United States District Court, D. Colorado
HAZHAR A. SAYED, Applicant,
TRAVIS TRANI, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER ON APPLICATION FOR WRIT OF HABEAS
BROOKE JACKSON United States District Judge.
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).
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.
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
(Docket No. 1 at 20).
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).
initiated this action on April 25, 2016 by filing the §
2254 Application and asserting the following three claims for
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
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).
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).
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.).
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).
28 U.S.C. § 2254
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;
(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).
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.
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.
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 ...