United States District Court, D. Colorado
ORDER DENYING § 2254 APPLICATION
WILLIAM J. MARTINEZ, District Judge.
Applicant, Genero Zuniga, is a prisoner in the custody of the Colorado Department of Corrections (DOC) at the correctional facility in Sterling, Colorado. Mr. Zuniga, acting pro se, has filed an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) challenging the validity of his conviction in Arapahoe County, Colorado, District Court Case No. 04CR1690. Respondents filed an Answer on July 11, 2014 (ECF No. 25), and Applicant filed a Reply on August 28, 2014, after obtaining an extension of time (ECF No. 31). Having considered the same, along with the state court record, the Court concludes that the Am ended Application should be denied.
I. BACKGROUND AND STATE COURT PROCEEDINGS
Following a gang-related shooting, Mr. Zuniga was convicted in Arapahoe County District Court Case No. 04CR1690 of first-degree murder after deliberation, three counts of attempted first-degree murder after deliberation, conspiracy to commit first-degree murder after deliberation, and second-degree assault. The Colorado Court of Appeals provided the following summary of the evidence at Applicant's trial:
According to the prosecution, Zuniga and his codefendant, Antonio Stancil, drove into a 7-Eleven parking lot and noticed a group of high school age boys in another car. Zuniga displayed a gang sign identifying him as a member of the Bloods to the boys. In response, one of the boys, a self-described "wannabe" gangster, displayed the sign for a rival Crips gang. The defendants' car left the 7-Eleven, made a U-turn, and waited for the boys to leave. The defendants then followed them for two miles down a residential street, pulled alongside of their car, and opened fire. The driver was killed, and one passenger was wounded.
The next morning, police officers responding to an unrelated call discovered a car matching the description of the shooters'. Zuniga and Stancil were arrested that morning at the residence of K.W., the owner of the car.
People v. Zuniga, No. 05CA1623 (Colo. Ct. App. May 13, 2010) (unpublished) ( Zuniga I) (ECF No. 13-4, at 2-3).
Applicant was sentenced to a prison term of life without the possibility of parole, plus 128 years. (Id. ). His convictions were affirmed on appeal in Zuniga I. (ECF No. 13-4).
On November 4, 2010, Mr. Zuniga filed a motion for postconviction relief pursuant to Colo. Crim. P. Rule 35(c), which was denied summarily by the state district court on December 1, 2010. (ECF No. 13-1, at 12; No. 13-9, at 2). The Colorado Court of Appeals affirmed the trial court's order in People v. Zuniga, No. 11 CA0072 (Colo.App. Oct. 4, 2012) (unpublished) ( Zuniga II ). (ECF No. 13-9). On April 29, 2013, the Colorado Supreme Court denied certiorari review. (ECF No. 13-10).
On August 21, 2013, Mr. Zuniga filed his original habeas corpus application (ECF No. 1) with the Court. Mr. Zuniga asserts the following claims in the Amended Applicaiton:
(1) The trial court's failure to sever Applicant's case from the codefendant's violated due process. (ECF No. 6, at 5-7).
(2) The elements instruction for complicity relieved the prosecution of its burden of proof. (Id. at 8-9).
(3) The verdicts were not supported by sufficient evidence. (Id. at 8, 10).
(4) Trial counsel rendered ineffective assistance by failing to exercise a peremptory challenge. (Id. at 11).
(5) Appellate counsel rendered ineffective assistance by failing to present issues concerning: (a) juror bias under Batson v. Kentucky, 476 U.S. 79 (1986); (b) prosecutorial misconduct during closing argument; (c) the omission of a unanimity instruction; (d) the unconstitutional use of a sentence enhancer; and, (e) the violation of Applicant's Fourth Amendment rights under Georgia v. Randolph, 547 U.S. 103 (2006). (Id. at 12-15).
In an order entered on January 9, 2014, Magistrate Judge Boyd N. Boland directed Respondents to file a pre-answer response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A) if Respondents intended to raise those affirmative defenses in this action. Respondents filed a Pre-Answer Response in which they conceded that the instant action was filed within the one-year limitation period set forth in 28 U.S.C. § 2244(d). (ECF No. 13, at 3-6). Respondents further conceded that claim 4 was exhausted in the state courts. (Id. at 10). Respondents argued, however, that claims 1, 2, 3 and 5 were procedurally barred. (Id. at 10-19).
On June 18, 2014, the Court entered an Order, dismissing claim 1 as procedurally defaulted. (ECF No. 21, at 22). The Court rejected Respondent's exhaustion/procedural default defense for claims 2, 3 and 5 and ordered Respondents to file an Answer within 30 days. (Id.).
II. STANDARD OF REVIEW
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. [lit 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.
Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (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. The court thus "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). The 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). An applicant's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
III. MERITS OF CLAIMS
A. Claim Two
For his second claim, Applicant contends that the elements instruction for complicity relieved the prosecution of its burden to prove every element of the crime beyond a reasonable doubt. (ECF No. 6, at 8-9).
The government must prove beyond a reasonable doubt every element of a charged offense. In re Winship, 397 U.S. 358 (1970). In the context of jury instructions, the constitutional inquiry is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard." Victor v. Nebraska, 511 U.S., 1, 6 (1994); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (stating that federal habeas relief is not warranted unless the petitioner can establish that the challenged jury instruction so tainted the trial as to deprive him of due process). Further, jury instructions "may not be judged in artificial ...