Johnston v. Hansen

          ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

          R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE.

         The 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 Application.

         I. Background

         In 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).

         In Mr. 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).

         Mr. 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).

         In a 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).

         II. Legal Standards

         Title 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; 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). 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).

         The 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. 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 under § 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 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).

         “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.” 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. 2006). Furthermore,

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.

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).

         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 (“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.

         The 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).

         Finally, 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).

         III. Analysis

         A. Claim Three

         Mr. 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).^[1]

         It was 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. ...