United States District Court, D. Colorado
TERENCE J. HANKINS, Applicant,
KEVIN MILYARD, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.
This matter is before the Court on Applicant Terence J. Hankins’ Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“Application”) (ECF No. 6). Respondents filed an Answer (ECF No. 22) on October 31, 2011. Applicant filed a Reply (ECF No. 24) on November 9, 2011. After reviewing the pertinent portions of the record in this case including the Application, the Answer, the Reply, and the state court record (ECF Nos. 23 and 73), the Court concludes that the Application should be denied.
In the prosecution’s interlocutory appeal, the Colorado Supreme Court (CSC) summarized the underlying facts of this case as follows:
On August 24, 2007, seventy-year-old Hankins sat staring out from a police car window at a mound of soil on the far edge of his mining claim near Craig, Colorado, where he had voluntarily led two investigators whom he had invited to his home that morning. He pointed and said, “She's under that pile of dirt.” Hankins was referring to his wife Cynthia, who had disappeared several months earlier.
Shortly after Hankins revealed the location of his wife’s body, one of the investigators asked, “Terry, tell us while we're here right now, what happened that night?” Hankins then described how he had murdered his wife Cynthia by strangling her, hitting her over the head with a crowbar, and then meticulously carving her body into quarters in their bathtub, “like butchering a deer, ” he said, so he could more easily transport her remains. He then buried her body parts and all her belongings under the pile of dirt. Thinking that no court of law would believe his claim of self defense, Hankins vacated their apartment and told friends that his wife had run off with another man.
Hankins made this statement in the investigator’s car at the burial site and on the drive back to his home. The investigators treated him politely and maintained an inquisitive, respectful tone. Several times during and after the approximately fifteen-minute confession, investigators told Hankins, “You're free to go at any time . . . you don’t have to tell us any more . . . you’re still free to go.” On arriving at Hankins’ home, the investigators advised Hankins of his Miranda rights, which he waived. Inside, the investigators asked Hankins to again describe “from A to Z” what happened. Now Mirandized, Hankins walked through the details of the events leading up to the murder, the murder itself, and what happened since.
The investigators then transported Hankins to police headquarters where they again read him his Miranda rights. He signed a waiver and then gave his third confession of the day, this time captured on video inside a police interrogation room. The following day, Hankins gave additional statements, once again preceded by a full advisement of his Miranda rights, which he again waived.
In the months leading up to his initial murder confession, Hankins and the local police grew familiar with each other. The police spoke with Hankins several times, served search warrants on his home, and confiscated some of his property over the course of the summer of 2007. Throughout these events, Hankins maintained he was not involved in his wife’s disappearance, and the police did not arrest Hankins. Before his initial confession, investigators did have evidence linking Hankins to check forgeries and illegal narcotics.
On the day Hankins confessed to the murder, Investigators Joe DeAngelo and Jen Kenney arrived at Hankins’ home, where they spent about an hour discussing Hankins’ involvement in fraud and drugs. The investigators then turned the discussion towards Cynthia’s disappearance. The investigators DeAngelo and Kenney emphasized they were only seeking the truth and stated that Cynthia’s children deserved to have their mother buried properly. In response, Hankins agreed to show them where he had hidden Cynthia's body. Investigators commended him for allowing Cynthia to now have a “good Christian burial.” Hankins initially offered to drive the investigators to the burial site in his van. When the investigators opted to drive in a police vehicle, Hankins drove with them providing directions and carrying on a conversation in a relaxed tone. At times, Hankins and the investigators joked about matters unrelated to the case.
Following the identification of the burial site and Hankins’ confessions, the Moffatt [sic] County District Attorney filed nine charges against Hankins: first degree murder; abuse of a corpse; three counts of theft; three counts of forgery; and one count of possession of oxycodone.
See People v. Hankins, 201 P.3d 1215, 1216-17 (Colo. 2009).
