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Brown v. Lengerich

United States District Court, D. Colorado

January 22, 2016

DIRK BROWN, Applicant,
JASON LENGERICH, BVCC Warden, and CYNTHIA COFFMAN, Attorney General of the State of Colorado, Respondents. No.



Applicant, Dirk Brown, a state prisoner in the custody of the Colorado Department of Corrections, is currently incarcerated at the Buena Vista Correctional Complex-Main & Boot Camp (BVCC) of the Colorado State Penitentiary in Buena Vista, Colorado. He is serving sentences for judgments of conviction imposed by the Arapahoe County District Court in Case No. 10CR131.

On August 13, 2015, Applicant filed a pro se application for habeas corpus relief under 28 U.S.C. § 2254 raising the following claims:

1. “Sheridan Police Dept. (SPD) Det. Kristine Denise Bryant’s Vigilante Method Used To Wrongfully Convict Petitioner.”
2. “Colo. Bureau Of Investigation (CBI) Agent’s Destruction Of Evid., Negligent Testing Methods & Suppression Thereof.”
3. “Defective Warrant (Lack of Court Subject Matter Jurisdiction).” Docket No. 1.

Respondents have filed a Pre-Answer Response [Docket No. 9] and an Answer on the Merits [Docket No. 27]. Applicant has not filed any replies.

The Court must construe the Application liberally because Applicant is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court does not “assume the role of advocate for the pro se litigant.” See Hall, 935 F.2d at 1110. For the reasons stated below, the Court finds that Mr. Brown is not entitled to habeas relief.


On direct appeal of Applicant’s conviction, the Colorado Court of Appeals described the relevant factual background as follows:

A jury convicted defendant, Dirkin Brown, of second degree kidnapping, three counts of aggravated robbery, conspiracy to commit aggravated robbery, and theft for robbing a pawn shop. The court also convicted Brown of being a habitual criminal and sentenced him to 256 years in the Department of Corrections. Brown appeals his convictions and sentence. We affirm and remand for correction of the mittimus.
At trial, the main question the jury had to decide was whether smears of Brown’s blood found at the pawn shop proved that Brown was one of the two robbers. The jury heard the following facts surrounding how the blood was found.
One morning, when the pawn shop opened, two robbers walked in. They were both wearing disguises and carrying guns. One robber walked up to two employees and a customer, put his gun on the counter, and said, “[y]ou’re being robbed.” He took their personal possessions and held them at gunpoint. He also counted time out loud.
The other robber went to the glass display case that contained the high-end jewelry. He smashed the case with a crow bar and shoved more than $27, 000 worth of jewelry into a duffel bag. Then, he took a detergent bottle out of the duffel bag, poured detergent on the case, and dropped the bottle on the floor.
The robbers then fled, less than three minutes after entering the shop.
Because the two employees had managed to press panic buttons during the robbery, police arrived minutes later.
The employees and customer all generally described the robbers as black men who were approximately six feet tall, but could not describe any other identifying characteristics because of the disguises.
One of the first police detectives on the scene also saw the detergent bottle and noticed that there were bright red smears on the handle that looked like fresh blood.
When a crime lab employee arrived more than an hour later, he photographed the bottle. By then, the smears were dry. (The crime lab employee did not find any other blood at the scene.)
The crime lab tested the smears. Two of them tested positive for blood, but a third smear did not test positive for blood.
DNA testing on the blood revealed a presumptive DNA match to Brown, and that match was confirmed by getting a DNA sample from Brown.
At trial, the DNA from the smears was the only evidence directly linking Brown to the robbery. (No fingerprints or other DNA was recovered that identified any other suspects matching the description of the robbers.)
Brown’s theory of the case was that the blood was not fresh and thus did not prove that he was one of the robbers; rather, he argued that he had washed his clothes at a public laundromat several months prior to the robbery and that the robbers could have taken the bottle from the laundromat.
On appeal, Brown contends that (1) the charges should be dismissed because the detective’s testimony that the blood appeared fresh is insufficient to support the conviction because it is incredible as a matter of law, and (2) the trial court abused its discretion by denying the Brown’s pro se motion for a new trial.
Brown also requests that a reference to sexual assault on the mittimus be stricken.

Docket No. 9-2, pp. 2-4.

Applicant filed a direct appeal. Docket No. 9-3 (opening brief). On June 4, 2014, the Colorado Court of Appeals affirmed. Docket No. 9-2 (People v. Brown, No. 12CA0181 (Colo. Ct. App. June 4, 2014) (not published)). On January 12, 2015, the Colorado Supreme Court denied certiorari review. Docket No. 9-6.


In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a superstate appellate court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984). “When a federal district court reviews a state prisoner’s habeas [application] pursuant to 28 U.S.C. § 2254 it must decide whether the [applicant] is ‘in custody in violation of the Constitution or laws or treaties of the United States.’ The court does not review a judgment, but the lawfulness of the [applicant’s] custody simpliciter.” Coleman v. Thompson, 501 U.S. 722, 730 (1991). See also Davis v. Ayala, --- U.S. ----, 135 S.Ct. 2187, 2202 (2015) (“The role of a federal habeas court is to guard against extreme malfunctions in the state criminal justice systems, not to apply de novo review of factual findings and to substitute its own opinions for the determination made on the scene by the trial judge.”) (internal quotations and citations omitted).

Specifically, the Habeas Corpus Statute, 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 ...

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