United States District Court, D. Colorado
ORDER DENYING APPLICATION FOR WRIT OF HABEAS
BROOKE JACKSON UNITED STATES DISTRICT JUDGE.
matter before the Court is an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254
(“Application”) (ECF No. 1), filed pro
se by Applicant Gordon Johnston. Respondents have filed
an Answer (ECF No. 20) and Mr. Johnston has filed a Reply
(ECF No. 21). After considering the parties' filings,
along with the state court record, the Court will deny the
November of 2011, Mr. Johnston was convicted by a jury in
Arapahoe County District Court Case No. 2011CR504 of one
count of distribution of a schedule I controlled substance,
one count of distribution of a schedule I substance (25 to
450 grams), and conspiracy to distribute a schedule I
controlled substance. (ECF Nos. 11- 1 at 13; 11-5 at 2). He
then was adjudicated a habitual criminal. (ECF Nos. 11-1 at
11; 11-5 at 2).
Johnston's direct appeal proceeding, the Colorado Court
of Appeals summarized the relevant facts as follows:
The evidence showed that Johnston twice sold the schedule I
controlled substance 3, 4-methylenedioxymethamphetamine
(MDMA) to a confidential police informant in the course of
controlled-buy operations. During each transaction, the
police supplied the informant with marked currency and
outfitted him with a wire. The informant met a middleman,
Matthew Engle, at Engle's car in a retail center parking
lot. Johnston was present in his own car. The informant gave
Engle the money, which Engle took to Johnston's car and
exchanged for MDMA. Engle then returned to his own car and
gave the drugs to the informant. Between the two buys,
Johnston sold 400 tablets of MDMA (100 tablets weighing 26.56
grams in the first transaction, and 300 tablets weighing
75.99 grams in the second).
The informant and Engle testified against Johnston at trial
consistent with the prosecution's allegations.
Johnston's theory of defense was that Engle had used
Johnston as a decoy while Engle himself sold the MDMA
directly to the informant. Johnston was convicted as charged
and subsequently adjudged to be a habitual criminal.
See Ch. 200, sec. 12, § 18-18-405(3)(a)(I),
2004 Colo. Sess. Laws 637; Ch. 424, sec. 3, §
18-18-405(2)(a)(I)(A), 2003 Colo. Sess. Laws 2683; Ch. 306,
sec. 1, § 18-18-405(1)(a), 2002 Colo. Sess. Laws 1270;
18-1.3-801, C.R.S. 2014. He received a controlling sentence
of sixty-four years in prison, which was mandated by statute.
See § 18-1.3-801(2)(a)(I)(A).
People v. Gordon Lamay Johnston, No. 12CA0893
(Colo.App. February 12, 2015) (unpublished) (ECF No. 11-5 at
2-3). The judgment of conviction was affirmed on direct
appeal on February 12, 2015 (ECF No. 11-5), and Mr. Johnston
petitioned for a writ of certiorari in the Colorado Supreme
Court, which was denied (ECF No. 11-6). Mr. Johnston then
filed a motion for sentence reconsideration and a
postconviction motion pursuant to Colo. R. Crim. P. 35(c),
both of which were denied by the district court. (ECF Nos.
11-1 at 8-9; 11-2). Mr. Johnston appealed the denial of the
Rule 35(c) motion, and the Colorado Court of Appeals affirmed
the denial. (ECF No. 11-9). The Colorado Supreme Court denied
Mr. Johnston's subsequent petition for certiorari review.
(ECF No. 11-10).
Johnston initiated this § 2254 proceeding on December
20, 2018, asserting four claims in his
Application. (ECF No. 1). In their Pre-Answer Response,
Respondents did not challenge the timeliness of the
Application under the one-year limitation period set forth in
28 U.S.C. § 2244(d). (ECF No. 11 at 7). Respondents
argued, however, that certain of Mr. Johnston's claims
were procedurally defaulted in the state courts and,
therefore, those claims were barred from merits review by
this Court. (Id. at 7-12).
March 19, 2019, Order to Dismiss in Part and for Answer, this
Court determined that claims three and four were properly
exhausted in the state courts, and dismissed claims one and
two as procedurally defaulted. (ECF No. 15). Respondents were
ordered to file an Answer, and Mr. Johnston was afforded the
opportunity to file a Reply. (Id.). Respondents
filed an Answer on May 17, 2019 (ECF No. 20), and Mr.
