United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
R. Brooke Jackson United States District Judge
Order Judge R. Brooke Jackson Applicant, Andrew Plancarte, 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 Denver County, Colorado. Respondents have filed an Answer (Docket No. 31), and Applicant has filed a Reply (Docket No. 35). Having considered the same, along with the state court record, the Court will deny the Application.
In August 2006, Applicant was convicted of first degree burglary, second degree kidnapping, and two counts of third degree assault by a Denver District Court jury in Case No. 04CR2929 . (Docket Nos. 1, at 5; 15-1, at 3-4). He was sentenced to an aggregate prison term of 15 years with the Colorado Department of Corrections. (Docket No. 1, at 4-5). Applicant’s convictions and sentences were affirmed on direct appeal in People v. Plancarte, 232 P.3d 186, 189-91 (Colo.App. 2009) (Plancarte I). (Docket No. 15-2). The state appellate court summarized the relevant facts as follows:
On the evening of March 25, 2004, two separate attacks on female students occurred within thirty minutes of each other near the University of Denver campus. At approximately 7:45 p.m., B.T. was walking home from campus when a man jogged past her, turned around, looked at her, and continued jogging. B.T. entered her residence a few houses away through a back door, and a short time later, a man entered her home through that door and punched her. B.T. recognized him as the same man who had jogged past her. The man pulled B.T. out the back door, threw her to the ground, repeatedly punched her, and then fled. At approximately 8:00 p.m., M.S. was also walking home from campus. M.S. turned around after hearing the sound of someone coming up behind her. A jogger grabbed her waist, put a hand over her mouth, and punched her in the head and in her side. They fell to the ground and the man tried to strangle her. M.S. was able to scream, and the man ran off.
Shortly after the attacks, B.T. and M.S. each gave a statement to the police and made a composite sketch of her attacker using a computer program at the police station. Each victim’s description of her attacker, and each composite, appeared to pertain to the same man. The police released composites to the media and received numerous calls and tips regarding potential suspects. An anonymous caller advised police that the composite matched defendant’s description.
Based on the above evidence, defendant was arrested on May 26, 2004, and charged with one count of first degree burglary, two counts of second degree kidnapping, and two counts of third degree assault. Prior to trial, defense counsel filed a motion to suppress evidence of the out-of-court identifications of defendant by B.T. and M.S. At a hearing on the motion to suppress, the trial court heard testimony from B.T. and M.S., viewed video CDs of the identification process, and viewed the twenty photos. It then denied defendant’s motion, finding that the photographic array and identification procedure were not suggestive.
Plancarte I, 232 P.3d at 189. The Colorado Supreme Court denied Applicant’s petition for certiorari review on June 28, 2010. (Docket No. 15-3).
On March 24, 2011, Applicant filed a state post-conviction motion to correct an illegal sentence, pursuant to Colo. Crim. P. Rule 35(a), which was denied by the state district court on April 5, 2011. (Docket No. 15-1, at 9). Applicant did not appeal.
On August 31, 2011, Applicant filed a motion for post-conviction relief pursuant to Colo. Crim. P. Rule 35(c). (Id.). The state district court entered an order granting the Rule 35(c) motion to the extent that the Court determined that his convictions for third degree assault merged with his conviction for first degree burglary. (Id.). The state court denied the remainder of Applicant’s claims. (Id.). The Colorado Court of Appeals affirmed the district court’s order in People v. Plancarte, No. 11CA2433 (Colo.App. Dec. 5, 2013) (unpublished) (Plancarte II) (ECF No. 15-10). Applicant’s petition for certiorari review to the Colorado Supreme Court was denied on September 8, 2014. (Docket No. 15-11).
Applicant filed a § 2254 Application in this Court on November 25, 2014,  in which he asserts eight claims for relief:
1. Applicant’s consecutive sentences were imposed in violation of double jeopardy and the Eighth Amendment. (Docket No. 1 at 16).
2. Prosecutorial misconduct. (Id. at 21).
3. Applicant suffered a complete denial of trial counsel by virtue of his trial attorney’s failure to sufficiently argue an alibi defense, which failure resulted from a conflict of interest, ignorance of the law, and inexperience. (Id. at 33).
4. The theory of defense instruction denied Applicant his right to be convicted only under a verdict of guilty beyond a reasonable doubt. (Id. at 37).
5. Ineffective assistance of appellate counsel. (Id. at 41).
6. The postconviction court erred in failing to hold an evidentiary hearing. (Id. at 44).
7. Applicant’s right to due process was violated by the manner in which the police handled the photographic lineups. (Id. at 65).
8. Insufficient evidence. (Id. at 7).
In the Pre-Answer Response, Respondents conceded the timeliness of the Application under the AEDPA one-year limitation period set forth in 28 U.S.C. § 2244(d). (Docket No. 15, at 5-9). Respondents further conceded that Mr. Plancarte exhausted state court remedies for claim three. (Id. at 15). Respondents asserted, however, that claim six did not invoke the Court’s federal habeas jurisdiction (id. at 4-5), and that claims one, two, four, five, seven and eight were procedurally barred (id. at 15-17).
In a March 10, 2015 Order to Dismiss in Part, the Court agreed with Respondents’ arguments as to claims one, two, four, five and six and dismissed those claims. (Docket No. 23). The Court concluded, however, that Applicant exhausted state court remedies for claims seven and eight. (Id.).
The Court reviews the merits of claims three, seven and eight below under the AEDPA standard of review. (Id.).
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, 562 U.S. 86, 98-99 (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 98. 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 99. 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 98. 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. 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, 562 U.S. at 101 (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, 562 U.S. at 88 (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, 562 U.S. at 102.
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] ...