United States District Court, D. Colorado
ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
E. Blackburn United States District Judge.
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] 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.
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.
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:
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
[#9-8 at 2-3].
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
(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
Standard of Review
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.
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).
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).
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.
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.
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
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  1229-30 [10th Cir. 2000]).
House, 527 F.3d at 1018.
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]
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).
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.
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)).
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.
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).
Merits of Claims
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
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.
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.
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
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.
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 ...