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McCary v. Foster

United States District Court, D. Colorado

October 17, 2017

STEVEN DOUGLAS McCARY, Applicant,
v.
WARDEN SEAN FOSTER, and CYNTHIA COFFMAN, Attorney General of the State of Colorado, Respondents.

          ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

          MARCIA S. KRIEGER, CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 20) (the “Amended Application”) filed pro se on December 15, 2016, by Applicant, Steven Douglas McCary. Mr. McCary is challenging the validity of his convictions and sentences in two Boulder County, Colorado, District Court cases. The relevant state court case numbers are 06CR997 and 06CR1641. After reviewing the entire record in this action, the Court FINDS and CONCLUDES that the Amended Application should be denied and the case dismissed with prejudice.

         I. BACKGROUND

         Mr. McCary was convicted by a jury in case number 06CR997 on one count of first degree criminal trespass and one count of menacing.

The charges against defendant arose from an incident in which he entered his former wife's home, argued with her, and refused to leave. Defendant admitted he pinned the victim down while he punched the floor next to her head. Following the altercation, defendant called the police and reported finding drugs in the home; the victim, however, maintained that the report was fabricated.

(ECF No. 35-1 at 2.) Mr. McCary also agreed to plead guilty to habitual criminal charges in exchange for dismissal of a second degree burglary count if he was found guilty of criminal trespass. He was sentenced in case number 06CR997 to twelve years in prison. The judgment of conviction and the sentence were affirmed on direct appeal. (See ECF No. 35-1.)

         Mr. McCary was convicted by a jury in case number 06CR1641 of first degree criminal trespass and violation of bail bond conditions. The charges in this case stemmed from an incident when Mr. McCary “was allegedly observed by a neighbor inside his ex-wife's house while the ex-wife was away, despite the existence of both a protective order and a bail bond condition prohibiting him from entering her house.” (ECF No. 35-2 at 2.) Mr. McCary was sentenced in case number 06CR1641 to concurrent terms of twelve years in prison on the trespass count and six years in prison on the violation of bail bond conditions count. The trial court ordered the six-year sentence to be served consecutively to Mr. McCary's sentence in case number 06CR997 and later amended the mittimus to clarify that the twelve-year sentence also was consecutive to Mr. McCary's sentence in case number 06CR997. The judgment of conviction and the sentences were affirmed on direct appeal. (See ECF No. 35-2.) In postconviction proceedings, the Colorado Court of Appeals agreed with Mr. McCary that the trial court violated the prohibition against double jeopardy by amending the mittimus to run the sentence for trespass consecutively to his sentence in case number 06CR997. (See ECF No. 35-4.) As a result, the Colorado Court of Appeals ordered that the mittimus in case number 06CR1641 be corrected to reflect that Mr. McCary's sentence for trespass run concurrently with his sentence in case number 06CR997. (See id.) Mr. McCary's six-year sentence for violating bail bond conditions in case number 06CR1641 remains consecutive to his sentence in case number 06CR997. (See id.)

         Mr. McCary asserts six claims in the Amended Application. He contends in the first three claims that his rights under the Fifth and Fourteenth Amendments were violated by: imposition of consecutive habitual criminal sentences contrary to state and federal statutes (claim one); imposition of an habitual criminal sentence that exceeds “the allowable sentencing range for a class (6) felony” (ECF No. 20 at 6) under Colorado law (claim two); and reduction of the amount of presentence confinement time awarded in case number 06CR1641 (claim three). Mr. McCary contends in claim four that counsel Richard Irvin was ineffective by failing to “present the favorable evidence of perjured testimony by the alleged victim that proved the applicant's innocence.” (ECF No. 20 at 7.) He similarly contends in claim five that counsel Gregg Friedman was ineffective by failing to “present the favorable evidence of perjured testimony by the alleged victim that proved the applicant's innocence.” (ECF No. 20 at 7.) Mr. McCary finally contends in claim six that the prosecution failed to disclose favorable evidence in violation of his Fourteenth Amendment rights.

         On April 18, 2017, the Court entered an Order to Dismiss in Part (ECF No. 47) dismissing claims one, two, and three as unexhausted and procedurally barred. Therefore, only claims four, five, and six remain to be considered on the merits. Also on April 18, 2017, the Court ordered Respondents to file an answer that fully addresses the merits of the remaining claims along with the complete record of the state court proceedings. On May 22, 2017, the Court ordered Respondents to show cause why the Amended Application should not be granted because Respondents failed to file either an answer or the state court record within the time allowed. On May 26, 2017, Respondents filed a Response to Order to Show Cause (ECF No. 50) that addresses the merits of Mr. McCary's remaining claims. On June 1, 2017, Respondents submitted a portion of the state court record. (See ECF No. 53.) On August 8, 2017, Mr. McCary filed a motion (ECF No. 68) seeking leave to file a reply out of time and he tendered to the Court a proposed Reply (ECF No. 68-1). That motion will be granted and the Court will consider the arguments in the Reply. On August 29, 2017, Respondents submitted the remaining portions of the state court record. (See ECF No. 72.)

         Mr. McCary also has filed a Motion for Relief from a Judgment or Order (ECF No. 59) asking the Court to reconsider an Order (ECF No. 54) that denied his Request for Production of Documents Pursuant to the Provisions of Fed. Rules Civ. Proc. Rule 26 and Rule 34 (ECF No. 49). The Motion for Relief from a Judgment or Order will be denied because the Court remains convinced that Mr. McCary fails to demonstrate good cause for the requested discovery. Mr. McCary's motion titled Applicant's Request to Review the Entire State Court Record (ECF No. 73) also will be denied.

         II. STANDARDS OF REVIEW

         The Court must construe the Amended Application and other papers filed by Mr. McCary 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. McCary 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. McCary 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 [(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 ...

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