United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS
BROOKE JACKSON United States District Judge
Larry Fuller, 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 Weld County, Colorado.
Respondents have filed an Answer (Docket No. 23). Applicant
did not file a Reply brief by the court-ordered deadline,
after being granted three extensions of time. On January 17,
2017, Applicant filed a Motion for Leave to File [Reply] Out
of Time for Excusable Neglect/Justifiable Excuse (Docket No.
37), along with a tendered Reply (Docket No. 38). The Court
will grant the motion to file out of time. Having considered
the Application, Respondents' Answer, the Applicant's
Reply and the state court record, the Court will deny the
March 11, 2009, Applicant was convicted in Weld County
District Court Case No. 08CR1227 of possession of chemicals
or supplies to manufacture a controlled substance. (Docket
No. 10-2 at 2). He was adjudicated a habitual offender and
sentenced to an aggregate 96-year prison term with the
Colorado Department of Corrections. (Id. at 2,
conviction was affirmed on direct appeal in People v.
Fuller (Fuller I), No. 09-1578 (Colo.App. Nov.
23, 2011) (unpublished). (Docket No. 10-2). The Colorado
Supreme Court denied his petition for certiorari review on
June 18, 2012. (Docket No. 10-8).
subsequently filed a motion for post-conviction relief
pursuant to Colo. Crim. P. Rule 35(c), which was denied by
the state district court on December 24, 2012. (Docket No.
10-1 at 7). The Colorado Court of Appeals affirmed in
People v. Fuller (Fuller II), No. 13-46
(Colo.App. Nov. 26, 2014) (unpublished). (Docket No. 10-3).
Applicant's petition for certiorari review was denied by
the Colorado Supreme Court on August 24, 2015. (Docket No.
April 19, 2016, Applicant filed his federal application under
28 U.S.C. § 2254 raising the following claims:
1. Applicant's Fourth Amendment rights were violated when
the trial court failed to suppress the contents of a suitcase
that was seized illegally. (Docket No. 1 at 4-7).
2. Applicant's Fifth Amendment due process rights were
violated when the prosecution knowingly presented, and the
trial court knowingly allowed the jury to hear, perjured
testimony by a police officer. (Id. at 7-9).
3. There was insufficient evidence to prove beyond a
reasonable doubt that Applicant knew the suitcase contained
chemicals for making methamphetamine. (Id. at 9-11).
4. Applicant's due process rights under Brady v.
Maryland, 373 U.S. 83 (1963), California v.
Trombetta, 467 U.S. 479 (1984), and Arizona v.
Youngblood, 488 U.S. 51 (1988), were violated by the
police's failure to test the suitcase for fingerprints
before having it destroyed. (Id. at 11-17).
5. Applicant's right to an impartial jury under the Sixth
and Fourteenth Amendments was violated by the trial
court's failure to inquire into the prosecutor's
alleged improper and/or ex-parte disclosure of
Applicant's prior convictions to the jury. (Id.
6. Applicant's right to an impartial jury under the Sixth
and Fourteenth Amendments was violated by the trial
court's mailing of letters to jurors, after the defense
sought their contact information, ensuring they knew they
were not required to speak with anyone about their jury
service. (Id. at 19-21).
7. Applicant's right to a jury trial, as interpreted in
Blakely v. Washington, 542 U.S. 296 (2004), was
violated when the trial court, rather than a jury, made the
sentence-enhancing determination that Applicant's
conviction constituted his second conviction for such an
offense. (Id. at 21-24).
8. Applicant's Sixth Amendment right to the effective
assistance of counsel was violated when counsel: (1) failed
to investigate fully all of the charges and evidence against
Applicant; (2) failed to obtain expert testimony on issues
dealing with the chemical make-up and manufacture of
methamphetamines; (3) failed to consult with experts in the
field of the chemical make-up and manufacture of
methamphetamines; (4) relied only on the prosecution's
expert witnesses on matters relating to the chemical make-up
and manufacture of methamphetamines; (5) failed to inform
Applicant that the prosecution had given notice of intent to
file habitual criminal charges, when the prosecution had
stated that no habitual criminal charges would be filed if he
waived his preliminary hearing; (6) failed to request a
postponement of the preliminary hearing to determine if the
prosecutor's actions in coercing and/or inducing
Applicant to waive his preliminary hearing constituted
illegal and/or unethical behavior; (7) failed to argue that
the prosecution had illegally coerced and/or induced
Applicant's waiver of the preliminary hearing; (8) failed
to adequately argue that the evidence used against Applicant
was illegally seized; (9) failed to argue that the
prosecution knew that Applicant's convictions were
obtained through the use of perjured testimony; (10) failed
to argue that the court knew that Applicant's convictions
were obtained through the use of perjured testimony; (11)
failed to adequately argue that the evidence against
Applicant was insufficient to establish his guilt beyond a
reasonable doubt; (12) failed to adequately argue that the
evidence used against Applicant was knowingly and
intentionally destroyed by law enforcement personnel, thereby
depriving him of the use of materially exculpatory evidence
at trial in order to prove his “actual
innocence”; (13) failed to subject the
prosecution's case to meaningful adversarial testing;
(14) failed to use the photos taken from the refurbished
7-Eleven surveillance video to impeach and/or rebut
Baxter's testimony regarding the suitcase; (15) failed to
inform Applicant that the prosecution had violated his right
to an impartial jury trial when it engaged in ex
parte communications with the jury; (16) failed to
adequately argue that the prosecution had violated his right
to an impartial jury trial when it engaged in ex
parte communications with the jury; (17) failed to
inform Applicant that the trial judge violated his right to
an impartial jury trial when he engaged in ex parte
communications with the jury; (18) failed to adequately argue
that the trial judge violated Applicant's right to an
impartial jury trial when he engaged in ex parte
communication(s) with the jury; (19) failed to argue that the
trial judge violated Applicant's right to a jury trial on
the charged Count 3: Possession Of Chemicals Or Supplies to
Manufacture a Controlled Substance - Schedule II by utilizing
facts and evidence not presented to the jury in order to
substantially modify the sentencing range of the charged
count; and, (20) met with Applicant only four times over the
course of one year for a total of two hours.
