United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
This case is before this Court pursuant to the Order of Reference entered May 7, 2015, and the parties’ unanimous consent to disposition of this action by a United States Magistrate Judge. (See ECF No. 17).
Applicant Joshua LeBey Goldsworth is serving a five-year sentence of supervised probation resulting from a jury verdict finding him guilty of one misdemeanor count of promotion of obscenity, Colo. Rev. Stat. § 18-7-102(2). In this action for a writ of habeas corpus governed by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, Mr. Goldsworth maintains that his conviction in Larimer County Court case number 10M1711 was unconstitutionally obtained.
The Larimer County District Court, sitting in its appellate capacity, summarized the factual background and procedural history of Mr. Goldsworth’s case as follows:
On May 19, 2010, Appellant was using a school computer in the Shepardson Computer Hall on the Colorado State University campus. Appellant accessed a number of pornographic websites while logged into the University computer. Appellant printed several pornographic images using the printers in the Shepardson Computer Hall. Appellant printed thirty-three images while using the University computer. Appellant printed thirty of the images on a color printer that required the user to log in to a print kiosk and confirm each document to be printed. The other three pictures were sent to black and white printers that did not require the user to confirm each document to be printed. These black and white printers would queue print tasks from multiple users in the computer lab, and would continually print while there were documents in the queue. It was common for users to have to sort through a stack of printed material to retrieve their documents. When Appellant printed the pornographic images to the black and white printer, they were intermingled with other users’ documents in the stack of printed material. As these other users would sort through the stack to retrieve their documents, they reviewed Appellant’s pornographic pictures.
The People initially charged Appellant with one count of Harassment, and he entered a plea of not guilty. Prior to trial, the People added two counts: Computer Crime and Promotion of Obscenity. Appellant moved to dismiss the Promotion of Obscenity charge. After a hearing, the county court denied the motion to dismiss, by order dated March 25, 2011. The People dismissed the Computer Crime charge prior to trial. Appellant was tried on the remaining two counts. On April 26, 2011, the jury found Appellant guilty of the Promotion of Obscenity charge, but not guilty of the Harassment charge.
Appellant sought appellate relief in 2011, but that appeal was dismissed as untimely. Appellant then sought post-conviction relief based on his trial counsel’s failure to perfect his appeal. The People conceded that this relief was appropriate and Appellant’s right to pursue a direct appeal was reinstated. This appeal followed.
Appellant now raises the following issue on appeal:
1. Whether the trial court erred in failing to dismiss the charge of promotion of obscenity, as a matter of law, where an item of legal, readily accessible pornography formed the factual basis for the charge?
2. Whether prosecutorial misconduct, in repeatedly misstating the law regarding the obscenity standard, entitles [Appellant] to a new trial?
3. Whether sufficient evidence was presented, as a matter of law, to sustain [Appellant’s] conviction for promotion of obscenity?
People v. Goldsworth, No. 13CV30279, slip op. at 1-3 (Larimer County District Court, Dec. 2, 2013) (ECF No. 25-4, at 1-3).
The Larimer County District Court affirmed the judgment of conviction imposed by the county court. (ECF No. 25-4, at 11). Mr. Goldsworth attempted to file an appeal with the Colorado Court of Appeals, but the appeal was dismissed for lack of jurisdiction because the case was initially appealed from the county court to the district court. People v. Goldsworth, No. 2014CA38, slip op. at 1 (Colo.App. Jan. 10, 2014) (ECF No. 25-8, at 1). On November 17, 2014, the Colorado Supreme Court denied Mr. Goldsworth’s petition for writ of certiorari on direct appeal. (ECF No. 25-6).
Mr. Goldsworth initiated this habeas corpus action on March 2, 2015 by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) (“the Application”). Respondents have filed an Answer to the Application for Writ of Habeas Corpus (ECF No. 25) (“the Answer”). No reply has been filed.
The Court must construe the Application filed by Mr. Goldsworth 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.
In the Application, Mr. Goldsworth asserts three claims for relief. First, Mr. Goldsworth contends that Colorado’s promotion of obscenity statute, Colo. Rev. Stat. § 18-7-102(2), is unconstitutionally overbroad and vague (“Claim 1(a)”). (ECF No. 1, at 12-14). He further asserts, in the alternative, that the statute was unconstitutionally applied to him because there was insufficient evidence that he possessed “the requisite culpable mental state of ‘knowingly’ promoting the material in question” (“Claim 1(b)”). (Id., at 14-18). Mr. Goldsworth next contends that the state courts erred in finding no prosecutorial misconduct when the prosecution repeatedly misstated the “contemporary community standard” (“Claim 2”). (Id., at 19-22). Finally, Mr. Goldsworth asserts that the evidence admitted at trial was insufficient to sustain his conviction because there was no evidence that he promoted obscene material (“Claim 3”). (Id., at 23-25).
Claim 1(b), the as-applied constitutional challenge, and Claim 3, the insufficient evidence challenge, both turn on whether the evidence presented at trial failed to prove that Mr. Goldsworth promoted obscene material with a culpable mental state. Accordingly, the Court will construe these claims together as an attack on the sufficiency of the evidence to sustain Mr. Goldsworth’s conviction for promotion of obscenity. See Agan v. Vaughn, 119 F.3d 1538, 1544 (11th Cir. 1997) (recognizing that habeas petitioner’s as-applied challenge turned on whether there was sufficient evidence of corrupt intent); see also Medlock v. Ward, 200 F.3d 1314, 1321-22 (10th Cir. 2000) (rejecting habeas petitioner’s as-applied challenge to the sentence aggravator because the evidence was sufficient to support the constitutionality of the sentencing court’s application of the sentence aggravator).
Based upon the Court’s careful review of the state court record, and applying the deferential standard of review mandated by the AEDPA, the Court concludes that no reasonable juror could find that the evidence admitted against Mr. Goldsworth at trial established that he was guilty of promotion of obscenity beyond a reasonable doubt, and that the Larimer County District Court’s conclusion to the contrary is an unreasonable application of clearly established Supreme Court precedent. Therefore, the Court finds that Mr. Goldsworth is entitled to a writ of habeas corpus as to Claims 1(b) and 3 in the Application.
II. STANDARD OF REVIEW
The AEDPA 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. Goldsworth 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 Mr. Goldsworth 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 ...