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Gay v. Foster

United States District Court, D. Colorado

September 18, 2018

TERRY GAY Applicant,
SHAWN FOSTER, Warden, and CYNTHIA H. COFFMAN, Attorney General for the State of Colorado, Respondents.



         This 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.

         I. Background

         In 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 home.
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.

         On 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.

         Respondents 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.

         The 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, and
(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 Constitution.

         Respondents 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.

         II. Legal Standard

         A. Pro Se Standard of Review

         Applicant 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).

         B. 28 U.S.C. § 2254

         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). Applicant bears the burden of proof under' 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).

         A claim 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 (1991).

         Even "[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.” Id.

         I 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. 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 my inquiry pursuant to' 2254(d)(1). See Id. at 1018.

         If a 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 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) (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.

         My 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] Court.

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).

         Under 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.

         I 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, 340 (2003)).

         Finally, 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.

         I make 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).

         If a 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 ...

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