Mr. Hankins was convicted by a jury in the Moffat County District Court of first degree murder after deliberation and abuse of a corpse. On August 26, 2009, the trial court sentenced Mr. Hankins to a term of life without possibility of parole in the custody of the Colorado Department of Corrections. State Register, No. 2007CR159, ECF No. 10-1 at 5. Mr. Hankins filed a notice of appeal to the Colorado Court of Appeals (CCA)on October 15, 2009, Id. at 14, which was pending at the time this case was initiated.
II. FEDERAL COURT PROCEEDINGS
Mr. Hankins initiated this action by submitting an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 to this Court on April 25, 2011. Magistrate Judge Boyd N. Boland reviewed the Application, determined that Mr. Hankins’ claims more properly were raised under 28 U.S.C. § 2254, and instructed him to file his claims on a Court-approved form used in filing § 2254 actions. Mr. Hankins filed an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 on June 22, 2011.
Liberally construing the Amended Application, the Court found that Mr. Hankins asserted the following claims:
1. His confession was coerced by the police;
2. He received ineffective assistance of counsel because: (a) no attorney was present during the police interrogation; (b) trial counsel was ineffective for failing to file an appeal of the CSC’s order on an interlocutory appeal; and (c) appellate counsel is ineffective due to her delay in filing the opening brief on appeal;
3. His trial was unfair because police orchestrated a bomb scare on the first day of trial to publicize his past;
4. No Miranda warnings were given during the execution of the July 7, 2007 search warrant and while Mr. Hankins was under the control (equivalent of arrest) of Deputy Sheriff Gary Nichols;
5. Police filed a false report against Mr. Hankins concerning a civil matter;
6. Police obtained Mr. Hankins’ confession in violation of Missouri v. Seibert, 542 U.S. 600 (2004), when they obtained multiple confessions before Mirandizing him on August 24, 2007;
7. (a) Mr. Hankins was subjected to false imprisonment on the first degree murder charge because the murder was committed in self defense; and (b) improper testimony admitted during trial violated Mr. Hankin’s due process rights;
8. The trial court erred in denying the motion for a change of venue filed by defense;
9. Mr. Hankins’ confession was coerced, based on the same grounds asserted in Claim One; and
10. Police failed to protect Mr. Hankins from elder abuse perpetrated by the murder victim.
ECF No. 6. at 5-6 and 8-9.
The Court conducted a preliminary review of the ten claims and dismissed all but Claim Six and part of Claim Four. Id. at 5. The Court found that the remaining claims, except for Claims Five and Ten, were unexhausted. Claims Five and Ten were dismissed as not cognizable in a federal habeas action. In response to the Court’s September 13, 2011 Order to Show Cause why the action should not be dismissed as a mixed petition, Applicant responded and stated that he “withdraws all unexhausted constitutional claims and relies on the Court’s consideration of the inadmissibility of confessions and grave evidence.” ECF No. 16 at 2. The remaining claims, therefore, are as follows:
1) No Miranda warning was given prior to being placed in the control of Deputy Sheriff Nichols on July 7, 2007; and
(2) Police obtained a confession in violation of Missouri v. Seibert, 542 U.S. 600 (2004), when they obtained multiple confessions before Mirandizing Mr. Hankins on August 24, 2007.
On October 31, 2011, Respondents filed an Answer to the Amended Application in addition to a portion of the state court record. In the Answer, Respondents explained that the complete state court record in Applicant’s criminal case was unavailable because Applicant’s direct appeal was pending in the CCA. The Court determined the entire record was necessary to fully address the two claims that remain and ordered the case to be held in abeyance until Mr. Hankins’ direct appeal is concluded and the record is available.
The unavailable portion of the state court record was provided to the Court on January 4, 2016.
III. LEGAL STANDARDS
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).
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 Applicant 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) (citation omitted). If there is no clearly established federal law, that is the end of the Court’s 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, 120 S.Ct. 1495). “The word ‘contrary’ is commonly understood to mean ‘diametrically different, ’ ‘opposite in character or nature, ’ or ‘mutually opposed.’ ” Williams, 529 U.S. at 405, 120 S.Ct. 1495) (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.
Harrington v. Richter, 562 U.S. 86, 101 (2011) (citations and internal quotation marks 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 ...