United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS
T. BABCOCK, SENIOR JUDGE UNITED STATES DISTRICT COURT
matter is before me on the Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254, ECF No. 1, filed
pro se by Applicant Terry Gay. The Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
challenges the validity of Applicant's criminal
conviction in No. 2005CR1114 in the Jefferson County District
Court in Golden, Colorado.
Applicant's direct appeal the Colorado Court of Appeals
(CCA) summarized the background of Applicant's criminal
case as follows:
On the night of March 23, 2005, the victim was shot in the
back of his head during a crowded party at a Jefferson County
Gay arrived at the party prior to the shooting. The party was
chaotic, and the witnesses disputed its specific details.
During the night and prior to the shooting, partygoers
crowded the house, consumed alcohol and drugs, and fought
amongst themselves. Late into the evening, a loud pop was
heard; someone screamed, “He's dead”; and the
victim lay on the floor of the house. Some witnesses
identified another individual as the shooter.
Jefferson County Sheriff's Officers responded to the
shooting. An officer at the scene heard “a lot of
screaming and yelling coming from the house, ” and
observed people with blood on their clothes.
A sheriff's officer arrested Gay. The People charged Gay
in Jefferson County with one count of first degree murder,
two counts of crime of violence, and two counts of possession
of a weapon by a previous offender. Gay pleaded not guilty on
all counts and requested a jury trial.
Prior to trial, the People filed a motion to introduce
evidence under CRE 404(b), that Gay was involved in a
shooting in Denver occurring one week before the present
shooting. The People offered the evidence to rebut Gay's
denial that he owned or possessed any firearms, other than a
shotgun found on his property; to show Gay's intent in
the present shooting; and to show that Gay acted with
deliberation and premeditation. Over defendant's
objection, the trial court admitted the evidence at trial.
After a jury trial, the jury returned a verdict finding Gay
guilty of first degree murder, and he was sentenced to life
without the possibility of parole.
People v. Gay, No. 06CA1615, 1-2 (Colo.App. Nov. 24,
2010); ECF No. 11-5 at 4-5. The Colorado Supreme Court (CSC)
denied Applicant's petition for certiorari review of the
CCA's denial of his direct appeal. ECF No. 11-7. The CCA
denied Applicant's Rule 35(c) postconviction motion on
appeal, and the CSC denied Applicant's petition for
certiorari review. See ECF Nos. 11-11 and 11-13.
Applicant filed a § 2254 action in this Court on
September 26, 2016, that sets forth eight claims. ECF No. 1.
November 3, 2016, Magistrate Judge Gordon P. Gallagher
directed Respondents to file a Pre-Answer Response and to
address the affirmative defenses of timeliness under 28
U.S.C. § 2254(d), and exhaustion of state court remedies
under 28 U.S.C. § 2254(b)(1)(A), if Respondents intended
to raise either or both in this action.
filed a Pre-Answer Response, ECF No. 11, on November 22,
2016, and Applicant filed a Reply, ECF No. 12, on December
15, 2016. Magistrate Judge Gallagher reviewed the Pre-Answer
Response and the Reply, and filed an Order to Supplement
Pre-Answer Response that directed parties to address
available state court remedies. ECF No. 13. Applicant and
Respondents briefed the available remedies issues and on
October 27, 2017, I entered an Order for Answer in Part,
Dismissal in Part, and State Court Record, ECF No. 26. The
October 27 Order dismissed Claims Four through Nine and
directed Respondents to file an answer that addresses the
merits of subparts (a) and (b) of Claim One and Claims Two
and Three. ECF No. 26 at 19.
remaining claims for review on the merits are as follows:
(1) (Claim One)-The trial court committed reversible error
and violated Applicant's due process rights by refusing
to recuse after improperly admitting evidence that
(a) Applicant had been accused of an unrelated shooting,
which had occurred a week before the shooting in this case,
(b) Applicant was known to say, “Do I need to go out
and get my gun?”, when he had problems with someone;
(2) (Claim Two)-The trial court violated Applicant's
right to due process and a fair trial when it admitted
testimony by a police detective that witnesses usually do not
testify consistent with their prior statements to police; and
(3) (Claim Three)-Trial Counsel was ineffective in violation
of the Sixth and Fourteenth Amendments and the Colorado
filed an Answer, ECF No. 27, on November 27, 2017, addressing
the remaining claims on the merits. Applicant filed a Reply,
ECF No. 30, on December 29, 2017. After reviewing the
Application, the Answer, the Reply, and the state court
record, I conclude that the Application should be denied and
the case dismissed with prejudice for the following reasons.
