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Bruce v. Clementi

United States District Court, D. Colorado

June 26, 2017

DOUGLAS EDWARD BRUCE, Petitioner,
v.
MARIANNE CLEMENTI, Probation Officer, STATE OF COLORADO, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. No.

          ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

          Robert E. Blackburn United States District Judge.

         This matter is before me on the pro se Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) [#13][1] and Petitioner's Amended Section 2254 Petition and Attachments (Supplement) [#14] filed on October 7, 2015, by petitioner Douglas Bruce. The respondents filed an answer [#33]. The petitioner did not respond to the answer.

         After reviewing the pertinent portions of the record in this case, including the Petition, the Supplement, the answer, and the state court record [#34], I conclude that the Petition and Supplement should be denied and this action dismissed.

         I. Background

         Petitioner is challenging the validity of his conviction and sentence in Denver County District Court case number 11CR10091 The factual background of petitioner's crimes and conviction is summarized in the Colorado Court of Appeals' (CCA's) direct appeal opinion as follows:

         In 2001, Bruce established Active Citizens Together (ACT), a Colorado nonprofit corporation that he controlled.

In April 2006, Bruce filed his Colorado individual income tax return for the 2005 tax year. The return showed no taxable income, despite the fact that Bruce had earned wages of nearly $40, 000, and he requested a refund of $1670. One month later, the Colorado Department of Revenue (the Department) sent Bruce a letter informing him that his return had been selected for examination and requesting that he submit documentation substantiating the figures on his return within thirty-one days.
Bruce did not immediately respond to the Department's letter, and he did not file Colorado individual income tax returns for the 2006 and 2007 tax years.
In April 2009, Bruce responded to the Department's May 2006 request for documentation. Bruce informed the Department that despite receiving a salary, he had no taxable income in 2005 because he had donated more than the amount of his salary to ACT.
Upon review of Bruce's documentation and further Case investigation, the Department discovered numerous discrepancies, including the following:
Bruce deposited almost $2, 000, 000 into ACT's account, which apparently accrued substantial interest, but neither Bruce's nor ACT's tax returns reported such interest. In a conversation with a Department investigator, Bruce characterized a large deposit from him to ACT as a loan.
Bruce used ACT funds for personal purposes.
ACT engaged in substantial lobbying activities, contrary to its tax exempt nonprofit status.
Based on its review and investigation, the Department determined that Bruce's 2005 tax return was materially false because it did not include all of Bruce's income.
Subsequently, a grand jury indicted Bruce for (1) tax evasion; (2) filing a false tax return; (3) attempting to influence a public servant, based on Bruce's April 2009 response to the Department's May 2006 inquiry; and (4) failing to file a tax return or to pay tax. The case proceeded to a jury trial, and the jury convicted Bruce as charged.

[#9-8 at 2-3].

         Petitioner initiated this action on August 3, 2015. I conducted a preliminary review and dismissed all claims as procedurally barred from federal habeas review, except for Claims Twenty, Twenty-Eight, Thirty, Thirty-One, Thirty-Two, and Thirty-Three. [#31]. The claims for relief that remain are

(20) Trial court openly sided against Petitioner during the trial by making derogatory remarks about Petitioner's witnesses;[2]
(28) Criminal charges are arbitrary and capricious when a civil resolution is available for the same action;
(30) Prosecution improperly informed the jury about a pretrial motion Petitioner filed regarding the statute of limitations on felony prosecutions;
(31) “The AG engaged in scurrilous personal attacks on petitioner throughout the trial to inflame juror passions” by stating Petitioner is notorious, a charlatan, outrageous, a diatribe, and infamous;
(32) Trial court denied Petitioner's presentation of character evidence from two Colorado congressmen; and
(33) Trial court denied Petitioner's redirect of his own testimony.

         II. Analysis

         A. Standard of Review

         I must construe the Petition and Supplement liberally because the petitioner is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I cannot act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

         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).

         I review 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 pursuant to § 2254(d)(1) is whether the petitioner seeks to apply a rule of law that was clearly established by the Supreme Court of the United States at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). The''review under ' 2254(d) is limited to the record that was before the state court that adjudicated the prisoner's claim on the merits.''Cullen v. Pinholster, 563 U.S. 170, 181 (2011). ''Finality occurs when direct state appeals have been exhausted and a petition for writ of certiorari from this Court has become time barred or has been disposed of.'' Greene v. Fisher, 565 U.S. 34, 39 (2011) (citing Griffith v. Kentucky, 479 U.S. 314, 321, n. 6 (1987).

