United States District Court, D. Colorado
BRIAN C. STRAUB, Applicant,
BARRY GOODRICH, BCCF Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER ON APPLICATION FOR WRIT OF HABEAS
William J. Martínez United States District Judge
matter before the Court is an Amended Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Docket
No. 4), filed pro se by Applicant, Brian C. Straub.
Upon consideration of Respondents' Answer (Docket No.
68), Applicant's Reply (Docket No. 69), and the state
court record, the Court denies the Amended Application.
2, 2008, Applicant was convicted of aggravated robbery and
second-degree kidnapping in Denver District Court No.
07CR2494. (Docket No. 1 at 1-2). He was sentenced to
consecutive 10-year terms for the offenses. (Id. at
convictions were affirmed on direct appeal in People v.
Brian C. Straub, No. 08CA1587 (Colo.App. March 8, 2012)
(unpublished) (Straub I). (Docket No. 4 at 29-44).
The Colorado Supreme Court denied his petition for certiorari
review on January 7, 2013. (Id. at 50). Applicant
did not file a petition for certiorari review in the United
States Supreme Court.
initiated this federal habeas proceeding on January 9, 2014.
(Docket No. 1). He filed an Amended Application on January
30, 2014 (Docket No. 4) asserting the following claims:
1. The prosecutor violated Applicant's due process rights
under Brady v. Maryland, 373 U.S. 83 (1963), by
failing to disclose:
(a) The existence of a database of vehicle license plate
numbers entering and leaving Denver International Airport
(DIA) parking facilities, which, had it been reviewed prior
to trial, would have shown that a vehicle registered to
Applicant and his father entered DIA at the approximate time
of the robbery, which in turn would have corroborated
Applicant's alibi defense (Docket No. 4 at 4, 9-13);
(b) Criminal histories of three prosecution witnesses
(id. at 4, 13-14).
prosecutor engaged in misconduct, in violation of due process
(a) suggesting through cross-examination of defense witnesses
and in rebuttal closing argument, that Applicant had the
burden of proving his innocence (id. at 5, 14-21);
(b) commenting, during cross-examination of Applicant, on
Applicant's invocation of the Fifth Amendment privilege
of remaining silent (after speaking with police)
(id. at 17).
Trial counsel was constitutionally ineffective in failing to:
(a) investigate the license plate database at DIA, which
counsel knew about prior to trial (id. at 5, 22-23);
(b) object to the prosecution's late disclosure of the
database (id. at 22);
(c) investigate the criminal backgrounds of three prosecution
witnesses (id. at 5-6, 23-24);
(d) adequately prepare to undermine or rebut the
prosecution's evidence that DNA in a ski mask found at
the scene matched Applicant's DNA (id. at 6,
(e) object to prosecution questions of alibi witnesses MH and
SF, which suggested that their lack of corroboration for
their alibi testimony undermined the credibility of their
testimony (id. at 25);
(f) object to prosecution questions and argument suggesting
Applicant had a burden to prove his innocence (id.
(g) request a curative instruction or a mistrial after
Applicant's burden-shifting objection to the
prosecution's closing argument was overruled
(h) rebut the prosecution's suggestion that alibi
witnesses had not provided accurate contact information to,
or otherwise cooperated with, the prosecution (id.
September 30, 2014, Senior District Judge Lewis T. Babcock
issued an Order Staying Case pending Applicant's
exhaustion of state court remedies for the ineffective
assistance of counsel claims asserted in the Amended
Application. (Docket No. 18).
notified the Court on September 13, 2017, that the Colorado
Court of Appeals had affirmed the state district court's
denial of post-conviction relief in People v. Brian C.
Straub, No. 15CA153 (Colo.App. Sept. 7, 2017)
(unpublished) (Straub II). (Docket No. 39 at 33-62).
The case was randomly assigned to the undersigned (Docket No.
55), and the Court issued an Order to Dismiss in Part and for
Answer on December 27, 2017. (Docket No. 57). In the December
27 Order, the Court dismissed claim 2(b) of the Amended
Application as procedurally barred. (Id. at 9-10).
The Court further determined that one of the allegations in
sub-claim 3(g) (counsel was ineffective in failing to request
a mistrial) was procedurally defaulted, but deferred ruling
on whether Applicant had shown cause to excuse the procedural
default, pending receipt of the state court record and
Respondents' Answer on the merits. (Id. at
12-14). The parties thereafter filed briefing on the merits
of the remaining claims.