Pro Se Standard of Review
is proceeding pro se. I, therefore, review the
Application liberally and hold the pleading “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). 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). An applicant's
pro se status does not entitle him to an application
of different rules. See Montoya v. Chao, 296 F.3d
952, 958 (10th Cir. 2002).
28 U.S.C. Â§ 2254
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
(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). 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 (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. (collecting cases). 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. "Where there has been one reasoned state judgment
rejecting a federal claim," federal habeas courts should
presume that "later unexplained orders upholding that
judgment or rejecting the same claim rest upon the same
ground." Ylst v. Nunnemaker, 501 U.S. 797, 803
"[w]here a state court's decision is unaccompanied
by an explanation, the habeas petitioner's burden still
must be met by showing there was no reasonable basis for the
state court to deny relief." Richter. 562 U.S.
at 98. In other words, I "owe deference to the state
court's result, even if its reasoning is not
expressly stated." Aycox v. Lytle, 196 F.3d
1174, 1177 (10th Cir. 1999). Therefore, I "must uphold
the state court's summary decision unless [my]
independent review of the record and pertinent federal law
persuades [me] that its result contravenes or unreasonably
applies clearly established federal law, or is based on an
unreasonable determination of the facts in light of the
evidence presented." Id. at 1178. “This
‘independent review' should be distinguished from a
full de novo review of the petitioner's claims.”
review 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 a court must answer under' 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). 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.
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 my inquiry pursuant to' 2254(d)(1). See
Id. at 1018.
clearly established rule of federal law is implicated, I 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
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) (citation
omitted0. "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 . . . .
House, 527 F.3d at 1018.
inquiry pursuant to the “unreasonable
application” clause is an objective inquiry.
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. The Supreme Court has also stated:
[E]valuating 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]
Richter, 562 U.S. at 101 (internal quotation marks
omitted). In conducting this analysis, I “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. In addition,
“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).
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;
see also Richter, 562 U.S. at 102 (stating that
“even a strong case for relief does not mean the state
court's contrary conclusion was unreasonable”).
As a condition for obtaining habeas corpus 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 existing law beyond any
possibility for fairminded disagreement.
Richter, 562 U.S. at 103.
review claims asserting factual errors pursuant to 28 U.S.C.
§ 2254(d)(2). See Romano v. Gibson,
278 F.3d 1145, 1154 n.4 (10th Cir. 2002). Section 2254(d)(2)
allows a court to grant a writ of habeas corpus only if the
relevant state court decision was based on an unreasonable
determination of the facts in light of the evidence presented
to the state court. Pursuant to' 2254(e)(1), I must
presume that the state court's factual determinations are
correct and Applicant bears the burden of rebutting the
presumption by clear and convincing evidence. “The
standard is demanding but not insatiable . . . [because]
'[d]eference does not by definition preclude relief.'
” Miller-El v. Dretke, 545 U.S. 231, 240
(2005) (quoting Miller-El v. Cockrell, 537 U.S. 322,
my analysis is not complete “[e]ven if the state court
decision was contrary to, or involved an unreasonable
application of, clearly established federal law.”
Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.
2006). “Unless the error is a structural defect in the
trial that defies harmless-error analysis, [I] must apply the
harmless error standard of Brecht v. Abrahamson, 507
U.S. 619 (1993) . . . .” Id.; see also Fry
v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a
federal court must conduct harmless error analysis under
Brecht anytime it finds constitutional error in a
state court proceeding regardless of whether the state court
found error or conducted harmless error review). Under
Brecht, a constitutional error does not warrant
habeas relief unless I conclude it “had substantial and
injurious effect” on the jury's verdict.
Brecht, 507 U.S. at 637. “[A]
‘substantial and injurious effect' exists when the
court finds itself in ‘grave doubt' about the
effect of the error on the jury's verdict.”
Bland, 459 F.3d at 1009 (citing O'Neal v.
McAninch, 513 U.S. 432, 435 (1995)). “Grave
doubt” exists when “the matter is so evenly
balanced that [I am in] in virtual equipoise as to the
harmlessness of the error.” O'Neal, 513
U.S. at 435.
this harmless error determination based upon a thorough
review of the state court record. See Herrera v.
Lemaster, 225 F.3d 1176, 1179 (10th Cir. 2000).
“In sum, a prisoner who seeks federal habeas corpus
relief must satisfy Brecht, and if the state court
adjudicated his claim on the merits, the Brecht test
subsumes the limitations imposed by AEDPA.” Davis
v. Ayala, ___ U.S. ___, 135 S.Ct. 2187, 2199 (2015)
(citing Fry, 551 U.S. at 119-120).
claim was not adjudicated on the merits in state court, and
if the claim also is not procedurally barred, I must review
the claim de novo and the deferential standards
of' 2254(d) do not ...