United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
R. BROOKE JACKSON United States District Judge.
Applicant, Cesar Pasillas-Sanchez, has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Docket No. 1) challenging the validity of his criminal conviction in the District Court of Jefferson County, Colorado. Respondents have filed an Answer (Docket No. 19) and Applicant has filed a Reply (Docket No. 23). Having considered the same, along with the state court record, the Court will deny the Application.
On August 4, 2005, Applicant was convicted in Jefferson County District Court Case No. 03CR783 of second-degree murder, two counts of theft by receiving, three counts of possession of a controlled substance, and three special offender counts. (Docket No. 1, at 2, 4; Docket No. 11-1 at 7-10). He was sentenced to an aggregate 96-year prison term with the Colorado Department of Corrections. (Docket No. 1 at 2).
In Applicant’s direct appeal proceeding, the Colorado Court of Appeals summarized the relevant facts as follows:
In March 2003, defendant's girlfriend of three years was found dead as a result of a single gunshot to the head. Defendant called the police and reported that she had shot herself. When police arrived on the scene, they found a handgun under the left hand of the victim, who was right-handed. Police found drugs and drug paraphernalia, as well as numerous items of stolen property, including expensive bicycles and electronics. Defendant was subsequently charged with first degree murder, two counts of theft by receiving, three counts of possession of a controlled substance, and three counts as a special offender.
At trial, defendant's theory was that the victim had committed suicide. The People's theory was that the relationship between defendant and the victim had been deteriorating and defendant had shot her, either to prevent her from leaving him or to keep her quiet about his theft and drug activity. To support that theory, the People presented extensive evidence about the nature and status of the relationship between defendant and the victim, as well as scientific and forensic analysis of the crime scene and gunshot wound to show it was not self-inflicted.
People v. Pasillas-Sanchez, 214 P.3d 520, 523 (Colo.App. 2009) (Pasillas-Sanchez I). Applicant’s conviction was affirmed on direct appeal. (Id.). The Colorado Supreme Court denied Applicant’s petition for certiorari review on August 31, 2009. (Docket No. 11-6).
On January 25, 2010, Applicant filed a motion for reconsideration of his sentence, pursuant to Colo. Crim. P. Rule 35(b), which was denied by the state district court on March 22, 2010. (Docket No. 11-1 at 19-20). Applicant did not appeal the trial court’s order. (Id. at 19).
On November 10, 2010, Applicant filed a motion for post-conviction relief pursuant to Colo. Crim. P. Rule 35(c). (Id. at 19). Following the trial court’s denial of the motion and the counseled supplemental motion, the Colorado Court of Appeals affirmed the trial court’s order in People v. Pasillas-Sanchez, No. 13CA0097 (Colo.App. Dec. 11, 2014) (unpublished) (Pasillas-Sanchez II). (Docket No. 11-10). The Colorado Supreme Court denied Applicant’s petition for certiorari review on June 22, 2015. (Docket No. 11-12).
On July 29, 2015, Applicant filed his federal application under 28 U.S.C. § 2254 raising the following claims:
1. Applicant was denied counsel of his choice when the trial court disqualified defense counsel because he was a potential witness. (Docket No. 1, at 10).
Applicant was denied a fair trial when the trial court declined to require the prosecution to disclose the statements of a defense expert made to the prosecution’s investigator. (Id.).
3. Applicant was denied a fair trial when the trial court denied his challenge for cause to a prospective juror. (Id.).
4. Applicant was denied a fair trial when the trial court denied his motion to sever the theft by receiving counts. (Id.).
5. Applicant’s 96-year sentence is excessive and violated his right to fair sentencing.
6. Applicant’s Sixth Amendment right to the effective assistance of counsel was violated because counsel failed to investigate critical issues. (Id.).
7. Applicant’s Sixth Amendment right to the effective assistance of counsel was violated because counsel failed to consult experts necessary to the defense. (Id.).
8. Applicant’s Sixth Amendment right to the effective assistance of counsel was violated “in pre-trial, trial, and post-trial situations involving competence, deligence [sic] scope of representation, and advising, as well as other deficiencies.” (Id. at 11).
9. Applicant’s Sixth Amendment right to the effective assistance of counsel was violated because counsel “fil[ed] a petition for writ of certiorari that met none of the criteria for consideration governing review on certiorari.” (Id.).
10. Applicant’s Sixth Amendment right to the effective assistance of counsel was violated because counsel denied Applicant access to his discovery materials. (Id.).
In a Pre-Answer Response, Respondents conceded the timeliness of the Application under 28 U.S.C. § 2244(d). (Docket No. 11 at 4-8). Respondents further conceded that Applicant exhausted state court remedies for claims one and eight. (Id. at 11). Respondents argued, however, that claims two, four, five and nine were procedurally barred, and that claims six, seven and ten were unexhausted. (Id.). Respondents further contended that claim three failed to state a cognizable constitutional claim. (Id. at 13-14).
In a December 2, 2015 Order to Dismiss in Part, the Court dismissed claims two, four, five and nine as procedurally defaulted. (Docket No. 18). The Court ordered Respondents to file an Answer addressing the merits of exhausted claims one, three, six, seven, eight and ten. (Id.).
The Court reviews claims one, three, six, seven, eight, and ten below under the AEDPA standard of review.
II. LEGAL STANDARDS
A. 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 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 applicant bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
A claim may be adjudicated on the merits in state court even in the absence of a statement of reasons by the state court for rejecting the claim. Harrington v. Richter, 562 U.S. 86, 98-99 (2011). In particular, determining whether a state court’s decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court’s reasoning. Id. at 98. Thus, “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 99.
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 the applicant seeks to apply a rule of law that was clearly established by the Supreme Court at the time of the relevant state court decision. See Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38, 44 (2011). 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 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 , 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 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. 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. [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, 562 U.S. at 101 (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.
Under this standard, “only the most serious misapplications of Supreme Court precedent will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671; see also Harrington, 562 U.S. at 88 (stating that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable”).
As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
Harrington, 562 U.S. at 102.
“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
The court reviews claims asserting factual errors pursuant to 28 U.S.C. § 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002). Section 2254(d)(2) allows the federal court to grant a writ of habeas corpus only if the relevant state court decision was based on an unreasonable determination of the facts in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the court must presume that the state court's factual determinations are correct and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence. “The standard is demanding but not insatiable . . . [because] ‘[d]eference does not by definition preclude relief.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322');">537 U.S. 322, 340 (2003)).
B. Pro Se Litigant
Applicant is proceeding pro se. The court, therefore, “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). 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 v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Pro se status does not entitle an applicant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
A. Claim One
For his first claim, Applicant contends that he was denied his constitutional right to be represented by counsel of his choice when the trial court disqualified defense counsel because he was a potential witness. (Docket No. 1, at 10).
1. Controlling Federal Law
“[T]he Sixth Amendment guarantees the defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-25 (1989)); see also Luis v. United States, ___ S.Ct. ___, 2016 WL 1228690 at *6 (March 30, 2016) (same).
“[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United States, 486 U.S. 153, 159 (1988) (citing Morris v. Slappy, 461 U.S. 1, 13-14, (1983) and Jones v. Barnes, 463 U.S. 745 (1983)). Because “courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all ...