United States District Court, D. Colorado
KENNETH D. MACKEY, Applicant,
MATTHEW HANSON and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER ON APPLICATION FOR WRIT OF HABEAS
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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.
STANDARDS OF REVIEW
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
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;
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).
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.”
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.
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.
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 ...