Freels v. Long

          ORDER ADOPTING JULY 25, 2019 RECOMMENDATION OF THE MAGISTRATE JUDGE AND DENYING WRIT OF HABEAS CORPUS

          WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE

         Plaintiff Jennifer Freels (“Freels”) is an inmate in the custody of the Colorado Department of Corrections. Freels seeks a writ of habeas corpus under 28 U.S.C. § 2254, claiming that certain alleged errors during her trial proceedings in state court rendered her subsequent conviction unconstitutional. (ECF No. 1.) On July 25, 2019, United States Magistrate Judge Scott T. Varholak issued a recommendation (“Recommendation”) that the Court review Freels's contentions de novo (as opposed to reviewing them under the deferential standard that § 2254 normally requires), but that Freels's petition should be denied on its merits. (ECF No. 34.) Freels filed a timely objection (“Objection”). (ECF No. 35.)^[1] Defendants filed no response, nor any objection to the portions of Judge Varholak's reasoning that are unfavorable to them.

         For the reasons set forth below, the Court agrees with Judge Varholak that Freels is not entitled to habeas relief. Accordingly, her application for such relief is denied and this matter is terminated.

         I. LEGAL STANDARDS

         A. Section 2254 Standard

         Freels seeks a writ of habeas corpus under 28 U.S.C. § 2254(d):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(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.

         This statutory scheme can be broken out into a series of questions:

1. Is the petitioner in custody pursuant to the judgment of a state court?^[2]

2. Was the claim on which the petitioner bases his or her petition raised in his or her state appellate or post-conviction proceedings?^[3]

3. Did the state court's decision on the petitioner's claim contradict or unreasonably apply federal law as established clearly by the United States Supreme Court? Or, alternatively, did the state court's decision on the petitioner's claim rely on an unreasonable determination of facts in light of the evidence presented to the state court?

         A decision is “contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States” if “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). “A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if 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.” Id. at 406.

         As for the “unreasonable application” prong, it applies when “the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case, ” or “the state court either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407. A state court's decision is “unreasonable” in this sense “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).

         If a state court decision runs afoul of these standards, the applicant is not automatically entitled to a writ of habeas corpus. Rather, the Court must then go to the merits of the applicant's claim, without deference to the decision(s) of the state court. See, e.g., Panetti v. Quarterman, 551 U.S. 930, 948 (2007) (“As a result of [the state court's] error, our review of petitioner's underlying incompetency claim is unencumbered by the deference [§ 2254] normally requires.”). And harmless error analysis may also apply, so long as the error was not “structural” (i.e., so fundamental that no inquiry into harm is needed). See Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006).

         B. Rule 72(b) Standard of Review

         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” An objection to a recommendation is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it “enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” Id. In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.

         In the absence of a timely and specific objection, “the district court may review a magistrate . . . [judge's] report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)); see also Fed. R. Civ. P. 72 Advisory Committee's Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record.”).

         II. BACKGROUND

         Except in two instances that will be discussed below, Freels does not object to the Recommendation's recitation of the relevant background. The Court has discovered no clear error in that recitation and therefore treats the unobjected-to portions as undisputed. The Court finds the following summary adequate for present purposes, with additional details to be discussed in the Analysis section, below.

         On November 2, 2007, Freels shot her husband in the head at their home in Northglenn, Colorado, killing him instantly. (ECF No. 34 at 2; see also Register of Action for Adams County No. 2007-CR-3399 (“Register of Action”), at 1.)^[4] She admitted to the shooting but asserted self-defense. (ECF No. 34 at 2.) The Hon. Mark D. Warner, Adams County (Colorado) District Judge, presided over her prosecution. (Register of Action at 3.) At trial in August 2008, the jury hung and the court declared a mistrial. (ECF No. 34 at 2; Register of Action at 10.)

         In preparation for the second trial, Freels herself filed a motion for new counsel because she believed her defense attorneys were providing ineffective assistance by not allowing her to fully testify regarding the circumstances that prompted Freels to shoot her husband. (ECF No. 34 at 2; Register of Action at 12.) Judge Warner held an in camera hearing on that motion in mid-October 2008 and denied it, so Freels elected to discharge her counsel and proceed pro se. (Id. at 12-13.) Judge Warner appointed a new defense attorney, Mr. Jeffrey Doniger, as advisory counsel. (Id. at 14.)

         Ten days later, Judge Warner sua sponte reconsidered his handling of Freels's motion for new counsel. He concluded that he should have found “the functional equivalent” of a complete breakdown in communication between Freels and her former attorneys, and so he should have granted the motion and appointed new counsel. (Id.) He therefore changed his previous denial of the motion to a grant, and converted Mr. Doniger from advisory counsel to appointed counsel. (Id.) At a hearing shortly afterward, Freels confirmed that she accepted Mr. Doniger as her new attorney. (ECF No. 34 at 2-3.) Judge Warner set a final pretrial conference for March 25, 2009, and a new trial date of March 30, 2009. (Register of Action at 14.)

         On March 24, 2009-a day before the final pretrial conference-Judge Warner held a hearing on a motion in limine and on a new request by Freels to proceed pro se with advisory counsel. (Id. at 16.) She also requested a continuance of the trial so she could be better prepared. (Id.) Judge Warner reserved his ruling on that issue until the final pretrial conference the next day. (Id.) There, he denied Freels's request, finding that it was timed for purposes of creating delay and gaining a tactical advantage. (ECF No. 34 at 3-4.) Against Mr. Doniger's advice, Freels then waived her right to a jury trial. (Id. at 4; Register of Action at 16.)^[5]

         A trial to the court began on March 30, 2009, with Mr. Doniger continuing to represent Freels. (ECF No. 34 at 4.) The evidence “overwhelmingly” suggested that Freels's husband died from a “contact [i.e., point-blank] gunshot wound to the back of his head, ” casting serious doubt on Freels's story that her husband “was threatening her with a knife and that she only acted in self-defense.” (Id. (internal quotation marks omitted).)^[6] Judge Warner found Freels guilty of first-degree murder and imposed a mandatory sentence of life without parole. (Id.)

         Freels appealed Judge Warner's denial of her request to represent herself to the Colorado Court of Appeals (“CCA”). (Id.) In an unpublished disposition dated June 30, 2011, the CCA affirmed Judge Warner, but on alternate grounds. Instead of upholding Judge Warner's decision that Freels's request had been made to create delay, the CCA said that Freels had not clearly and unequivocally demanded to proceed pro se, and so was not entitled to proceed pro se under the relevant case law. (ECF No. 12-4 at 15- 21.)

         After the Colorado Supreme Court denied review of the CCA decision, Freels began state postconviction proceedings. (ECF No. 34 at 5.) She argued that Mr. Doniger had been ineffective for, as relevant here, failing to advise her that Judge Warner might deny her self-representation request if not timely presented, and failing to timely bring the self-representation issue to Judge Warner's attention. (Id.)^[7] The Hon. Robert W. Kiesnowski, Adams County District Judge, presided over Freels's postconviction proceedings at the trial court level. (See Postconviction Review Order (“PCR Order”) at 16.)^[8] He took testimony from Freels and Mr. Doniger and found Freels not credible to the extent she asserted that she had been discussing self-representation with Mr. Doniger throughout the five months between his appointment by Judge Warner and the week before trial. (Id. at 10-12.) Rather, said Judge Kiesnowski, Freels's “decision to represent herself” had been ...