United States District Court, D. Colorado
ORDER DENYING APPLICATION FOR A WRIT OF HABEAS
Brooke Jackson, United States District Judge.
matter before the Court is an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254, ECF No. 6.
After reviewing the pertinent portions of the record in this
case, including the Application and Answer, ECF No. 25, the
Court determines it can resolve the Application without a
hearing, see 28 U.S.C. § 2254(e)(2); Fed. R.
Governing Section 2254 Cases 8(a), and concludes that the
action should be dismissed.
is a prisoner in the custody of the Colorado Department of
Corrections. He currently is incarcerated at the Fremont
Correctional Facility in Cañon City, Colorado,
pursuant to his conviction and sentencing in State of
Colorado Criminal Case No. 10CR1857. The Colorado Court of
Appeals (CCA), in the denial of Applicant's direct
appeal, summarized the underlying facts as follows:
According to the prosecution's trial evidence, defendant
touched and penetrated the victim's vagina with his
finger and penis on multiple occasions.
Prior to trial, the People asked that the victim,
defendant's daughter, who was ten years old at the time
of trial, be permitted to testify via closed circuit
television (CCTV). Defendant objected. After a hearing at
which the victim's counselor testified, the court
permitted the victim to give testimony in his chambers
(outside the presence of defendant), which was displayed via
CCTV in the courtroom.
The jury returned guilty verdicts on all of the charges
People of the State of Colo. v. Magana, No.
12CA1073, 1 (Colo.App. July 3, 2014); ECF No. 12-2 at 2.
acting pro se, initiated this 28 U.S.C. § 2254
action on February 25, 2016, by submitting an Application for
a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. On
March 28, 2016, pursuant to a court order, Applicant filed an
Amended Application, which is the operative pleading in this
action. Applicant asserts one claim in the March 28
Application as follows:
[His] right to confront accusatory witness impermissibly
infringed when the trial court's decision authorizing the
use of closed circuit television testimony was contrary to
and an unreasonable application of Maryland v.
Craig, 497 U.S. 836 (1990); U.S. Const. amend. VI; 28
U.S.C. § 2254(d)(1) (2) . . . . [A]s a whole, testimony
from the therapist that the CCTV procedure was necessary was
insufficient within the scope of Craig.
ECF No. 6 at 6.
March 30, 2016, Magistrate Judge Gordon P. Gallagher entered
an order directing Respondents to file a Pre-Answer Response
and address the affirmative defenses of timeliness under 28
U.S.C. § 2244(d) and exhaustion of state court remedies
under 28 U.S.C. Â§ 2254(b)(1)(A) if Respondents intended to
raise either or both of these defenses. Respondents filed a
Pre-Answer Response, ECF No. 12, on April 19, 2016. Applicant
did not reply to the Response. Respondents concede in the
Pre-Answer Response that the Application is timely and the
claim is exhausted. ECF No. 12 at 3 and 6. On August 22,
2016, the Court directed Respondents to file an Answer that
addresses the merits of Applicant's claim. Respondents
filed the Answer on October 25, 2016. See ECF No.
25. Applicant requested an extension of time to reply, which
was granted. See ECF Nos. 26 and 27. Applicant,
nonetheless, has failed to submit a reply.
Pro Se Standard of Review
is proceeding pro se. The Court, therefore,
“review[s] his pleadings and other papers liberally and
hold[s] them to a less stringent standard than those drafted
by attorneys.” Trackwell v. United States, 472
F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see
also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (pro
se complaint held to less stringent standards than formal
pleadings drafted by lawyers). However, a pro se
litigant's “conclusory allegations without
supporting factual averments are insufficient to state a
claim on which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court
may not assume that an applicant can prove facts that have
not been alleged, or that a respondent has violated laws in
ways that an applicant has not alleged. Associated Gen.
Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983).
28 U.S.C. Â§ 2254
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).
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 pursuant to ' 2254(d)(1) is whether
Applicant 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). The “review under ' 2254(d)(1) is
limited to the record that was before the state court that
adjudicated the 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. 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.
there is no clearly established federal law, that is the end
of the Court's inquiry pursuant to ' 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, 120 S.Ct. 1495).
“The word ‘contrary' is commonly understood
to mean ‘diametrically different, ' ‘opposite
in character or nature, ' or ‘mutually
opposed.' ” Williams, 529 U.S. at 405, 120
S.Ct. 1495 (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
unreasonably applies it to the facts. Id. at 407-08,
120 S.Ct. 1495. 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 1222, 1229-30 10th Cir. 2000]).
House, 527 F.3d at 1018.
Court's 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. 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)
(citations and internal quotation marks omitted). This Court
“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. at 102. (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.
[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 ...