KRISTEN L. MIX, Magistrate Judge.
This case is before this Court pursuant to the Order of Reference entered March 8, 2015, and the parties' unanimous consent to disposition of this action by a United States Magistrate Judge [##16, 18]
Applicant, Anthony R. Murphy, a state prisoner in the custody of the Colorado Department of Corrections, currently is incarcerated at a community corrections center in Denver, Colorado. Applicant initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, in which he challenges the validity of his conviction and sentence in Jefferson County District Court Case No. 09CR2523.
On January 6, 2015, Magistrate Judge Gordon P. Gallagher directed Respondents to file a Pre-Answer Response addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). Respondents submitted a Pre-Answer Response on February 9, 2015 [#11]. Applicant filed a Reply on March 23, 2015 [#12].
On April 14, 2015, I issued an Order dismissing the Application in part and directing Respondents to file a Response as to the remaining claims. Respondents submitted a Response on May 8, 2015 [#26]. No reply has been filed.
The Court must construe the Application liberally because Applicant 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 does not "assume the role of advocate for the pro se litigant." See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the habeas corpus action.
Evidence at trial established that a confidential police informant called a man he knew as "Rick," a drug dealer, and asked to buy cocaine. The dealer told the informant where to meet his deliveryman. The dealer described the deliveryman and the car he would be driving. Applicant, who met the description given by the dealer, arrived at the designated location in a car that matched the dealer's description. The informant entered the car. Before any drugs or money exchanged hands, police surrounded the car and arrested Applicant. Twelve grams of crack cocaine, subdivided into twenty-seven individual packets, were found inside the car in the driver's side door pocket and on the floor in front of the driver's seat. All of the packets appeared to be roughly the same weight.
On March 8, 2010, Applicant proceeded to trial on one charge: possession with intent to distribute a schedule II controlled substance, with a prior conviction. After a two day trial, the jury found Applicant guilty; he later was sentenced to 16 years imprisonment. Applicant filed a direct appeal to the Colorado Court of Appeals (CCA) raising three claims [#11-5]. The CCA affirmed his conviction in People v. Murphy, (Colo. App. No. 10CA1552, May 10, 2012) (unpublished) (Murphy I) [#11-9]. He filed a petition for certiorari in the Colorado Supreme Court (CSC) [#11-7], which was denied by that court on September 17, 2012 [#11-6].
On November 30, 2011, Applicant filed a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure, which was denied without a hearing. Applicant appealed and on March 13, 2014, the CCA affirmed the lower court. People v. Murphy (Colo. App. No. 13CA0233, March 13, 2014) (unpublished) (Murphy II) [#11-4]. Applicant's petition for certiorari was denied by the CSC on November 24, 2014 [#11-2].
Applicant filed the instant action on December 19, 2014 wherein he raised the following claims, as reorganized by Respondents in their Answer.
On April 14, 2015, I dismissed claims 3, 4, and 5 as procedurally barred. I directed Respondents to file an answer on the merits as to Claims 1, 2 and 6. Respondents filed their Answer on May 8, 2015 [#20]. No reply has been filed.
In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a superstate appellate court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984). "When a federal district court reviews a state prisoner's habeas [application] pursuant to 28 U.S.C. § 2254 it must decide whether the [Applicant] is `in custody in violation of the Constitution or laws or treaties of the United States.' The court does not review a judgment, but the lawfulness of the [Applicant's] custody simpliciter." Coleman v. Thompson, 501 U.S. 722, 730 (1991).
Specifically, the habeas corpus statute, 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 court adjudication:
28 U.S.C. § 2254(d). Applicant bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
The 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 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 412. Furthermore,
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). A legal principle is "clearly established" within the meaning of this provision only when it is embodied in a holding of the Supreme Court. Thaler v. Haynes, 559 U.S. 43, 47 (2010). If there is no clearly established federal law, that is the end of the Court's inquiry pursuant to § 2254(d)(1). See Waddington v. Sarausad, 555 U.S. 179, 191 (2009).
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.
House, 527 F.3d at 1018.
The Court's inquiry pursuant to the "unreasonable application" clause is an objective inquiry. 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. Furthermore,
Richter, 562 U.S. at 101 (internal quotation marks 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. 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, 131 S.Ct. 1388, 1398 (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 (stating that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable").
