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Packard v. Goodrich

United States District Court, D. Colorado

September 1, 2017




         This 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.


         Mr. 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 Oct. 29, 2015) (unpublished)).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.)

         Mr. 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.

         On May 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.


         The 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.

         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). Mr. Packard bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).

         The 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 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 the Court's inquiry under § 2254(d)(1). See id. at 1018.

         If a 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 ...

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