Straub v. Goodrich

          ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

          William J. Martínez United States District Judge

         The matter before the Court is an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Docket No. 4), filed pro se by Applicant, Brian C. Straub. Upon consideration of Respondents' Answer (Docket No. 68), Applicant's Reply (Docket No. 69), and the state court record, the Court denies the Amended Application.

         I. Procedural Background

         On May 2, 2008, Applicant was convicted of aggravated robbery and second-degree kidnapping in Denver District Court No. 07CR2494. (Docket No. 1 at 1-2). He was sentenced to consecutive 10-year terms for the offenses.^[1] (Id. at 1).

         Applicant's convictions were affirmed on direct appeal in People v. Brian C. Straub, No. 08CA1587 (Colo.App. March 8, 2012) (unpublished) (Straub I). (Docket No. 4 at 29-44). The Colorado Supreme Court denied his petition for certiorari review on January 7, 2013. (Id. at 50). Applicant did not file a petition for certiorari review in the United States Supreme Court.

         Applicant initiated this federal habeas proceeding on January 9, 2014. (Docket No. 1). He filed an Amended Application on January 30, 2014 (Docket No. 4) asserting the following claims:

1. The prosecutor violated Applicant's due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose:

(a) The existence of a database of vehicle license plate numbers entering and leaving Denver International Airport (DIA) parking facilities, which, had it been reviewed prior to trial, would have shown that a vehicle registered to Applicant and his father entered DIA at the approximate time of the robbery, which in turn would have corroborated Applicant's alibi defense (Docket No. 4 at 4, 9-13);

(b) Criminal histories of three prosecution witnesses (id. at 4, 13-14).

         2. The prosecutor engaged in misconduct, in violation of due process by:

(a) suggesting through cross-examination of defense witnesses and in rebuttal closing argument, that Applicant had the burden of proving his innocence (id. at 5, 14-21);

(b) commenting, during cross-examination of Applicant, on Applicant's invocation of the Fifth Amendment privilege of remaining silent (after speaking with police) (id. at 17).

         3. Trial counsel was constitutionally ineffective in failing to:

(a) investigate the license plate database at DIA, which counsel knew about prior to trial (id. at 5, 22-23);

(b) object to the prosecution's late disclosure of the database (id. at 22);

(c) investigate the criminal backgrounds of three prosecution witnesses (id. at 5-6, 23-24);

(d) adequately prepare to undermine or rebut the prosecution's evidence that DNA in a ski mask found at the scene matched Applicant's DNA (id. at 6, 24-25);

(e) object to prosecution questions of alibi witnesses MH and SF, which suggested that their lack of corroboration for their alibi testimony undermined the credibility of their testimony (id. at 25);

(f) object to prosecution questions and argument suggesting Applicant had a burden to prove his innocence (id. at 26);

(g) request a curative instruction or a mistrial after Applicant's burden-shifting objection to the prosecution's closing argument was overruled (id.); and,

(h) rebut the prosecution's suggestion that alibi witnesses had not provided accurate contact information to, or otherwise cooperated with, the prosecution (id. at 25-26).

         On September 30, 2014, Senior District Judge Lewis T. Babcock issued an Order Staying Case pending Applicant's exhaustion of state court remedies for the ineffective assistance of counsel claims asserted in the Amended Application. (Docket No. 18).

         Applicant notified the Court on September 13, 2017, that the Colorado Court of Appeals had affirmed the state district court's denial of post-conviction relief in People v. Brian C. Straub, No. 15CA153 (Colo.App. Sept. 7, 2017) (unpublished) (Straub II). (Docket No. 39 at 33-62). The case was randomly assigned to the undersigned (Docket No. 55), and the Court issued an Order to Dismiss in Part and for Answer on December 27, 2017. (Docket No. 57). In the December 27 Order, the Court dismissed claim 2(b) of the Amended Application as procedurally barred. (Id. at 9-10). The Court further determined that one of the allegations in sub-claim 3(g) (counsel was ineffective in failing to request a mistrial) was procedurally defaulted, but deferred ruling on whether Applicant had shown cause to excuse the procedural default, pending receipt of the state court record and Respondents' Answer on the merits. (Id. at 12-14). The parties thereafter filed briefing on the merits of the remaining claims.

         II. Legal Standards

         A. 28 U.S.C. § 2254(d)

         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). The 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, 98-99 (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. at 98. 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.” Id. at 98. Thus, when a state court rejects a federal claim without expressly addressing that claim, a rebuttable presumption arises that the federal claim was adjudicated on the merits. See Johnson v. Williams, 568 U.S. 289, 301 (2013).

         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 the 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 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 [(10^th 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 unreasonably applies it to the facts. Id. at 407-08. 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.

House, 527 F.3d at 1018.

         The federal 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] Court.

Harrington, 562 U.S. at 101 (internal quotation marks and citation omitted). In conducting this analysis, the 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. 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 Harrington, 562 U.S. at 88 (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.

Harrington, 562 U.S. at 102.

         “[R]eview 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, 131 S.Ct. 1388, 1398 (2011).