Richter, 562 U.S. at 103.
This deference was explained in Renico v. Lett, 599 U.S. 766 (2010) where the Supreme Court reviewed the Court of Appeals for the Sixth Circuit's grant of a writ of habeas corpus to a defendant who was retried for murder following the trial judge's grant of a mistrial after the jury had deliberated for at least four hours following a relatively short, and far from complex, trial. The Michigan Supreme Court had concluded there was no violation of the Double Jeopardy Clause because the trial court exercised its sound discretion. The federal district court granted a writ of habeas corpus and the Sixth Circuit affirmed, both concluding that the trial court's declaration of a mistrial constituted an abuse of discretion because there was no manifest necessity. The Supreme Court reversed.
Lett, 559 U.S. at 772-73. The Supreme Court further instructed:
Id. at 778, n.3 (emphasis added) (internal citation omitted). See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a `firm conviction' that the state court was `erroneous.'").
In making this determination, a federal court must accord a presumption of correctness to a state court's factual findings, which a petitioner can rebut only by clear and convincing evidence. 28 U.S.C. § 2254(e). Where a state court's factual findings are not made explicit, a federal court's "duty is to begin with the [state] court's legal conclusion and reason backward to the factual premises that, as a matter of reason and logic, must have undergirded it." Campbell v. Vaughn, 209 F.3d 280, 289 (3d Cir. 2000). In determining what implicit factual findings a state court made in reaching a conclusion, a federal court must infer that the state court applied federal law correctly. Marshall v. Lonberger, 459 U.S. 422, 433 (1982). "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)).
For federal habeas claims not adjudicated on the merits in state-court proceedings, the Court must exercise its independent judgment. McCracken v. Gibson, 268 F.3d 970, 975 (10th Cir. 2001). Any state-court findings of fact that bear upon the claim are entitled to a presumption of correctness rebuttable only by clear and convincing evidence. Hooks v. Ward, 184 F.3d 1206, 1223 (10th Cir. 1999) (applying § 2254(e)(1)'s presumption of correctness to state-court factual findings bearing upon the claim, even though the claim was not adjudicated on the merits by the state court).
In claims 1 and 2, Applicant asserts claims of ineffective assistance of counsel. The Sixth Amendment guarantees criminal defendants effective assistance of counsel. The Supreme Court has formulated a two-part test for determining whether counsel rendered constitutionally ineffective assistance: 1) counsel's performance was unreasonable; and 2) counsel's unreasonable performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong of the Strickland test requires a defendant to establish that his attorney's representation fell below an objective standard of reasonableness by committing errors so serious that he or she was not functioning as "counsel" guaranteed by the Sixth Amendment. Id. at 688. The second prong requires a defendant to demonstrate that counsel's errors deprived him of a fair trial and the result was unfair and unreliable. Id. at 689. A defendant is not entitled to relief unless he makes both showings. Id. at 687. Moreover, "[a] court need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." Id. at 694. The Strickland standard applies equally to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2002). Colorado applies the same test for ineffective assistance of counsel as the Strickland test used in federal courts. See Davis v. People, 871 P.2d 769, 772-79 (Colo. 1994).
With regard to the first criterion, counsel's effectiveness is measured objectively considering all the circumstances. Strickland, 466 U.S. at 687-88. In evaluating counsel's performance, the Court must "indulge a strong presumption" that counsel's challenged actions might be considered sound strategy under the circumstances. Id. at 689. Thus, counsel's strategic choices will not be second guessed by post hoc determinations that a different trial strategy would have fared better. The relevant inquiry is not whether counsel was prudent, appropriate, or perfect; rather, the focus is simply to ensure that the defendant received a fundamentally fair trial. Id.
With respect to the second criterion, to establish prejudice, the defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Prejudice must be evaluated in light of the totality of the evidence presented at trial and a verdict only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.
