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Sayed v. Trani

United States District Court, D. Colorado

February 21, 2017

HAZHAR A. SAYED, Applicant,


          R. BROOKE JACKSON United States District Judge.

         Applicant, Hazhar A. Sayed, 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 conviction in case number 05CR70 in the District Court of Broomfield County, Colorado. Respondents have filed an Answer (Docket No. 46) and Applicant has filed a Traverse to Respondents' Merits Response (Docket No. 57). Applicant also filed a Motion to Alter/Amend Judgment of September 13, 2016 Dismissing Claim Three (Docket No. 37) and Respondents filed a Response (Docket No. 56).

         The Court has determined that it can resolve the Application without a hearing. 28 U.S.C. § 2243; see also Jeter v. Keohane, 739 F.2d 257 n.1 (7th Cir. 1984) ("An evidentiary hearing is not necessary when the facts essential to consideration of the constitutional issue are already before the court."). Upon careful review of the record, including the Application, the Answer, the Traverse, and the state court record, the Court concludes that the Application should be denied and the case dism issed.

         I. BACKGROUND

         The Colorado Court of Appeals described the relevant factual and procedural history as follows:

Defendant was charged with sexual assault and second degree kidnapping. In the first trial, the jury was unable to reach a unanimous verdict on either charged offense but found him guilty of the lesser non-included offense of unlawful sexual contact. At the second trial, defendant was found guilty of sexual assault but was acquitted of second degree kidnapping. The trial court merged the sexual assault and unlawful sexual contact convictions and sentenced defendant to twenty-four years in the Department of Corrections custody. He appealed and a division of this court affirmed his sentence. See People v. Sayed, (Colo.App. No. 06CA2267, April 26, 2007) (not published pursuant to C.A.R. 35(f)).
Subsequently, defendant filed a pro se Crim. P. 35(c) motion, which was later amended by counsel, arguing that he received ineffective assistance of trial and appellate counsel and that he was entitled to a new trial based on newly discovered evidence. The postconviction court summarily denied the motion.

(Docket No. 1 at 20).

         The Colorado Court of Appeals affirmed on October 8, 2015. (Id.). On April 18, 2016, the Colorado Supreme Court denied Applicant's petition for writ of certiorari in the postconviction proceedings. (Docket No. 19-8).

         Applicant initiated this action on April 25, 2016 by filing the § 2254 Application and asserting the following three claims for relief:

1. Ineffective assistance of counsel where trial counsel failed to move for a judgment of acquittal on the sexual assault charge at Mr. Sayed's second trial based on (a) his previous conviction of a lesser-included offense of unlawful sexual contact at his first trial (“Claim 1(a)”); and (b) insufficient evidence (“Claim 1(b)”);
2. Ineffective assistance of counsel where appellate counsel failed to present a double jeopardy argument based on Claim 1(a) on direct appeal (“Claim 2”); and
3. Failure to grant a new trial on newly discovered evidence based on a recantation by a witness (“Claim 3”).

(Docket No. 1 at 5-8).

         In the Pre-Answer Response, Respondents concede that the action is timely under the one-year limitation period in 28 U.S.C. § 2244(d), and that Claim 1(a) is exhausted. (See Docket No. 19 at 5-9, 12-13). Respondents, however, argued that Claims 1(b) and 2 are unexhausted and procedurally defaulted. (Id. at 13-16). Respondents also argued that Claim 3 is not a cognizable claim for relief in this action. (Id. at 3-5).

         On September 13, 2016, the Court entered an Order to Dismiss in Part and for Answer and dismissed Claim 3 for failure to state a cognizable claim for federal habeas corpus relief. (Docket No. 32). The Court ordered Respondents to file an Answer addressing the merits of exhausted Claims 1(a), 1(b), and 2. (Id.).


         A. 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).

         B. 28 U.S.C. § 2254

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), § 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 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 ...

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