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Owens v. Zupan

United States District Court, D. Colorado

February 17, 2016

GREGORY OWENS, Applicant,
v.
DAVID ZUPAN, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER DENYING AMENDED APPLICATION FOR WRIT OF HABEAS CORPUS

William J. Martínez 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. 6) (the “Amended Application”) filed pro se by Applicant Gregory Owens. Respondents have filed an Answer to Application Under 28 U.S.C. § 2254 (ECF No. 22) (“the Answer”). Mr. Owens has not filed a traverse despite being given an opportunity to do so. After reviewing the record, including the Amended Application, the Answer, and the state court record, the Court FINDS and CONCLUDES that the Amended Application should be denied and the case dismissed with prejudice.

I. BACKGROUND

Mr. Owens is challenging the validity of his conviction and sentence in Denver District Court case number 06CR7406. The Colorado Court of Appeals on direct appeal described the relevant background for Mr. Owens’ conviction as follows:

I.S. lived in his Denver home with defendant, who was his son, and P.F., who was I.S.’s caretaker. When relatives of I.S. were unable to contact him for several days, one of the relatives called the police and asked them to check on I.S. The relative, who usually spoke with I.S. daily, told police officers she had not spoken with I.S. or seen him in a week and a half. She also told them that she had seen defendant driving I.S.’s car, which was an unusual occurrence given that I.S. did not let others drive his car.
Upon arriving for the welfare check, the officers detected an odor coming from the house consistent with that of a decomposing body. The officers knocked on the doors, but received no response. They tried looking through the windows, but could not see anything. The officers called the relative who had initially requested the welfare check. She told them that a few days earlier, she had gone to visit I.S. but defendant would not let her in. The officers also learned that I.S. was elderly, was confined to a wheelchair, and had health issues. Ten minutes after the responding officers arrived, their sergeant arrived and also detected the decomposition odor. The officers forced entry, and found I.S. dead in the first floor living room area with blankets covering him. Finding no one else, they left and secured the house.
While the officers were waiting outside, they began the process of obtaining a search warrant. A bystander told the sergeant that P.F. also lived in the house and had not been seen or heard from in a week and a half. The officers entered the house again to search for P.F. They found her body, also in a state of decomposition, in a basement storage room. The officers did not have a warrant to enter the house in either instance.
Defendant was arrested later that night. He was charged with two counts of first degree murder after deliberation, and he pleaded not guilty by reason of insanity. Defendant was acquitted of first degree murder after deliberation of I.S., but was found guilty of first degree murder after deliberation of P.F.

People v. Owens, No. 08CA1834, slip op. at 1-2 (Colo.App. May 16, 2013) (unpublished) (ECF No. 11-4 at 3-4). The judgment of conviction was affirmed on direct appeal. See Id. On June 16, 2014, the Colorado Supreme Court denied Mr. Owens’ petition for writ of certiorari on direct appeal. (See ECF No. 11-2.)

On August 11, 2014, and again on August 20, 2014, Mr. Owens filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 11-1 at 8.) On September 23, 2014, the trial court entered an order denying denied the Rule 35(c) motion. (See Id. at 7.) Mr. Owens did not appeal.

On October 27, 2014, Mr. Owens filed in the trial court an amended Rule 35(c) motion. (See id.) On February 27, 2015, the trial court denied the amended Rule 35(c) motion as successive. (See id.) Mr. Owens again did not appeal.

The instant action was commenced on July 2, 2015, and Mr. Owens asserts fifteen claims for relief in the Amended Application. The Court previously entered an Order to Dismiss in Part (ECF No. 19) dismissing claims two through fifteen because those claims are unexhausted and procedurally barred. Therefore, only claim one in the Amended Application remains to be considered on the merits. Mr. Owens contends in claim one that the prosecution’s misstatement of the law during closing arguments regarding the affirmative defense of insanity, and the trial court’s failure to correct it after objection, violated his due process rights to a fair trial and to present a defense.

II. STANDARDS OF REVIEW

The Court must construe the Amended Application liberally because Mr. Owens 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. Owens 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. Owens 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 ...


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