28 U.S.C. § 2254(d)
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;
(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). The applicant bears the burden of
proof under' 2254(d). See Woodford v.
Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
may be adjudicated on the merits in state court even in the
absence of a statement of reasons by the state court for
rejecting the claim. Harrington v. Richter, 562 U.S.
86, 98-99 (2011). In particular, “determining whether a
state court's decision resulted from an unreasonable
legal or factual conclusion does not require that there be an
opinion from the state court explaining the state court's
reasoning.” Id. at 98. Even “[w]here a
state court's decision is unaccompanied by an
explanation, the habeas petitioner's burden still must be
met by showing there was no reasonable basis for the state
court to deny relief.” Id. at 98. Thus, when a
state court rejects a federal claim without expressly
addressing that claim, a rebuttable presumption arises that
the federal claim was adjudicated on the merits. See
Johnson v. Williams, 568 U.S. 289, 301 (2013).
court reviews claims of legal error and mixed questions of
law and fact pursuant to 28 U.S.C. § 2254(d)(1). See
Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The
threshold question the court must answer under'
2254(d)(1) is whether the applicant 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
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). “The word 'contrary' is commonly
understood to mean 'diametrically different,
'”opposite in character or nature,' or
>mutually opposed., ” Williams, 529 U.S. at
405 (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 to the facts. Id. at 407-08.
Additionally, we have recognized that an unreasonable
application may occur if the state court either unreasonably
extends, or unreasonably refuses to extend, a legal principle
from Supreme Court precedent to a new context where it should
House, 527 F.3d at 1018.
federal court's inquiry pursuant to the
“unreasonable application” clause is an objective
one. See Williams, 529 U.S. 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, 468
F.3d at 671. In addition,
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.
Harrington, 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.
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 Harrington, 562 U.S. at 88
(stating that “even a strong case for relief does not
mean the state court's contrary conclusion was
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.
Harrington, 562 U.S. at 102.
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, 131 S.Ct. 1388,
court reviews claims asserting 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). The court “must
defer to the state court's factual determinations so long
as ‘reasonable minds reviewing the record might
disagree about the finding in question.'” Smith
v. Duckworth, 824 F.3d 1233, 1241 (10th Cir. 2016)
(quoting Brumfield v. Cain, ___U.S.___, 135 S.Ct.
2269, 2277 (2015)). Nevertheless, “if the petitioner
can show that ‘the state courts plainly
misapprehend[ed] or misstate[d] the record in making their
findings, and the misapprehension goes to a material factual
issue that is central to petitioner's claim, that
misapprehension can fatally undermine the fact-finding
process, rendering the resulting factual finding
unreasonable.'” Id. (alterations in
original) (internal quotation marks and citation omitted).
to' 2254(e)(1), the court presumes that the state
court's factual determinations are correct and the
petitioner 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-BEl v. Dretke, 545 U.S. 231, 240 (2005)
(quoting Miller-BEl v. Cockrell, 537 U.S. 322, 340
claim was not adjudicated on the merits in state court, the
Court must review the claim de novo and the
deferential standards of § 2254(d) do not apply. See
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).
Pro Se Litigant
is proceeding pro se. The court, therefore,
“review[s] his pleadings and other papers liberally and
hold[s] them to a less stringent standard than those drafted
by attorneys.” Trackwell v. United States, 472
F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see
also Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, a pro se litigant's “conclusory
allegations without supporting factual averments are
insufficient to state a claim on which relief can be
based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). A court may not assume that an applicant
can prove facts that have not been alleged, or that a
respondent has violated laws in ways that an applicant has
not alleged. Associated Gen. Contractors of Cal., Inc. v.
Cal. State Council of Carpenters, 459 U.S. 519, 526
(1983). Pro se status does not entitle an applicant
to an application of different rules. See Montoya v.
Chao, 296 F.3d 952, 957 (10th Cir. 2002).