Johnston filed a Reply on June 14, 2019 (ECF No. 21). Upon
entry of the March 19, 2019, Order to Dismiss in Part and for
Answer (ECF No. 15), the following two claims remain at issue
in this action:
Claim Three: Mr. Johnston's claim that his
“Sixth Amendment rights to effective assistance of
counsel were violated” by his trial counsel's
performance (ECF No. 1 at 15);
Claim Four: Mr. Johnston's claim that his
“Sixth Amendment rights were violated by his direct
appellate counsel who provided ineffective assistance”
(id. at 18).
28 U.S.C. § 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
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;
(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). Review under the AEDPA serves only
as “a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error
correction through appeal.” Harrington v.
Richter, 562 U.S. 86, 102-03 (2011) (quotation marks and
citation omitted). Mr. Johnston bears the burden of proof
under § 2254(d). See Woodford v. Visciotti, 537
U.S. 19, 25 (2002) (per curiam).
threshold question under § 2254(d)(1) is whether Mr.
Johnston 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 under §
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 the state
court (a) “applies a rule that contradicts the
governing law set forth in [Supreme Court] cases, ” or
(b) “confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a result different from [Supreme
Court] precedent.” Id. at 405-06. “The
word ‘contrary' is commonly understood to mean
‘diametrically different,' ‘opposite in
character or nature,' or ‘mutually
opposed.'” Id. at 406 (citation omitted).
The state appellate court is not required to cite to the
clearly established Supreme Court case law, or even be aware
of it, so long as nothing in the state appellate court
decision contradicts that law. Early v. Packer, 537
U.S. 3, 8 (2002).
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.”
Williams, 529 U.S. at 407-08. The Court's
inquiry pursuant to the “unreasonable
application” clause is an objective inquiry. See
Id. 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 v. Boone, 468 F.3d 665, 671 (10th Cir.
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]
Richter, 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. 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
(“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.
Court reviews claims of 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
the 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), the Court
must presume that the state court's factual
determinations are correct and Mr. Johnston 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)). “As the plain
terms of the statute indicate, ” review under §
2254(d)(2) is limited to the evidence contained in the state
court record. Hooks v. Workman, 689 F.3d 1148, 1163
(10th Cir. 2012).
the Court's analysis is not complete even if Mr. Johnston
demonstrates the existence of a constitutional violation.
“Unless the error is a structural defect in the trial
that defies harmless-error analysis, [the Court] must apply
the harmless error standard of Brecht v. Abrahamson,
507 U.S. 619 (1993), . . . .” Bland v.
Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006); see
also Davis v. Ayala, 135 S.Ct. 2187, 2197 (2015)
(“For reasons of finality, comity, and federalism,
habeas petitioners are not entitled to habeas relief based on
trial error unless they can establish that it resulted in
actual prejudice.”) (internal quotation marks omitted);
Fry v. Pliler, 551 U.S. 112, 121-22 (2007)
(providing that a federal court must conduct harmless error
analysis under Brecht any time 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 the Court concludes 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 [the Court is] in virtual equipoise as to the
harmlessness of the error.” O'Neal, 513
U.S. at 435. The Court makes this harmless error
determination based upon a review of the entire state court
record. See Herrera v. Lemaster, 225 F.3d 1176, 1179
(10th Cir. 2000).
Johnston contends in Claim Three that his trial counsel was
ineffective. Specifically, he argues that counsel performed
deficiently by failing to: (1) move to suppress drug evidence
recovered from a third party, (2) object to the jury
reviewing audiotape evidence in the jury room, (3) object to
prosecutorial misconduct regarding the alleged retraction of
a plea offer, and (4) seek the recusal of the
prosecutor's office regarding the plea offer retraction.
(ECF No. 1 at 15-18).
clearly established when Mr. Johnston was convicted that a
defendant in a criminal case has a Sixth Amendment right to
the effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668 (1984). Under
Strickland, to establish that counsel was
ineffective, Mr. Johnston must demonstrate both that
counsel's performance fell below an objective standard of
reasonableness and that counsel's deficient performance
resulted in prejudice to his defense. See id. at
687. If Mr. ...