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Herrera v. Falk

United States District Court, D. Colorado

November 30, 2015

KEVIN R. HERRERA, Applicant,



This matter is before the Court on petitioner Kevin R. Herrera’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner challenges his convictions on the grounds that he received ineffective assistance of appellate counsel and that prosecutorial misconduct improperly influenced the indictment returned by the grand jury. (ECF No. 1.) For the following reasons, the Court (1) DENIES petitioner’s application; (2) DISMISSES the petition with prejudice; and (3) DENIES issuing a certificate of appealability.


Applicant’s convictions arose out of an incident that occurred in May, 1998 when, as described by the Colorado Court of Appeals,

[petitioner] and two of his cousins (D.T. and A.S.) conspired to take revenge upon a person who had shot [petitioner’s] brother. The three relatives drove up in a green Toyota RAV4 alongside a red pickup truck in which two men, one of whom was the person who had shot [petitioner’s] brother, were sitting; gunshots directed at the pickup truck killed one man and seriously wounded the other (R.M.). [Petitioner] and his brother were members of one gang, and the person who shot defendant’s brother was a member of a rival gang.

(ECF No. 10-6, People v. Herrera, 12CA0312 (Colo.App. May 22, 2012) (unpublished)).

Petitioner was indicted by a grand jury on September 29, 1999, on charges of first degree murder with deliberation, first degree murder with extreme indifference, conspiracy to commit first degree murder, and criminal attempt to commit first degree murder. Petitioner pled not guilty to these counts and proceeded to trial in November, 2003. On December 11, 2003, a jury found petitioner guilty on the charges of conspiracy to commit first degree murder, being an accessory to attempted murder in the first or second degree of R.M., and being an accessory to murder in the first or second degree of the deceased victim, but could not reach a verdict on the charges of first degree murder or criminal attempt to commit first degree murder and a mistrial was declared as to those counts. The court sentenced petitioner to 40 years in the department of corrections on the conspiracy to commit murder charge and four years on each accessory count, with each accessory count to run concurrent with one another but consecutive to the conspiracy count.

Petitioner appealed his convictions, raising the single issue that the trial court erroneously admitted the hearsay statement of D.T. that petitioner argued was not in furtherance of the conspiracy. (ECF No. 10-2. App. Br. Mar. 31, 2006.) The Colorado Court of Appeals affirmed. (ECF No. 10-3, People v. Herrera, 04CA0558 (Colo.App. May 24, 2007) (unpublished)).

Petitioner subsequently filed a pro se motion for post-conviction relief under Colo. R. Crim. P. 35(c). (ECF No. 10-1, Case Activities Sheet at 19.) The Colorado district court appointed counsel for petitioner and conducted several hearings on the motion. (ECF No. 10-6, People v. Herrera, 12CA0312 (Colo.App. May 22, 2012) (unpublished), at 4.) The district court denied petitioner’s motion, (ECF No. 10-1, Case Activities Sheet at 14), the Colorado Court of Appeals affirmed that order, (ECF No. 10-6, People v. Herrera, 12CA0312 (Colo.App. May 22, 2012) (unpublished)), and the Colorado Supreme Court denied certiorari. (ECF No. 10-8, Herrera v. People, 2014SC503 (Colo. Supr. Ct. Dec. 22, 2014) (unpublished)).

Petitioner previously initiated two actions seeking habeas review under 28 U.S.C. §2254, both of which were dismissed without prejudice for failure to exhaust petitioner’s state court remedies. Herrera v. Jones et al., 08-cv-01575-BNB, 2008 WL 4642216 (D. Colo. Oct. 8, 2008) (unpublished); Herrera v. Jones et al., 08-cv-02761-CMA (D. Colo. May 25, 2011) (unpublished). Petitioner filed the present habeas petition on January 20, 2015. (ECF No. 1.) An order was entered by U.S. Magistrate Judge Gordon Gallagher on April 22, 2015 finding that petitioner’s application was timely and that all claims had been exhausted at the state court. (ECF No. 21.)

Petitioner’s current habeas petition raises two claims of error. First, with respect to several issues omitted from his direct appeal, petitioner argues ineffective assistance of appellate counsel under Strickland v. Washington, 466 U.S. 668 (1984). Specifically, petitioner claims that appellate counsel erred by failing to assert that petitioner’s constitutional rights were violated because he never received notice that the prosecution would seek an aggravated sentence. Petitioner also claims that appellate counsel erred by failing to challenge whether petitioner was denied his state and federal right to a speedy trial. Finally, petitioner claims that appellate counsel erred by failing to challenge the admission of certain out-of-court statements made during trial under the Supreme Court’s ruling in Crawford v. Washington, 541 U.S. 36 (2004).

Petitioner’s second claim of error is that of prosecutorial misconduct. Petitioner argues that during the grand jury proceedings, the prosecutor misrepresented that a shell cartridge recovered from the vehicle used in the victim’s murder matched a gun owned by petitioner’s brother and obtained by petitioner just before its use in the murder. Petitioner argues that the alleged prosecutorial misconduct undermined the grand jury’s finding of probable cause.


A. Pro Se Status

The Court must construe the papers filed by petitioner liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 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, 935 F.2d at 1110. A court may not assume that a pro se applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. See Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). The Court should not act as an advocate for a pro se applicant. See Hall, 935 F.2d at 1110. An applicant’s pro se status does not entitle him to an application of different rules of civil procedure. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

B. 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 d et ermined b y th e Supr em e 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 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 pursuant to § 2254(d)(1) is whether the petitioner 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 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 one. 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. It 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, 562 U.S. 86, 101 (2011) (internal quotation marks and citation omitted). 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 fair minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. “[E]ven a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. (citation omitted). “Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Id. (internal quotations marks and citation omitted).

Under this standard, “only the most serious misapplications of Supreme Court precedent will be a basis for relief under § 2254.” May ...

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