State Trial Court Proceedings
presented two theories of defense at trial: (1) alibi-he was
at DIA with a friend at the “exact time” of the
robbery (State Court Record (“R.”), 4/28/08 Trial
Tr. at 88-89 (defense opening statement)); and, (2) the
police failed to investigate alternate suspects-the two
employees who were working at the time of the robbery (M.B.
and C.B.), and a third person (R.C.) who was Applicant's
housemate and a former employee (id. at 87-88).
following evidence was presented at trial. At approximately
2:00 p.m. on April 21, 2006, a masked gunman robbed the
Coyote Ugly Saloon, a bar in downtown Denver located within
the Denver Pavilions mall. (R., 4/28/08 Trial Tr., Melissa
Bynens testimony, at 188-201; 4/29/08 Trial Tr. Chad Bryan
testimony, at 498-508). Two employees, M.B. and C.B. were
present in the bar at the time of the robbery. The robber
pointed a gun at C.B.'s head and demanded that M.B. give
him the bag containing approximately $15, 000 of the
bar's cash receipts that M.B. had intended to deposit at
the bank that afternoon. (Id.). Despite the
robber's efforts to conceal his identity by wearing a ski
mask and using a fake accent, M.B. and C.B. recognized the
robber as Applicant, a former manager of the bar with whom
both had worked. (Id.). M.B. testified that she
recognized Applicant's physique, mannerisms, and
“familiar presence.” (R., 4/28/08 Trial Tr.,
Bynens testimony, at 192-93). C.B. testified that he
recognized Applicant by his height and body type, and also
because he had heard Applicant use the same fake accent when
they worked together. (R., 4/29/08 Trial Tr., Bryan
testimony, at 501, 503). M.B. and C.B. initially thought that
Applicant was playing a joke on them. M.B. testified,
“I just didn't understand what was going on. Like -
felt like I was on Punk'd or something . . . .”
(R., 4/28/08 Trial Tr., Bynens testimony, at 197). M.B.
further testified that immediately after the robber left, she
was scared, but still thought he might come back and say
“Gotcha!” (Id. at 199-200). C.B.
testified that he was so convinced it was a joke that, even
as the robber held a gun to the back of his head, he grabbed
straws from the bar and threw them over his shoulder at the
person whom he recognized as Applicant. (R., 4/30/08 Trial
Tr., Bryan testimony, at 503-04). However, after the robber
left the bar with the money and did not return, the bar
employees realized it was not a hoax and called 911.
(Id. at 507; 4/28/08 Trial Tr., Bynens testimony, at
police officer who responded to the scene retrieved a black
ski mask that had been discarded on the stairs outside the
back entrance to the bar. (R., 4/28/08 Trial Tr., Officer
Trent Tatum testimony, at 377; People's Ex. 52). A
surveillance videotape from the interior of the Coyote Ugly
showed the robber leaving the bar at 2:02 p.m. (R., 4/28/08
Trial Tr., Detective Alfonso Cervera testimony, at 154-55;
Bynens testimony, 202-03; People's Ex. 40). Surveillance
video footage taken from outside of the Denver Pavilions
showed a man matching the robber's description leaving
the shopping center with a trash bag at 1:53 p.m., and a
police car arriving at the back door of the Coyote Ugly at
2:02 p.m. (R., 4/28/08 Trial Tr., Detective Cervera
testimony, at 141-44; People's Ex. 49). Applicant could
not be positively identified as the robber from the images on
the video surveillance tapes. (R., 4/28/08 Trial Tr., Cervera
testimony, at 143, 156-57).
days after the robbery, Applicant voluntarily provided police
investigators with fingerprints and a DNA sample. (R.,
4/29/08 Trial Tr., Cervera testimony, at 559-62). Applicant
was not told that he was a suspect in the robbery and he
informed police that he planned to leave the country for a
military tour in Iraq. (4/30/08 Trial Tr., Brian Straub
testimony, at 777-78, 790).
DNA sample matched the DNA taken from inside the ski mask
police found outside the bar after the robbery. (R., 4/30/08
Trial Tr., Elizabeth Hewitt testimony, at 633-37; Sylvia
Thurmond testimony, at 648, 661). An arrest warrant was
issued and Applicant was arrested in April 2007, after he
returned from Iraq. (4/29/08 Trial Tr., Cervera testimony, at
562-63; 4/30/08 Trial Tr., Straub testimony, at 790).
the defense case, several witnesses testified in support of
Applicant's alibi defense. One witness testified that he
and Applicant belonged to a Brazilian martial arts group and,
in connection with an annual martial arts event, Applicant
was to pick up two visiting masters at DIA on April 21, 2006,
whose flights arrived at 1:50 p.m. and 2:00 p.m. (R., 4/30/08
Trial Tr., Robert McNaughton testimony, at 678-688). Another
witness testified that he and Applicant were running errands
together in Denver on April 21 and then went to DIA to pick
up the masters. (R., 4/30/08 Trial Tr., Michael Hove
testimony, at 739). In response to defense counsel's
query about what time the two men drove to DIA, the witness
responded: “I know the no-later-than time was 2
o'clock to be there to pick them up.”
