United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE.
case comes before the court on Applicant Dameion Moore's
“Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254” (Doc. No. 1) challenging the
validity of his conviction in case number 2012CR1010 in the
Denver County District Court. Respondents filed an Answer
(Docket No. 26), and Applicant filed a Reply with a request
for oral argument (Docket No. 27).
court has determined that it can resolve the Application
without a hearing. 28 U.S.C. § 2243; see also Jeter
v. Keohane, 739 F.2d 257 n.1 (7th Cir. 1984) (“An
evidentiary hearing is not necessary when the facts essential
to consideration of the constitutional issue are already
before the court.”). Upon careful review of the record,
including the Application, the Answer, the Reply, and the
state court record, the court recommends that the Application
should be denied and the case dismissed.
was charged with possession of a controlled substance,
distribution of a controlled substance, and conspiracy to
distribute a controlled substance. (Doc. No. 1-4 at 5.) A
jury found him guilty of the possession and distribution
counts but acquitted him of the conspiracy count.
(Id.; Doc. No. 1-1 at 2.) He was sentenced to ten
years on the distribution counts and a concurrent term of
eighteen months on the possession count. (Id.) The
conviction was affirmed on direct appeal. (ECF No. 1-1 at 2.)
initiated this action on July 7, 2016, by filing the §
2254 Application and asserting one claim that his convictions
for both possession and distribution violate the
Constitution's double jeopardy ban. (Doc. No. 1 at 7-8.)
Pre-Answer Response, Respondents concede that the action is
timely under the one-year limitation period in 28 U.S.C.
§ 2244(d) and that Applicant's claim is exhausted.
(See Doc. No. 13.) On August 30, 2016, the court
entered an Order for Respondents to Answer Applicant's
claim. (Docket No. 14).
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), § 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;
(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). The applicant bears the burden of
proof under § 2254(d). See Woodford v.
Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
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, 98-99 (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. at 98. 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.
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 the applicant seeks to apply a rule of
law that was clearly established by the Supreme Court at the
time of the relevant state court decision. See Williams
v. Taylor, 529 U.S. 362, 390 (2000). Clearly established
federal law “refers to the holdings, as ...