United States District Court, District of Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE
This matter is before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. # 1) (“the Application”) filed by Applicant Gabriel Esparza. Respondents have filed an Answer to Petition for Writ of Habeas Corpus (Doc. # 21) (“the Answer”) and Mr. Esparza has filed a Reply to Respondents’ Answer (Doc. # 25) (“the Reply”). After reviewing the record, including the Application, the Answer, the Reply, and the state court record, the Court FINDS and CONCLUDES that the Application should be denied and the case dismissed with prejudice.
Mr. Esparza is challenging the validity of his conviction and sentence in the Arapahoe County District Court case number 04CR1256. In direct appeal proceedings, the Colorado Court of Appeals summarized the factual background of Mr. Esparza’s conviction as follows:
Defendant, Gabriel Esparza, appeals his judgment of conviction from the Arapahoe County District Court, entered upon a jury verdict, for first degree murder after deliberation of Tina Esparza, his estranged wife, aggravated motor vehicle theft, and violation of a criminal restraining order. We affirm.
In December 2003, five months before she was murdered, Tina Esparza discovered that defendant had been secretly videotaping her daughters in various states of undress with devices hidden in a bedroom and bathroom of the family home. She notified law enforcement authorities, who filed sexual assault charges against defendant in Jefferson County, Case No. 03M6227, and obtained a protection order for herself and two of her daughters, which required defendant to vacate the family home and move to a separate resident. The couple began the process of dissolving their marriage.
During the months following the separation, defendant was seen in the neighborhood of the family home, took his wife’s truck from the parking garage at the Englewood Civic Center (ECC) where she worked, and violated the protection order in early May 2004 by sending flowers to his wife for Mother’s Day under the daughters’ names. Shortly after noon on May 14, 2004, witnesses heard a loud noise come from the parking garage at the ECC, found Tina Esparza’s body lying in a pool of blood on the floor of the parking structure, and saw a gray van speeding out of the garage. Defendant’s wife was dead on arrival at Swedish Medical Center. The following day, defendant turned himself in to the Clear Creek County Sheriff’s Department after seeing the murder described in a newspaper and learning that he was wanted for the murder.
Through counsel at his trial, defendant did not deny shooting his wife but argued in both opening statement and closing argument that he was guilty only of reckless manslaughter because his actions were impulsive and unexpected, not premeditated.
People v. Esparza, No. 05CA1952, slip op. at 1-2 (Colo.App. Apr. 30, 2009) (Doc. # 8-7 at 3-4). The judgment of conviction was affirmed on direct appeal. Id. On July 20, 2009, the Colorado Supreme Court denied Mr. Esparza’s petition for writ of certiorari. (See Doc. # 1-2).
On December 7, 2009, Mr. Esparza filed in the state district court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See Doc. # 8-1 at 4). Mr. Esparza also requested appointment of postconviction counsel, but the state district court did not appoint counsel and summarily denied his Rule 35(c) motion. (See Doc. # 1-3). On January 19, 2012, the Colorado Court of Appeals affirmed the trial court’s order denying the Rule 35(c) motion. (See Doc. # 1-4 at 2). On September 23, 2013, the Colorado Supreme Court denied Mr. Esparza’s petition for writ of certiorari. (See Doc. # 1-5).
On April 28, 2014, Mr. Esparza filed the § 2254 Application asserting seven claims for relief. He asserts in Claim One that his Fourth Amendment rights were violated when he was arrested without a warrant and searched. He contends in Claim Two that the trial court violated his Fourth Amendment rights by denying his motion to suppress evidence from invalid searches. Mr. Esparza asserts in Claim Three that he was tried before a biased judge who should have recused himself in violation of his due process rights under the Fifth and Fourteenth Amendments. He asserts in Claim Four that the trial court violated his due process rights under the Sixth and Fourteenth Amendments by making prejudicial evidentiary rulings. He alleges in Claim Five that his due process rights were violated because the prosecution misled defense counsel and the trial court refused to hold a suppression hearing. Mr. Esparza asserts in Claim Six that his due process rights were violated by prosecutorial misconduct. Mr. Esparza finally contends in Claim Seven that he received ineffective assistance of trial counsel because (a) counsel did not conduct a sufficient investigation into his casino alibi defense; (b) counsel failed to secure a Gun Shot Residue expert to challenge the State’s interpretation of the CBI test results; (c) counsel did not represent him during the motions hearing concerning a forced handwriting exemplar; and (d) counsel infringed on his right to plead not guilty and to testify on his own behalf by admitting his guilt to the jury in opening statements. The Court previously entered an Order to Dismiss in Part dismissing Claim 7(c) as unexhausted and procedurally barred. (See Doc. # 19).
II. STANDARDS OF REVIEW
The Court must construe the Application and other papers filed by Mr. Esparza liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
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. Esparza 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 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.
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 the Applicant 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. 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 makes 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).
III. MERITS OF APPLICANT’S REMAINING CLAIMS
A. Claim One
Mr. Esparza alleges he was arrested without a warrant and searched in violation of the Fourth Amendment. (Doc. # 1 at 5-7). Specifically, he asserts that the trial court erred in failing to suppress evidence obtained by the search because the trial court incorrectly found that Mr. Esparza was validly arrested based on the restraining order violation. (Id. at 6). Mr. Esparza also contends that the trial court erred in finding, in the alternative, that even if the arrest was not valid, a good faith exception applied and thus exclusion of the evidence was not required, as explained in Herring v. United States, 129 S.Ct. 695 (2009). (Id. at 7).