(Id., Hove testimony, at 740). An additional witness
testified that Applicant met him at the DIA baggage claim
area on the afternoon of April 21 and that his flight was
“on time.” (Id., Sebastio Felix
testimony, at 705-08).
also testified at trial. He told the police during his
initial interview that he went to DIA at approximately 1:30
p.m. to pick up the Brazilian martial arts masters.
(Id., Straub testimony, at 782). At trial, he stated
that he arrived at DIA “around 2:00 o'clock”
and that one of the visiting masters was waiting for him when
he arrived. (Id. at 804).
the prosecution's rebuttal case, a detective testified
that because he did not find a vehicle registered to
Applicant in the Colorado motor vehicle registration
database, he was unable to use the DIA license plate index to
verify the time Applicant arrived at DIA on the day of the
robbery. (R., 4/30/08 Trial Tr., Detective Richard Polack
testimony, at 811-12). The detective further testified that
the drive from downtown Denver to DIA at takes approximately
25-27 minutes. (Id. at 812).
Applicant's then housemate and one of the
“alternate suspects” identified by the defense,
testified for the prosecution that he drove to Houston on the
day of the robbery; that Applicant owned a handgun similar to
the one he saw the robbery carrying on the video surveillance
tape from inside the bar; and, that he, Applicant, M.B. and
C.B. were all friends. (4/29/08 Trial Tr., Ross Chacon
testimony, at 404-419). Applicant also testified that R.C.
left for Texas the morning of the robbery. (R., 4/30/08 Trial
Tr. at 801-02). R.C. is slightly taller and of broader build
than the Applicant. (R., 4/29/08 Trial Tr., Bynens testimony,
at 317-18; id., Bryan testimony, at 517).
prosecutor argued in closing that the evidence showed beyond
a reasonable doubt Applicant was the robber. (R., 4/30/08
Trial Tr. at 835-838). Defense counsel argued in closing that
Applicant was framed by M.B., C.B. and R.C. (id. at
843-860) and that “the evidence is clearly
uncontroverted that [Applicant] was at DIA when it
happened.” (Id. at 860). In rebuttal, the
prosecution contended that there was no credible evidence to
support Applicant's alternate suspect theory
(id. at 864-66), and that “[t]here was plenty
of time for the defendant to do the crime and get to the
airport.” (Id. at 868).
trial, Applicant filed a motion for new trial under Colorado
law based on newly discovered evidence. (R., Court File, at
107). In the motion, Applicant stated that the defense
learned about the existence of a DIA license plate index on
the last day of trial, when the detective mentioned it during
the prosecution's rebuttal case. (Id. at 108).
Applicant further stated that he was unaware of the
documentary evidence before trial because he was informed
that any surveillance images from DIA had been destroyed.
(Id.). Applicant argued that the DIA license plate
index from the date of the robbery showed that a vehicle
registered in his name arrived at the DIA parking lot at 2:31
p.m.; surveillance images taken at the bar showed the robber
leaving at 2:02 p.m.; and, that he could not possibly have
driven from downtown Denver to DIA in 29 minutes.
(Id. at 108-111). The attachments to Applicant's
motion established that there was a car registered jointly to
Applicant and his father at the time of the robbery, and the
DIA license plate index database reflected its arrival at DIA
at 2:31 p.m. (Id. at 115-116, 118). Applicant also
provided affidavits from several persons who stated that the
duration of the drive from downtown Denver to DIA in the
middle of the afternoon is 31-39 minutes. (Id. at
trial court denied the motion without a hearing, ruling that
defense counsel failed to exercise diligence in discovering
all possible evidence that was favorable to Applicant, and
that the motion failed to show that the newly discovered
evidence probably would have resulted in an acquittal. (R.,
6/16/08 Hrg. Tr. at 900-01).
Analysis of Claims
Sub-claims 1(a) and 1(b)
contends in claim 1 that the prosecution violated his due
process rights under Brady v. Maryland, 373 U.S. 83
(1963), by failing to disclose: (a) the existence of a
database of vehicle license plate numbers entering and
leaving DIA parking facilities, that, had it been reviewed
prior to trial, would have shown that a vehicle registered to
Applicant and his father entered DIA at the approximate time
of the robbery, which in turn would corroborate
Applicant's alibi defense (Docket No. 4 at 4, 9-13); and,
(b) the criminal histories of three prosecution witnesses
(id. at 4, 13-14).