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Mackey v. Hanson

United States District Court, D. Colorado

November 12, 2019




         Applicant Kenneth D. Mackey is a prisoner in the custody of the Colorado Department of Corrections. Mr. Mackey has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, Docket No. 1, challenging the validity of his conviction in Arapahoe County District Court, Case Number 2013CR2631. On July 31, 2019, Respondents filed an Answer, Docket No. 24, and on September 10, 2019, Mr. Mackey filed a Reply, Docket No. 27.

         After reviewing the record, including the Application, the Answer, the Reply, and the state court record, the Court concludes Mr. Mackey is not entitled to relief on his remaining claims.

         I. BACKGROUND

         Mr. Mackey was convicted by a jury of first degree murder after deliberation, felony murder, attempted first degree murder after deliberation, two counts of aggravated robbery, first degree burglary, conspiracy to commit aggravated robbery, conspiracy to commit first degree burglary, and second degree aggravated motor vehicle theft. The following brief description of the offenses and investigation is taken from the opinion of the Colorado Court of Appeals on direct appeal.

The victim was a drug dealer. He and Jennifer Mack went to bed in the living room of his apartment one evening. They awoke in the middle of the night when two men forcibly entered the apartment and attempted to rob the victim. The victim retrieved a gun and shot one of the intruders before running out of the apartment. The remaining intruder followed him out before returning to the apartment and attempting to rouse the injured intruder. He then turned to Mack and asked where the victim kept his money and car keys. After Mack told him, the intruder retrieved the keys and shot Mack in the chest. He fled in the victim's car.
The victim was found by police in a nearby alleyway. He had been shot three times and ultimately died at a hospital. The other intruder also died, and Mack survived.
After an investigation sparked by a tip from a confidential informant, the People concluded that defendant was the second intruder, who followed the victim outside and shot him, shot Mack, and then drove away in the victim's car. Defendant was ultimately charged and convicted for his role in the robbery and shooting.

Docket No. 7-4 at 2-3. Mr. Mackey was sentenced to life in prison without the possibility of parole. On March 29, 2018, the Colorado Court of Appeals affirmed the judgment of conviction. See Docket No. 7-4. On September 10, 2018, the Colorado Supreme Court denied Mr. Mackey's petition for writ of certiorari on direct appeal. See Docket No. 7-3.

         Mr. Mackey asserts three claims in the Application. Claim one is a Fourth Amendment claim in which he contends the trial court erroneously denied his motion to suppress GPS data procured by an allegedly illegal search. Mr. Mackey contends in claim two that his state and federal constitutional rights to a fair trial were violated by admission of prejudicial evidence of other misconduct. Finally, he contends in claim three that his Sixth Amendment right to counsel was violated because he was effectively compelled to proceed pro se after the trial court denied his motion for substitution of counsel. The Court previously entered an Order, Docket No. 16, dismissing claim two. Additional facts pertinent to the remaining claims are set forth below.


         The Court must construe the Application and other papers filed by Mr. Mackey liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

         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). Mr. Mackey bears the burden of proof under § 2254(d). See Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         The Court's inquiry is straightforward “when the last state court to decide a prisoner's federal claim explains its decision on the merits in a reasoned opinion.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). “In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.” Id. When the last state court decision on the merits “does not come accompanied with those reasons, ” . . . the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale [and] presume that the unexplained decision adopted the same reasoning.” Id. The presumption may be rebutted “by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.” Id.

         The threshold question the Court must answer under § 2254(d)(1) is whether Mr. Mackey 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 [(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 ...

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