In analyzing Applicant's claims under the two-part test announced in Strickland, this Court must apply the standards set forth in 28 U.S.C. § 2254(e) concerning the presumption of correctness applicable to state court factual findings. The question of effectiveness of counsel under Strickland is a mixed question of law and fact; it requires the application of a legal standard to the historical, fact determinations. In this regard, a state court's finding that counsel had a trial strategy is a finding of fact to which the presumption applies. Bryan v. Mullin, 335 F.3d 1207, 1221 n.17 (10th Cir. 2003). Likewise, a state court's determination that a decision was a tactical one is a question of fact. Id.
The Supreme Court recently reiterated the difficulty of prevailing on an ineffectiveness claim on habeas review.
Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotations and citations omitted). The Court further instructed:
Harrington, 562 U.S. at 105 (internal quotations and citations omitted) (emphasis added).
In his first ineffective assistance claim, Applicant asserts that trial counsel failed to obtain or introduce evidence in support of applicant's "alternate theory" that he happened be at the Walmart, and happened to get into the dealer's car after the dealer exited but just before the bust. Such defense evidence included:
In addition, he claimed that his counsel rendered ineffective assistance by failing to object, on hearsay grounds, to statements by:
In its review of this claim, the CCA made the following determination with respect to these claims.
[#11-4] at 6-10.
Here, the Colorado Court of Appeals' determinations as to Applicant's ineffective assistance of counsel claims are not an unreasonable application of the Strickland standard. Specifically, in Strickland, the Supreme Court has instructed that:
Strickland, 466 U.S. at 690-691.
As noted by the Colorado Court, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
On direct appeal, the Colorado Court of Appeals (CCA) summarized the evidence supporting applicant's conviction for possession of controlled substance (cocaine) with intent to distribute as follows:
[#11-8] at 3. Simply stated, none of Applicant's allegations of ineffectiveness refute this evidence, which is more than sufficient to sustain his conviction for possession with intent to distribute.
Moreover, the failure to argue an entrapment defense did not constitute ineffective assistance. Colo. Rev. Stat. § 18-1-709 Entrapment, provides as follows.
Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender's fear of detection are used. People v. Jackson, 627 P.2d 741, 745 (Colo. 1981). In other words, the plain wording of the statute indicates that the defense of entrapment cannot be established in those cases where the police merely furnish the defendant with an opportunity to commit a crime. Id. The defense of entrapment is available only where the defendant shows that law enforcement agents, in fact, induce, instigate, and cause a criminal offense to be committed. Id.
Here, the evidence showed that Applicant met the description given by his dealer, arrived at the designated location in a car that matched the dealer's description, with a substantial amount of cocaine in the car. The simple fact that Applicant was not the targeted dealer named "Rick" does not support an entrapment defense. Moreover, this fact was presented to the jury. Accordingly, his counsel did not render ineffective assistance for failing to argue an entrapment defense.
After reviewing the record, the Court finds that the Colorado Court of Appeals applied the appropriate factors and did not reach an unreasonable conclusion. Accordingly, the conclusion of the Colorado Court of Appeals that trial counsel did not render ineffective assistance is not an unreasonable application of Supreme Court precedent, nor an unreasonable determination in light of the facts presented. Therefore, Applicant is not entitled to habeas relief on his ineffective assistance of counsel claims.
Applicant's final claim alleges a due process violation in the court's failure to have sustained a for-cause challenge to Juror K. Specifically, Applicant argues that his constitutional rights were violated when the trial court erroneously refused to excuse Juror K for cause and he was required to exhaust his peremptory challenges by using one to excuse Juror K.
The Supreme Court squarely addressed this issue in United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000) where it held that, although peremptory challenges are "auxiliary" to the right to a fair trial, they are not themselves "of federal constitutional dimension." Thus, the Court held that a defendant's use of a peremptory challenge to remove a juror he claimed should have been removed for cause does not give rise to a federal constitutional violation. Id. See also Rivera v. Illinois, 556 U.S. 148 (2009) ("Because peremptory challenges are within the States' province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution.").
In Applicant's trial, no member of the jury as finally composed was removable for cause. Thus, there was no violation of Applicant's Sixth Amendment right to an impartial jury or his Fourteenth Amendment right to due process. That he might have used the peremptory strike used against Juror K against some other juror does not raise a constitutional matter. Therefore, Applicant is not entitled to federal habeas relief on this claim.
Accordingly,
IT IS HEREBY
IT IS FURTHER
IT IS FURTHER
