United States District Court, D. Colorado
ORDER DENYING § 2254 APPLICATION
RAYMOND P. MOORE, District Judge.
Applicant, Preston Cousett, is in the custody of the Colorado Department of Corrections (CDOC) and is incarcerated at the Skyline Correctional Center in Canón City, Colorado. He has filed an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 8) challenging the validity of his convictions and sentence imposed in El Paso County, Colorado, District Court Case No. 04CR1331. Respondents have filed an Answer (ECF No. 32), and Applicant was afforded the opportunity to file a Reply. Having considered the same, along with the state court record, the Court will deny the Application.
In November 2007, Applicant was convicted by a state district court judge in El Paso County District Court Case No. 06CR313 of numerous counts of aggravated robbery, attempted robbery, menacing, and theft, as well as several crime of violence counts. (ECF No. 16-1, at 6-20). He was sentenced to an aggregate prison term of 20 years with the CDOC. ( Id. at 26-27).
Applicant's convictions and sentences were affirmed on direct appeal in People v. Cousett, No. 08CA0356 (Colo.App. Sept. 22, 2011) (unpublished) (ECF No. 16-7). The Colorado Supreme Court denied Applicant's petition for certiorari review on February 27, 2012.
On August 13, 2012, Applicant filed a state post-conviction motion for sentence reconsideration and reduction of mandatory sentence. (ECF No. 16-1, at 24). The state district court denied the motion on August 20, 2012. ( Id. ). Applicant did not appeal the order.
On November 13, 2012, Applicant filed a motion for post-conviction relief pursuant to Colo. Crim. P. Rule 35(c), which was denied summarily by the state district court on November 20, 2012. ( Id. at 24; see also ECF No. 16-4). The Colorado Court of Appeals affirmed the district court's order in People v. Cousett, No. 13CA0007, Colo.App. July 31, 2014) (unpublished) (ECF No. 16-2). Applicant did not seek certiorari review in the Colorado Supreme Court.
Applicant initiated a § 2254 proceeding in this Court on September 22, 2014. The operative pleading is the Amended Application, filed on November 13, 2014 (ECF No. 8). Although the Amended Application purports to assert five claims, Applicant's allegations can be distilled into two claims for relief. Applicant asserts that his convictions violated the Fourteenth Amendment Due Process Clause and his Fifth Amendment privilege against self-incrimination because his confession to police officers was: (1) coerced; and (2) obtained in violation of his Miranda  rights, where his waiver of the right to counsel was not knowing and voluntary.
In the Pre-Answer Response, filed on November 24, 2014 (ECF No. 16), Respondents conceded that the original Application was timely-filed under the AEDPA one-year limitation period set forth in 28 U.S.C. § 2244(d). ( Id. at 4-7). Respondents further conceded that Applicant exhausted state court remedies for his first claim. ( Id. at 15). Respondents contended, however, that claim two was unexhausted, and procedurally barred, because Applicant no longer has a state court remedy available to him. ( Id. at 15-17). In a January 20, 2015 Order, the Court dismissed claim two as procedurally barred. (ECF No. 29; ECF No. 25, at 7).
The Court addresses the merits of claim one 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. ...