United States District Court, D. Colorado
ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS
LEWIS T. BABCOCK United States District Judge
This matter is before the Court on the amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 12) (the “Amended Application”) filed pro se on September 2, 2014, by Applicant, Demetrius Thomas. Mr. Thomas is challenging the validity of his conviction in El Paso County District Court case number 07CR308. Respondents have filed an Answer to Application for Writ of Habeas Corpus (ECF No. 41) (“the Answer”) and Mr. Thomas has filed a Reply to Answer to Application for Writ of Habeas Corpus (ECF No. 46) (“the Traverse”). After reviewing the record, including the Amended Application, the Answer, the Traverse, and the state court record, the Court FINDS and CONCLUDES that the Amended Application should be denied and the case dismissed with prejudice.
Mr. Thomas was charged with attempted first degree murder, first degree assault, felony menacing, and a violent crime sentence enhancer based on his participation in a drive-by shooting. The jury at his first trial found Mr. Thomas not guilty of felony menacing but was unable to reach a verdict on the remaining counts and a mistrial was declared as to those counts. Mr. Thomas was retried and a jury at his second trial found him guilty of first degree assault and the violent crime sentence enhancer. The judgment of conviction was affirmed on direct appeal. See People v. Thomas, No. 08CA1492 (Colo.App. May 20, 2010) (unpublished) (ECF No. 20-3). On August 16, 2010, the Colorado Supreme Court denied Mr. Thomas’ petition for writ of certiorari on direct appeal. (See ECF No. 20-5.)
On March 4, 2011, Mr. Thomas filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 20-1 at 10.) On June 17, 2011, the trial court denied the Rule 35(c) motion. (See id.) The trial court’s order was affirmed on appeal. See People v. Thomas, No. 11CA1572 (Colo.App. Jan. 24, 2013) (unpublished) (ECF No. 20-8).
On March 15, 2013, Mr. Thomas filed in the trial court a second postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 20-1 at 8.) On April 12, 2013, the trial court denied the second Rule 35(c) motion as successive. (See id.) The trial court’s order denying the second Rule 35(c) motion was affirmed on appeal because the claims in the second Rule 35(c) motion were raised, or could have been raised, in a prior appeal or postconviction proceeding. See People v. Thomas, No. 13CA0806 (Colo.App. May 15, 2014) (unpublished) (ECF No. 20-11).
The instant action was commenced on July 14, 2014. Respondents filed a Pre-Answer Response (ECF No. 20) that identified twenty-five separate claims for relief in the Amended Application, including some with subparts. In his reply (ECF No. 22) to the Pre-Answer Response Mr. Thomas agreed that he is asserting the twenty-five claims identified by Respondents. The Court previously entered an Order to Dismiss in Part (ECF No. 36) dismissing most of Mr. Thomas’ claims as unexhausted and procedurally barred. The only claims that remain to be considered on the merits are claims 7(d), 8, 20(a)(i), and 23. Mr. Thomas contends in his remaining claims that trial counsel was ineffective by refusing to introduce evidence that Mr. Thomas was accused falsely (claim 7(d)); his retrial was barred by double jeopardy (claim 8); counsel on direct appeal was ineffective by failing to raise a claim that Mr. Thomas’ second trial was barred by double jeopardy (claim 20(a)(i)); and the trial court erred by refusing to accept the jury’s inconsistent verdicts and ordering the jury to deliberate further (claim 23).
II. STANDARDS OF REVIEW
The Court must construe the Amended Application and other papers filed by Mr. Thomas 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. Thomas 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. See 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 Mr. Thomas 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 under § 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 [(10thCir. 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, 562 U.S at 101 (internal quotation marks and citation 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. at 102. 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, 562 U.S. at 102 (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 ...