         The court reviews 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). The court “must defer to the state court's factual determinations so long as ‘reasonable minds reviewing the record might disagree about the finding in question.'” Smith v. Duckworth, 824 F.3d 1233, 1241 (10th Cir. 2016) (quoting Brumfield v. Cain, ___U.S.___, 135 S.Ct. 2269, 2277 (2015)). Nevertheless, “if the petitioner can show that ‘the state courts plainly misapprehend[ed] or misstate[d] the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim, that misapprehension can fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable.'” Id. (alterations in original) (internal quotation marks and citation omitted).

         Pursuant to' 2254(e)(1), the court presumes that the state court's factual determinations are correct and the petitioner 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-BEl v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-BEl v. Cockrell, 537 U.S. 322, 340 (2003)).

         If a claim was not adjudicated on the merits in state court, the Court must review the claim de novo and the deferential standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).

         B. Pro Se Litigant

         Applicant 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). 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). Pro se status does not entitle an applicant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

         III. State Trial Court Proceedings

         Applicant presented two theories of defense at trial: (1) alibi-he was at DIA with a friend at the “exact time” of the robbery (State Court Record (“R.”), 4/28/08 Trial Tr. at 88-89^[2] (defense opening statement)); and, (2) the police failed to investigate alternate suspects-the two employees who were working at the time of the robbery (M.B. and C.B.), and a third person (R.C.) who was Applicant's housemate and a former employee (id. at 87-88).

         The following evidence was presented at trial. At approximately 2:00 p.m. on April 21, 2006, a masked gunman robbed the Coyote Ugly Saloon, a bar in downtown Denver located within the Denver Pavilions mall. (R., 4/28/08 Trial Tr., Melissa Bynens testimony, at 188-201; 4/29/08 Trial Tr. Chad Bryan testimony, at 498-508). Two employees, M.B. and C.B. were present in the bar at the time of the robbery. The robber pointed a gun at C.B.'s head and demanded that M.B. give him the bag containing approximately $15, 000 of the bar's cash receipts that M.B. had intended to deposit at the bank that afternoon. (Id.). Despite the robber's efforts to conceal his identity by wearing a ski mask and using a fake accent, M.B. and C.B. recognized the robber as Applicant, a former manager of the bar with whom both had worked. (Id.). M.B. testified that she recognized Applicant's physique, mannerisms, and “familiar presence.” (R., 4/28/08 Trial Tr., Bynens testimony, at 192-93). C.B. testified that he recognized Applicant by his height and body type, and also because he had heard Applicant use the same fake accent when they worked together. (R., 4/29/08 Trial Tr., Bryan testimony, at 501, 503). M.B. and C.B. initially thought that Applicant was playing a joke on them. M.B. testified, “I just didn't understand what was going on. Like - felt like I was on Punk'd or something . . . .” (R., 4/28/08 Trial Tr., Bynens testimony, at 197). M.B. further testified that immediately after the robber left, she was scared, but still thought he might come back and say “Gotcha!” (Id. at 199-200). C.B. testified that he was so convinced it was a joke that, even as the robber held a gun to the back of his head, he grabbed straws from the bar and threw them over his shoulder at the person whom he recognized as Applicant. (R., 4/30/08 Trial Tr., Bryan testimony, at 503-04). However, after the robber left the bar with the money and did not return, the bar employees realized it was not a hoax and called 911. (Id. at 507; 4/28/08 Trial Tr., Bynens testimony, at 200-01).

         A police officer who responded to the scene retrieved a black ski mask that had been discarded on the stairs outside the back entrance to the bar. (R., 4/28/08 Trial Tr., Officer Trent Tatum testimony, at 377; People's Ex. 52). A surveillance videotape from the interior of the Coyote Ugly showed the robber leaving the bar at 2:02 p.m. (R., 4/28/08 Trial Tr., Detective Alfonso Cervera testimony, at 154-55; Bynens testimony, 202-03; People's Ex. 40). Surveillance video footage taken from outside of the Denver Pavilions showed a man matching the robber's description leaving the shopping center with a trash bag at 1:53 p.m., and a police car arriving at the back door of the Coyote Ugly at 2:02 p.m.^[3] (R., 4/28/08 Trial Tr., Detective Cervera testimony, at 141-44; People's Ex. 49). Applicant could not be positively identified as the robber from the images on the video surveillance tapes. (R., 4/28/08 Trial Tr., Cervera testimony, at 143, 156-57).

         Several days after the robbery, Applicant voluntarily provided police investigators with fingerprints and a DNA sample. (R., 4/29/08 Trial Tr., Cervera testimony, at 559-62). Applicant was not told that he was a suspect in the robbery and he informed police that he planned to leave the country for a military tour in Iraq. (4/30/08 Trial Tr., Brian Straub testimony, at 777-78, 790).

         Applicant's DNA sample matched the DNA taken from inside the ski mask police found outside the bar after the robbery. (R., 4/30/08 Trial Tr., Elizabeth Hewitt testimony, at 633-37; Sylvia Thurmond testimony, at 648, 661). An arrest warrant was issued and Applicant was arrested in April 2007, after he returned from Iraq. (4/29/08 Trial Tr., Cervera testimony, at 562-63; 4/30/08 Trial Tr., Straub testimony, at 790).

