United States District Court, D. Colorado
OLOYEA D. WALLIN, a.k.a. DONALD OLOYEA WALLIN, a.k.a. OLOYEA WALLIN, Applicant,
MICHAEL MILLER, Warden of Crowley County Correctional Facility, and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents.
OPINION AND ORDER DENYING APPLICATION FOR WRIT OF
HABEAS CORPUS PURSUANT TO 28 U.S.C. Â§ 2254
S. Krieger United States District Court.
matter is before the Court on three claims remanded to this
Court for further review. The United States Court of Appeals
for the Tenth Circuit reversed “the application of
procedural default to the habeas claims involving (1) use of
the victim's confidential medical information, (2) use of
the victim's involuntary statements, [and] (3) abuse of
subpoena power.” See Wallin v. Miller, et al.,
No. 15-1301, 8-9 (10th Cir. Aug. 18, 2016). The Tenth Circuit
determined that the Colorado Court of Appeals (CCA) had
declined to consider these claims because they had already
been rejected in earlier proceedings and not because
Applicant had failed to present the claims. Id. at
8. The Tenth Circuit concluded that the CCA's rationale
did not preclude a federal court from considering the claims.
to this Court's Order on Remand, Respondents filed an
Answer, on November 16, 2016, addressing the merits of the
three remanded claims, and Applicant filed a Reply to Answer
on January 13, 2017. After reviewing the Application, ECF No.
1, the November 16, 2016 Answer, ECF No. 57, the January 13,
2017 Reply, ECF No. 61, and the state court record, ECF No.
40, the Court FINDS and CONCLUDES that the three claims
should be denied and the case dismissed with prejudice.
Court first revisits the factual background set forth in the
July 21, 2015 Opinion and Order Denying Application in this
case. ECF No. 42.
is challenging the validity of his conviction and sentence in
Arapahoe County District Court case number 03CR2296. The
factual background of Applicant's crimes and convictions
is summarized in the [CCA's] opinion addressing his
direct appeal as follows:
When defendant was released on parole in July 2003, I.M., his
ex-wife picked him up from prison and drove him to her
apartment. Defendant was upset because I.M. had given birth
to another man's child while he was in prison. As I.M.
reported events to the police, defendant took sixty dollars
from her purse; beat her in the face and body with his fists,
fracturing a bone next to her eye; and then left the
apartment, driving off in her car.
The same day, defendant met with his parole officer and
mentioned that he might have to take legal action against a
girlfriend who was saying bad things about him. A few minutes
after defendant left the parole officer, the police contacted
the parole officer about the incident at the apartment.
Within the next couple of days, the parole officer directed
defendant to go to the police department and speak with a
particular police officer. However, defendant did not go to
the police department, but rather left a taped telephone
message for the police officer. Defendant was later arrested
at his home.
Defendant was charged by information with second degree
assault, pursuant to Â§ 18-3-203(1)(g), C.R.S. 2006; first
degree aggravated motor vehicle theft, pursuant to Â§
18-4-409(2), C.R.S. 2006; theft, pursuant to Â§ 18-4-401,
C.R.S. 2006; and, ultimately, a crime of violence, pursuant
to Â§ 18-1.3-406(2)(a)(I)(B), C.R.S. 2006. A parole revocation
complaint was filed effective the same day, and later,
defendant's parole was revoked.
Soon after the charges were filed in this case, I.M. recanted
all her allegations and filed a declaration with the court,
stating that defendant did not hit her or steal her money or
her car, that she was on morphine for a head injury when
police officers spoke to her at the hospital, and that they
''coerced" her to blame defendant for her
injuries. The prosecution endorsed an expert witness to
testify at trial about domestic violence.
Defendant moved to suppress his taped message to the police
as involuntary and to exclude the testimony of the
prosecution's designated expert witness on domestic
violence as irrelevant and unfairly prejudicial. The trial
court denied both motions.
I.M. did not appear for defendant's trial, and a warrant
issued for her. She was arrested and jailed overnight, and
then she testified that defendant had assaulted her, but did
not steal money from her purse or steal her car. The
prosecution's expert witness testified generally
concerning why victims of domestic violence recant at trial.
The People dismissed the theft charge, and the jury found
defendant guilty of second degree assault and not guilty of
motor vehicle theft.
At defendant's request, his trial counsel moved to
withdraw before sentencing. The trial court declined
defendant's request to appoint alternate defense counsel,
and defendant appeared pro se at the sentencing hearing. The
court sentenced him to fourteen years in the Department of
People v. Wallin, No. 04CA1011, 1-3 (Colo.App. July
The judgment of conviction was affirmed on direct appeal but
remanded for resentencing, id, at 17-18, which
Applicant subsequently appealed, but dismissed, and then
finally proceeded with a motion to recuse and a Colo. R.
Crim. P. 35(c) motion. The recusal and Rule 35(c) motions
were denied, Applicant appealed the denial, and the CCA
denied the motions on appeal. People v. Wallin, No.
11CA0972 (Colo.App. Dec. 6, 2012). The CCA denied the motion
to recuse for failure to demonstrate bias and the Rule 35(c)
motion as successive. Id. The Colorado Supreme Court
[(CSC)] denied Applicant's petition for writ of
certiorari on June 16, 2014, in the collateral proceedings.
See People v. Wallin, 2013SC739 (Colo. June 16,
2014). This Application was filed on July 15, 2014.
ECF No. 42 at 1-3.
STANDARDS OF REVIEW
Pro Se Standard
is proceeding pro se. The Court, therefore, reviews
the Application liberally and holds the pleading “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). An applicant's pro se status does not
entitle him to an application of different rules. See
Montoya v. Chao, 296 F.3d 952, 958 (10th Cir. 2002).
28 U.S.C. Â§ 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). Applicant bears the burden of proof
under Â§ 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 (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. (collecting cases). 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. ''Where there has been one reasoned state
judgment rejecting a federal claim, ...