The Fourth Amendment protects against unreasonable search and seizure and is generally enforced through the exclusionary rule. See, e.g., Illinois v. Gates, 462 U.S. 213, 254 (1983). In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme Court limited federal habeas review of alleged Fourth Amendment violations. In Stone, the Supreme Court held that
[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment Claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.
Id. at 481-82.
The United States Court of Appeals for the Tenth Circuit has noted that “[a]lthough Stone announced a verbal standard, it failed to clothe the words ‘opportunity for full and fair litigation’ with any precise meaning.” Gamble v. State of Okla., 583 F.2d 1161, 1164 (10th Cir. 1978). Therefore, the Tenth Circuit has determined that the meaning of the phrase, “opportunity for full and fair litigation, ” “includes, but is not limited to, the procedural opportunity to raise or otherwise present a Fourth Amendment claim.” Id. at 1165. It also includes the full and fair evidentiary hearing contemplated by Townsend v. Sain, 372 U.S. 293 (1963). Id. Furthermore, it contemplates recognition and at least a colorable application of the correct Fourth Amendment constitutional standards. Id. “Thus, a federal court is not precluded from considering Fourth Amendment claims in habeas corpus proceedings where the state court wilfully refuses to apply the correct and controlling constitutional standards.” Id.; see also Sanders v. Oliver, 611 F.2d 804, 808 (10th Cir. 1979).
In his state court proceedings, Mr. Esparza’s counsel filed a motion to suppress evidence obtained from the search subsequent to his arrest. (Doc. # 8-1 at 16). After hearing the testimony of police officers regarding Mr. Esparza’s arrest and the arguments of counsel, the trial court denied the motion to suppress, finding that the arresting officers had confirmed an active warrant through dispatch and that the seizure of Mr. Esparza was valid based on the restraining order violation. (See State Court R., 2/24/05 Hrg. Trans. at 393-484; 3/16/05 Hrg. Trans. at 495-574).
On appeal, the Colorado Court of Appeals addressed the merits of Mr. Esparza’s Fourth Amendment claim as follows:
Suppression rulings present issues of both law and fact. People v. Alameno, 193 P.3d 830, 834 (Colo. 2008). “[W]e defer to the factual findings of the court so long as there is sufficient evidence in the record to support the findings, but we subject the trial court’s legal conclusions to de novo review.” People v. Arroya, 988 P.2d 1124, 1129 (Colo. 1999).
At the preliminary hearing, a deputy from the Jefferson County Sheriff’s Office testified that he had been investigating the restraining order violation stemming from Tina Esparza’s allegation that defendant had sent her flowers in her daughters’ names. After the deputy communicated with the flower shop, he determined that he had probable cause to arrest defendant. The deputy discussed the situation with defendant over the phone on the day before the murder, indicating that defendant might be charged with violating the restraining order.
On May 14, 2004, the day of the murder, when the deputy learned that Tina Esparza had been killed, he faxed an affidavit for an arrest warrant for the restraining order violation to the Jefferson County duty judge, who signed it and faxed it back to him at 6:05 p.m. The portion of the form filled out by the deputy contains a checked box next to “AFFIDAVIT FOR ARREST WARRANT”; the portion apparently filled out by the judge contains a checked box next to “Probable Cause FOUND, ” but no mark appears in the box corresponding to “Arrest Warrant Issued.”
However, the only arrest warrant for violation of the restraining order found in the record is dated May 26, 2004. Nonetheless, an entry was made by the Colorado Crime Information Center (CCIC) at 7:05 p.m., after the judge approved the issuance of an arrest warrant, indicating that the warrant was issued. In reliance upon this computer entry, the Clear Creek County Sheriff arrested defendant when he turned himself in the next day, and pursuant to the arrest, searched him.
We first conclude that the trial court did not err in finding that defendant was validly arrested based on the restraining order violation. Although the judge did not check a box on the form presented to him, he expressly found that probable cause existed to arrest defendant for the restraining order violation, thus satisfying the formalities required for the issuance of an arrest warrant under Crim. P. 4.2. Defendant does not argue that the finding of probable cause was erroneous. Although the paper arrest warrant was apparently not issued at the time the judge approved the issuance of a warrant, the CCIC database correctly showed that defendant was wanted for a violation of the restraining order, supplying probable cause for defendant’s arrest.
Since the arrest of defendant was valid, the search incident to the arrest was valid, and items seized in that search were admissible in defendant’s subsequent murder trial, even though the arrest was for violation of the restraining order. An officer conducing a search incident to a lawful custodial arrest “may seize and examine weapons, contraband, or other articles which the officer reasonably believes to be related to criminal activity even though these articles do not directly relate to the offense for which the arrest itself was effected.” See People v. Bischofberger, 724 P.2d 660, 665 (Colo. 1986).
Alternatively, even if defendant’s arrest was not valid, the denial of his suppression motion is warranted under section 16-3-308, C.R.S. 2008, which provides that evidence shall not be suppressed if seized as a result of a good faith mistake or a technical violation. A good faith mistake is defined as “a reasonable judgmental error concerning the existence of facts . ...