         During the defense case, several witnesses testified in support of Applicant's alibi defense. One witness testified that he and Applicant belonged to a Brazilian martial arts group and, in connection with an annual martial arts event, Applicant was to pick up two visiting masters at DIA on April 21, 2006, whose flights arrived at 1:50 p.m. and 2:00 p.m. (R., 4/30/08 Trial Tr., Robert McNaughton testimony, at 678-688). Another witness testified that he and Applicant were running errands together in Denver on April 21 and then went to DIA to pick up the masters. (R., 4/30/08 Trial Tr., Michael Hove testimony, at 739). In response to defense counsel's query about what time the two men drove to DIA, the witness responded: “I know the no-later-than time was 2 o'clock to be there to pick them up.” (Id., Hove testimony, at 740). An additional witness testified that Applicant met him at the DIA baggage claim area on the afternoon of April 21 and that his flight was “on time.” (Id., Sebastio Felix testimony, at 705-08).

         Applicant also testified at trial. He told the police during his initial interview that he went to DIA at approximately 1:30 p.m. to pick up the Brazilian martial arts masters. (Id., Straub testimony, at 782). At trial, he stated that he arrived at DIA “around 2:00 o'clock” and that one of the visiting masters was waiting for him when he arrived. (Id. at 804).

         During the prosecution's rebuttal case, a detective testified that because he did not find a vehicle registered to Applicant in the Colorado motor vehicle registration database, he was unable to use the DIA license plate index to verify the time Applicant arrived at DIA on the day of the robbery. (R., 4/30/08 Trial Tr., Detective Richard Polack testimony, at 811-12). The detective further testified that the drive from downtown Denver to DIA at takes approximately 25-27 minutes. (Id. at 812).

         R.C., Applicant's then housemate and one of the “alternate suspects” identified by the defense, testified for the prosecution that he drove to Houston on the day of the robbery; that Applicant owned a handgun similar to the one he saw the robbery carrying on the video surveillance tape from inside the bar; and, that he, Applicant, M.B. and C.B. were all friends. (4/29/08 Trial Tr., Ross Chacon testimony, at 404-419). Applicant also testified that R.C. left for Texas the morning of the robbery. (R., 4/30/08 Trial Tr. at 801-02). R.C. is slightly taller and of broader build than the Applicant. (R., 4/29/08 Trial Tr., Bynens testimony, at 317-18; id., Bryan testimony, at 517).

         The prosecutor argued in closing that the evidence showed beyond a reasonable doubt Applicant was the robber. (R., 4/30/08 Trial Tr. at 835-838). Defense counsel argued in closing that Applicant was framed by M.B., C.B. and R.C. (id. at 843-860) and that “the evidence is clearly uncontroverted that [Applicant] was at DIA when it happened.” (Id. at 860). In rebuttal, the prosecution contended that there was no credible evidence to support Applicant's alternate suspect theory (id. at 864-66), and that “[t]here was plenty of time for the defendant to do the crime and get to the airport.” (Id. at 868).

         After trial, Applicant filed a motion for new trial under Colorado law based on newly discovered evidence. (R., Court File, at 107). In the motion, Applicant stated that the defense learned about the existence of a DIA license plate index on the last day of trial, when the detective mentioned it during the prosecution's rebuttal case. (Id. at 108). Applicant further stated that he was unaware of the documentary evidence before trial because he was informed that any surveillance images from DIA had been destroyed. (Id.). Applicant argued that the DIA license plate index from the date of the robbery showed that a vehicle registered in his name arrived at the DIA parking lot at 2:31 p.m.; surveillance images taken at the bar showed the robber leaving at 2:02 p.m.; and, that he could not possibly have driven from downtown Denver to DIA in 29 minutes. (Id. at 108-111). The attachments to Applicant's motion established that there was a car registered jointly to Applicant and his father at the time of the robbery, and the DIA license plate index database reflected its arrival at DIA at 2:31 p.m. (Id. at 115-116, 118). Applicant also provided affidavits from several persons who stated that the duration of the drive from downtown Denver to DIA in the middle of the afternoon is 31-39 minutes. (Id. at 121-138).

         The trial court denied the motion without a hearing, ruling that defense counsel failed to exercise diligence in discovering all possible evidence that was favorable to Applicant, and that the motion failed to show that the newly discovered evidence probably would have resulted in an acquittal. (R., 6/16/08 Hrg. Tr. at 900-01).

         IV. Analysis of Claims

         A. Sub-claims 1(a) and 1(b)

         Applicant contends in claim 1 that the prosecution violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose: (a) the existence of a database of vehicle license plate numbers entering and leaving DIA parking facilities, that, had it been reviewed prior to trial, would have shown that a vehicle registered to Applicant and his father entered DIA at the approximate time of the robbery, which in turn would corroborate Applicant's alibi defense (Docket No. 4 at 4, 9-13); and, (b) the criminal histories of three prosecution witnesses (id. at 4, 13-14).

         1. Applicable ...