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Fuller v. Warden, Arkansas Valley Correctional Facility

United States District Court, D. Colorado

January 18, 2017

LARRY FULLER, Applicant,
v.
WARDEN, Arkansas Valley Correctional Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

          ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

          R. BROOKE JACKSON United States District Judge

         Applicant, 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 Application.

         I. BACKGROUND

         On 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, 13-14).

         Applicant's 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 Nov. 23, 2011) (unpublished).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).

         Applicant 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 Nov. 26, 2014) (unpublished).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. 10-13).

         On 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. at 17-19).
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.

         In the 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).

         In a 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.).

         The Court addresses claims one, three and eight below.

         II. APPLICABLE 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).

         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 [665], 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, 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).

         III. ANALYSIS OF CLAIMS

         A. Claim One

         For his 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).

         1. controlling federal law

         The 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.

         The 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 constitutional standards.

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 standards.” Id.

         2. state court proceedings

         Applicant 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).

         Defense 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 ...

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