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Moore v. Lengerich

United States District Court, D. Colorado

June 15, 2018

DAMEION MOORE, Petitioner,
v.
JOSEPH LENGERICH, Warden, Buena Vista Minimum Center, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

          ORDER DISMISSING 28 U.S.C. § 2254 PETITION FOR LACK OF JURISDICTION

          William J. Martinez United States District Judge.

         Petitioner Dameion Moore (“Moore”) is a prisoner in the custody of the Colorado Department of Corrections (“CDOC”). He seeks a writ of habeas corpus under 28 U.S.C. § 2254, claiming that his convictions in state court for possessing and distributing the same quantum of illegal narcotics violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. (ECF No. 1.) On October 10, 2017, United States Magistrate Judge Kathleen M. Tafoya issued a recommendation that the Court deny Moore's petition (“Recommendation”). (ECF No. 30.) Moore has filed an objection (“Objection”). (ECF No. 31.) Respondents filed no response.

         For the reasons set forth below, the Court finds that it lacks jurisdiction over Moore's petition because his eighteen-month sentence imposed on the possession count had already been served when he filed the petition. Alternatively, the Court agrees with the Magistrate Judge that Moore is not entitled to habeas relief.

         I. BACKGROUND

         In Colorado state court, a jury convicted Moore of possessing a controlled substance in violation of Colorado Revised Statutes § 18-18-403.5, and also of distributing a controlled substance in violation of Colorado Revised Statutes § 18-18-405. (ECF No. 1 at 2.) Although there was some question in state-court proceedings whether the jury had based its convictions on separate incidents (i.e., possessing a particular quantum of drugs but distributing a different, discrete quantum of drugs) (see ECF Nos. 1-4, 1-7), Respondents no longer dispute that the jury convicted for possessing and distributing the same quantum of drugs (see ECF No. 26). The state trial judge imposed a sentence of eighteen months on the possession count, and a concurrent sentence of ten years on the distribution count. (ECF No. 1-1 at 2.)

         Moore appealed to the Colorado Court of Appeals (“CCA”), arguing that his double-conviction and double-sentencing for the same act violated the U.S. Constitution's Double Jeopardy Clause. (See ECF No. 1-3.) For reasons discussed in more detail below, the CCA disagreed, finding that the Colorado Legislature intended distribution and possession to be charged and punished separately, and such legislative intent nullified any Double Jeopardy objection. (See ECF No. 1-1 at 3-5.)

         About two weeks later, Moore petitioned the CCA for rehearing. (ECF No. 5.) A few days after Moore filed that petition, the Colorado Supreme Court issued People v. Davis, 352 P.3d 950 (Colo. 2015), which addressed an almost identical issue and held that Double Jeopardy barred the double convictions-thus calling into doubt whether the CCA had reached the correct conclusion in Moore's case about the Colorado Legislature's intent. The CCA nonetheless denied the petition for rehearing, and, on April 18, 2016, the Colorado Supreme Court denied certiorari, with two justices dissenting. (ECF No. 1-2.)

         Moore did not institute state post-conviction collateral review proceedings, but instead filed his § 2254 petition in this Court on July 7, 2016. (ECF No. 1.) Respondents have explicitly waived any objection they may have based on Moore's choice not to pursue his claims through state collateral review. (See ECF No. 9 at 2; ECF No. 13 at 1.)

         On October 10, 2017, Judge Tafoya issued her Recommendation, reasoning that this Court could not go behind the CCA's conclusion that the Colorado Legislature had authorized separate convictions and punishments for possession and distribution. (ECF No. 30 at 7.) Moore timely filed his Objection. (ECF No. 31.)

         II. STANDARD OF REVIEW

         When a Magistrate Judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” The Court has therefore reviewed all the filings to date and has reached its own independent conclusion in this matter. That review, however, prompted the Court to question whether it has subject matter jurisdiction, as explained below. See Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented. Subject-matter jurisdiction can never be waived or forfeited.” (citation omitted)).

         III. ANALYSIS

         A. General Standards of § 2254 Review

         Moore seeks a writ of habeas corpus under 28 U.S.C. § 2254(d):

         An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

         (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.

         This statutory scheme can be broken out into a series of questions:

1. Is the petitioner in custody pursuant to the judgment of a state court?
2. Was the claim on which the petitioner bases his or her petition adjudicated on the merits in state court-or in other words, did the petitioner raise his or her claim in state post-conviction proceedings?
3. Did the state court's decision on the petitioner's claim contradict or unreasonably apply federal law as established clearly by the United States Supreme Court? Or, alternatively, did the state court's decision on the petitioner's claim rely on an unreasonable determination of facts in light of the evidence presented to the state court?

         The parties' filings and the Recommendation address only the first variant of the third question: whether the state court contradicted or unreasonably applied clearly established federal law. There is a serious question, however, regarding the first question: ...


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