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Wallin v. Miller

United States District Court, D. Colorado

April 14, 2017

MICHAEL MILLER, Warden of Crowley County Correctional Facility, and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents.


          Marcia S. Krieger United States District Court.

         This 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. Id.

         Pursuant 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.

         I. BACKGROUND

         The Court first revisits the factual background set forth in the July 21, 2015 Opinion and Order Denying Application in this case. ECF No. 42.

         Applicant 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 § 18-3-203(1)(g), C.R.S. 2006; first degree aggravated motor vehicle theft, pursuant to § 18-4-409(2), C.R.S. 2006; theft, pursuant to § 18-4-401, C.R.S. 2006; and, ultimately, a crime of violence, pursuant to § 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 Corrections.

People v. Wallin, No. 04CA1011, 1-3 (Colo.App. July 12, 2007).

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.


         A. Pro Se Standard

         Applicant 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).

         B. 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). 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 (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, ...

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