         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.'' Williams, 529 U.S. 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 my inquiry pursuant to ' 2254(d)(1). See Id. at 1018. If a clearly established rule of federal law is implicated, I 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. Carter [v. Ward], 347 F.3d. [860, ] 864 [10th Cir. 2003] (quoting Valdez [v. Ward], 219 F.3d [1222] 1229-30 [10th Cir. 2000]).

House, 527 F.3d at 1018.

         My inquiry pursuant to the ''unreasonable application'' clause is an objective one. 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 (internal quotation marks omitted). 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 v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and citation omitted). I ''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. at 102. ''[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.'' Id. (citation omitted). ''Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.'' Id. at 102-03 (internal quotation marks and citation omitted).

         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. Furthermore,

[a]s a condition for obtaining habeas corpus relief 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.

Richter, 562 U.S. at 103.

         I review claims of 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 a court to grant a writ of habeas corpus only if the state court decision was based on an unreasonable determination of the facts in light of the evidence presented. Pursuant to ' 2254(e)(1), I must presume that the state court's factual determinations are correct, see Sumner v. Mata, 455 U.S. 591, 592-93 (1982), and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence, see Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997). ''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)).

         A claim, however, 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. Richter, 562 U.S. at 98 (''[D]etermining 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''). Further, ''[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.

         In other words, I ''owe deference to the state court's result, even if its reasoning is not expressly stated.'' Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, I ''must uphold the state court's summary decision unless [my] independent review of the record and pertinent federal law persuades [me] that [the] result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented.'' Id. at 1178. ''[T]his independent review should be distinguished from a full de novo review of the petitioner's claims.'' Id. (internal quotation marks and citation omitted). Likewise, I apply the AEDPA deferential standard of review when a state court adjudicates a federal issue relying solely on a state standard that is at least as favorable to the petitioner as the federal standard. See Harris v. Poppell, 411 F.3d 1189, 1196 (10th Cir. 2005). If a claim was not adjudicated on the merits in state court, and if the claim also is not procedurally barred, I must review the claim de novo and the deferential standards of ' 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).

         B. Merits of Claims

         1. Claim Twenty

         Petitioner asserts that the trial judge announced in front of the jury that the petitioner's witnesses, two of which were sitting members of Congress, would not be allowed to testify because their testimony would be “cumulative” and of “little value.” [#14 at 13]. Petitioner further asserts that he has a right to call witnesses under the Sixth and Fourteenth Amendments. [Id.] He also contends that when a judge makes derogatory remarks about defense witnesses in front of a jury the jury is rendered partial. [Id.]

         I will address the issue of cumulative evidence when resolving Claim Thirty-Two. The derogatory remark claim is discussed below and is dismissed for the following reasons.

         I find, having now had the opportunity to examine the trial transcripts, that the derogatory remark claim has not been exhausted. Nonetheless, “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” See 28 U.S.C. § 2254(b)(2). Given this discretion, I will discuss the merits of this claim below.

         To the extent petitioner's derogatory remark claim is asserted pursuant to the Fourteenth Amendment and construed as a due process claim, it is well established that the denial of due process in a state criminal trial “is the failure to observe that fundamental fairness essential to the very concept of justice.” Lisenba v. State of Cal., 314 U.S. 219, 236 (1941). In order to declare a denial of due process, the court must find that “the absence of that fairness fatally infected the trial.” Id.; see also Tapia v. Tansy, 926 F.2d 1554, 1557 (10th Cir. 1991) (due process claims entitle petitioner to relief only if the alleged errors rendered the trial as a whole fundamentally unfair).

         Nothing in the trial transcript supports a finding that this comment was a derogatory remark that rendered the jury no longer impartial. See Dec. 16, 2011 (P.M.) Trial Tr. at 126-179. The trial judge denied petitioner's request to have the two congressmen testify because petitioner had four previous character witnesses testify and the congressmen's testimony would be cumulative. The trial judge made no other remarks regarding the congressmen in front of the jury. Because petitioner's claim is highly speculative and not supported by the record, there is no basis to find that the trial was fatally infected by any alleged derogatory remarks made by the trial judge about the two congressmen who were not allowed to testify or, for that matter, made by the trial judge concerning any of the defense witnesses. Claim Twenty will be dismissed on the merits.

         2. Claim Twenty-Eight

         Petitioner asserts that criminal charges are arbitrary and capricious when a civil resolution is available for the same action. [#14 at 17]. Petitioner further asserts that a statute violates equal protection and due process if a separate statute covers the identical conduct but has lower penalties. [Id.] Petitioner also contends that there was no valid state interest in choosing a ...


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