United States District Court, D. Colorado
ORDER DENYING APPLICATION FOR WRIT OF HABEAS
BROOKE JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on the Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1)
(the “Application”) filed pro se by
Applicant, Curtis Dee Packard, on April 4, 2017. Mr. Packard
challenges the validity of his convictions in Larimer County,
Colorado, District Court case number 2010CR1780. Respondents
have filed an Answer (ECF No. 21) and Mr. Packard has filed
Applicant's Traverse to Respondents' Answer (ECF No.
22) (“the Traverse”). After reviewing the entire
record before the Court, including the Application, the
Answer, the Traverse, and the state court record, the Court
FINDS and CONCLUDES that the Application should be denied and
the case dismissed with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
Packard was convicted by a jury on three counts of theft and
four counts of securities fraud. He originally was sentenced
to forty years in prison but that sentence later was reduced
to twenty-one years.
The victim and Packard met in Utah and soon became friends.
Packard asked the victim to finance a building project. The
victim agreed and was pleased with the success of the
business partnership. The two experienced even more success,
building six houses in Utah.
Based on the success of these investments, the victim trusted
Packard. Packard proposed a larger-scale home-building
project in Fort Collins, Colorado. In order to finance this
project, the victim gave Packard $7 million to buy
development property. Packard also proposed expanding into
the motorcycle engine business, so the victim guaranteed $1.4
million of bank loans for the start-up capital.
The victim eventually discovered that Packard was not making
loan payments, so the victim began making the payments. He
then discovered that the interest he thought he had in the
investment property did not exist. Packard did not use the $7
million to purchase any development property.
The jury found that Packard's actions constituted the
sale of securities, leading to the charges in this case.
(ECF No. 10-1 at 2-3) (People v. Packard, No.
14CA0067 (Colo.App. Oct. 29, 2015) (unpublished)). The
judgment of conviction was affirmed on direct appeal.
(See id.) On April 18, 2016, the Colorado Supreme
Court denied Mr. Packard's petition for writ of
certiorari on direct appeal. (See ECF No. 10-2.)
Packard asserts three claims for relief. He first claims his
Sixth Amendment right to counsel was violated when the trial
court allowed the public defender to withdraw without making
specific findings to support withdrawal. He contends in claim
two that his constitutional rights were violated because the
trial court failed to act sua sponte and appoint new counsel
to represent him after the public defender was allowed to
withdraw. In claim three Mr. Packard contends his
constitutional right to confrontation was violated when the
trial court permitted the prosecution to introduce the
deposed testimony of an available witness.
23, 2017, the Court entered an Order to Dismiss in Part (ECF
No. 13) and dismissed claim three because that claim is
procedurally barred. On June 8, 2017, Mr. Packard filed
Applicant's Objections to the Court's Order of
Dismissal in Part (ECF No. 16). Mr. Packard argues in his
objections that claim three should not be dismissed as
procedurally barred. The Court construes the objections as a
motion to reconsider, which the Court will deny because the
Court remains convinced that claim three properly was
dismissed as procedurally barred.
STANDARDS OF REVIEW
Court must construe the Application and other papers filed by
Mr. Packard liberally because he is not represented by an
attorney. See Haines v. Kerner, 404 U.S. 519, 520 21
(1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). However, the Court should
not be 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). Mr. Packard bears the burden of
proof under § 2254(d). See Woodford v.
Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
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 Mr. Packard seeks to apply a
rule of law that was clearly established by the Supreme Court
at the time his conviction became final. 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
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 the Court's inquiry under §
2254(d)(1). See id. at 1018.
clearly established rule of federal law is implicated, the
Court 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
[(10thCir. 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