colorado Supreme Court denied certiorari review on September 16, 2013. [#1, at 31].
Mr. Triggs initiated this action on December 5, 2013. I discern the following claims from the Application:
(1) the prosecution failed to produce material exculpatory information, in violation of Applicant's due process rights by: (a) failing to disclose information that would impeach its experts, which the trial court purportedly ordered disclosed [#1, at 33, 34]; and, (b) "suppressing" medical evidence that would have contradicted evidence that Applicant sexually penetrated two of his children, KT and his eldest son (namely, the absence of physical signs of penetration). [ Id. at 43-44].
(2) the trial court erroneously excluded a statement by a doctor who examined KT that KT's hymen was still intact. Applicant contends that the statement would have disputed evidence that he sexually penetrated his daughter KT and his eldest son repeatedly. [ Id. at 42, 43].
(3) Applicant was denied a useful bill of particulars. [ Id. at 42].
(4) Applicant's trial counsel was constitutionally ineffective by: (a) failing to "produce a claim of double jeopardy [ id. at 40]; (b) failing to seek recusal of the trial judge for (i) judicial bias [ id. ] and (ii) failing to declare a mistrial based on improper comments made by the prosecution at the prosecution table or during bench conferences, and overheard by the jury [ id. at 40, 50]; (c) failing to seek a mistrial when a juror notified the court and parties that the jury could hear a bench conference [ id. at 40]; (d) failing to notify the appropriate authorities of the trial judge's alleged bias [ id. at 41]; (e) failing to notify the appropriate authorities of the prosecutor's misconduct [ id. ]; (f) filing a Rule 35(b) motion that allegedly suggested that Applicant was willing to admit certain sexual assaults, when in fact, Applicant refused to admit crimes for which he was actually innocent [ id. ]; and, (g) failing to call "at least two crucial defense witnesses" [ id. ].
(5) The prosecutor engaged in misconduct by: (a) making improper "extra-judicial" comments at the prosecution table, which were overheard by the jury [ id. at 42]; (b) making improper comments overheard by the jury during bench conferences [ id. at 40, 50-52]; (c) violating several federal statutes [ id. at 44-46]; and, during closing argument (i) expressing "community sentiment of sexual offenders in back yards of the community; (ii) expressing personal opinions about Applicant's character; and, (iii) misstating the trial evidence [ id. at 50].
(6) The trial court erroneously denied a challenge for cause to juror R, in violation of Applicant's rights under the First, Fourth, Sixth, Eighth and Fourteenth Amendments, due process and ethical rules. [ Id. at 46-48, 51].
(7) The trial court violated Applicant's rights to due process and a fair trial by an impartial jury by permitting the jury to be exposed to "extraneous information" -namely, comments made during bench conferences-and failing to conduct a "post trial audit" or other investigation into jury exposure to extraneous information. [ Id. at 50-52].
(8) The trial court failed to ensure, via the verdict forms or otherwise, that the verdicts were unanimous on the act supporting each conviction, in violation of due process. [ Id. at 49].
(9) The trial court committed cumulative error by failing to consider: (a) double jeopardy; (b) admission of "third party hearsay"; and, (c) the fact that improper child-interviewing techniques produced all of the damning (but false and unreliable) evidence against him from his children, in violation of due process. [ Id. at 53-56].
(10) Applicant's double jeopardy rights were violated when he was punished once when his parental rights were revoked, and then again with criminal convictions and sentences. [ Id. at 57-59].
(11) Applicant is actually innocent of the crimes. [ Id. at 38-39; 53-59].
(12) The subsection of the sexual exploitation statute under which Applicant was convicted, COLO. REV. STAT. ("C.R.S.") § 18-6-403(3), is unconstitutionally vague. [ Id. at 35].
Respondents concede that the Application is timely pursuant to the AEDPA one-year limitation period, 28 U.S.C. § 2244(d)(1). [#11, at 8-9]. Respondents further concede that Applicant exhausted state remedies for claims 1(a), 4(b)(i), 8, and 12. [ Id. at 24-26, 43, 50-51]. Respondents argued in the pre-answer response, however, that the remainder of Applicant's claims, to the extent the claims present federal issues, are barred from federal habeas review based on the doctrines of procedural default and anticipatory procedural default. [ Id. at 26-50]. In a previous order, I dismissed the following claims as procedurally barred: sub-claim 1(b), a portion of claim 2 (relating to Applicant's eldest son), claims 3, 5, 6, 7, 9(b), 9(c), the assertion of cumulative error in claim 9, and claims 10 and 11. [#27, at 30]. I rejected Respondents' defense of failure to exhaust state court remedies with regard to the allegation in claim 2 relating to victim KT. [ Id. at 13-14]. I further dismissed claim 9(a) as unduly vague. [ Id. at 30]. I deferred ruling on the applicability of a procedural bar to claims 4(a), 4(b)(ii) 4(c) through (g), pending receipt of the state court record and Respondents' argument in the Answer as to whether the allegations in those claims have substantial merit under Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012). [ Id. at 18].
I address claims 1(a), 2 (pertaining to KT), 4, 8 and 12 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).
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 Richter presumption is also applicable when a state-court opinion addresses some but not all of those claims. Johnson v. Williams, 133 S.Ct. 1088, 1094-98 (2013). For purposes of § 2254(d), when a state court rules against a defendant in an opinion that rejects some of the defendant's claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Id. at 1094-96. Federal habeas courts should not assume that any unaddressed federal claim simply was overlooked because a state court does not uniformly discuss separately every claim referenced by a defendant. 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 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). "[R]eview 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)).
B. PRO SE LITIGANT
Applicant is proceeding pro se. I thus "review 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). Additionally, I 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 ...