Pre-Answer Response, Respondents conceded that the
Application is timely under the one-year limitation period
set forth in 28 U.S.C. § 2244(d). (Docket No. 10 at
5-8). Respondents further conceded that Applicant exhausted
state court remedies for claim one. (Id. at 13).
Respondents argued, however, that claim three was unexhausted
and claims two, four, five, six, seven and eight were
procedurally defaulted (Id. at 13-25).
previous Order, the Court dismissed claims two, four, five,
six, and seven as procedurally defaulted. (Docket No. 14).
The Court ordered Respondents to file an Answer addressing
the merits of exhausted claims one and three. The Court
further deferred ruling on the applicability of a procedural
bar to the twenty ineffective-assistance-of-counsel (IAC)
allegations asserted in claim eight, under Martinez v.
Ryan, __ U.S. __, 132 S.Ct. 1309 (2012), pending receipt
of the state court record and Respondents' argument in
the Answer as to whether any of the IAC allegations have
substantial merit. (Id.).
Court addresses claims one, three and eight below.
APPLICABLE LEGAL STANDARDS
28 U.S.C. ' 2254
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
(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;
(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).
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.
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
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
House, 527 F.3d at 1018.
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]
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]
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.
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,
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 Â§
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, 340 (2003)).
Pro Se Litigant
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).
ANALYSIS OF CLAIMS
first claim, Applicant asserts that his Fourth Amendment
rights were violated when the trial court failed to suppress
the contents of a suitcase that was seized illegally. (Docket
No. 1 at 4-7).
controlling federal law
Fourth Amendment protects against unreasonable search and
seizure and is generally enforced through the exclusionary
rule. See, e.g., Illinois v. Gates, 462 U.S. 213,
254 (1983); Stone v. Powell, 428 U.S. 465, 482-87
(1976). In Stone, the Supreme Court limited federal
habeas review for alleged Fourth Amendment violations based
on the Court's determination that any additional
contribution gained from consideration of search-and-seizure
claims of state prisoners on collateral review is small in
relation to the associated costs. 428 U.S. at 493-94. The
Court held that “where the State has provided an
opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted federal
habeas corpus relief on the ground that evidence obtained in
an unconstitutional search or seizure was introduced at his
trial.” Stone, 428 U.S. at 494.
Supreme Court has not defined precisely the phrase
“opportunity for full and fair litigation.”
See Gamble v. State of Oklahoma, 583 F.2d 1161, 1164
(10th Cir. 1978). In Gamble, the Tenth Circuit
determined that the phrase:
includes, but is not limited to, the procedural opportunity
to raise or otherwise present a Fourth Amendment claim. It
also includes the full and fair evidentiary hearing
contemplated by Townsend [v. Sain, 372 U.S.
293 (1963)]. Furthermore, it contemplates recognition and at
least colorable application of the correct Fourth Amendment
Id. at 1165. “Thus, a federal court is not
precluded from considering Fourth Amendment claims in habeas
corpus proceedings where the state court willfully refuses to
apply the correct and controlling constitutional
state court proceedings
filed a motion to suppress the contents of a suitcase
searched by the police outside of a 7-Eleven store. (State
Court R., Court File, at 66; see also 12/5/08 and
12/9/08 Hrg. Trans.). Following an evidentiary hearing, the
trial court denied the motion, reasoning that the evidence
seized was in the officer's plain view. (State Court R.,
Court File at 138-39).
counsel subsequently filed a Motion to Reopen the Motions
[Suppression] Hearing Based on New Evidence. (State Court R.,
Court File at 150). In the motion, counsel argued that
footage of the surveillance video taken at the 7-Eleven
“shows evidence that directly contradicts Officer
Baxter's testimony at the motions hearing . . . in
regards to the search conducted of the suitcase.”
(Id. at 150). Specifically, counsel argued:
During the motions hearing on December 9, 2008 a surveillance
video was admitted into evidence for consideration in regards
to outstanding motions. This video was a high speed copy and
hard to view clearly. Counsel indicated at the end of the
motions hearing and at pretrial readiness on February 17,
2009 a normal speed video was being obtained and may be
relevant to the motions issues. On February 25, 2009 a normal
speed copy of the video was provided to the office of defense
counsel. Counsel did not received the video until February
26, 2009. A stipulated copy of the normal speed copy of the
video is attached.
Footage of the video at normal speed shows evidence that
directly contradicts Officer Baxter's testimony at the
motions hearing. Specifically in regards to the search
conducted of the suitcase.
The video clearly shows the suitcase is zipped when it is
placed outside of the store, prior to Officer Baxter
searching the suitcase. No one is shown unzipping the
suitcase on the video. It also shows Officer Baxter putting
on gloves prior to approaching the suitcase, further the
video seems to show Officer Baxter touching and/or moving the
suitcase. The video does not seem to show Officer Baxter
coughing after being near the suitcase. The video does ...