R. BROOKE JACKSON, District Judge.
The matter before the Court is an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, ECF No. 6. After reviewing the pertinent portions of the record in this case, including the Application and Answer, ECF No. 25, the Court determines it can resolve the Application without a hearing, see 28 U.S.C. § 2254(e)(2); Fed. R. Governing Section 2254 Cases 8(a), and concludes that the action should be dismissed.
Applicant is a prisoner in the custody of the Colorado Department of Corrections. He currently is incarcerated at the Fremont Correctional Facility in Cañon City, Colorado, pursuant to his conviction and sentencing in State of Colorado Criminal Case No. 10CR1857. The Colorado Court of Appeals (CCA), in the denial of Applicant's direct appeal, summarized the underlying facts as follows:
People of the State of Colo. v. Magana, No. 12CA1073, 1 (Colo. App. July 3, 2014); ECF No. 12-2 at 2.
Applicant, acting pro se, initiated this 28 U.S.C. § 2254 action on February 25, 2016, by submitting an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. On March 28, 2016, pursuant to a court order, Applicant filed an Amended Application, which is the operative pleading in this action. Applicant asserts one claim in the March 28 Application as follows:
ECF No. 6 at 6.
On March 30, 2016, Magistrate Judge Gordon P. Gallagher entered an order directing Respondents to file a Pre-Answer Response and address 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) if Respondents intended to raise either or both of these defenses. Respondents filed a Pre-Answer Response, ECF No. 12, on April 19, 2016. Applicant did not reply to the Response. Respondents concede in the Pre-Answer Response that the Application is timely and the claim is exhausted. ECF No. 12 at 3 and 6. On August 22, 2016, the Court directed Respondents to file an Answer that addresses the merits of Applicant's claim. Respondents filed the Answer on October 25, 2016. See ECF No. 25. Applicant requested an extension of time to reply, which was granted. See ECF Nos. 26 and 27. Applicant, nonetheless, has failed to submit a reply.
Applicant 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) (pro se complaint held to less stringent standards than formal pleadings drafted by lawyers). 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).
Section 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).
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 pursuant to § 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). The "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). "Finality occurs when direct state appeals have been exhausted and a petition for writ of certiorari from this Court has become time barred or has been disposed of." Greene v. Fisher, 565 U.S. 34, 39 (2011) (citing Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987).
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." Williams, 529 U.S. at 412. Furthermore,
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. 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 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,
Harrington v. Richter, 562 U.S. 86, 101 (2011) (citations and internal quotation marks omitted). This 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. "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102. (citation omitted). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. at 102-03(internal quotation marks and citation omitted).
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. Furthermore,
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 a court to grant a writ of habeas corpus only if the state court decision was based on an unreasonable determination of the facts in light of the evidence presented. Pursuant to § 2254(e)(1), the Court must presume that the state court's factual determinations are correct (including the CCA), see Sumner v. Mata, 455 U.S. 591, 592-93 (1982), and Applicant bears the burden of rebutting the presumption by clear and convincing evidence, see Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997). "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)).
Finally, the Court's analysis is not complete "[e]ven if the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law." Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). "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). . . ." Id.; see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must conduct harmless error analysis under Brecht anytime 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 (citations and internal quotation mark is omitted). "[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). "In sum, a prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA." Davis v. Ayala, ___ U.S. ____, 135 S.Ct. 2187, 2199 (2015) (citing Fry, 551 U.S. at 119-120).
A claim, however, 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. Richter, 562 U.S. at 98. ("[D]etermining 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") (citations omitted). Furthermore, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99.
In other words, the Court "owe[s] deference to the state court's result, even if its reasoning is not expressly stated." Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, the Court "must uphold the state court's summary decision unless [its] independent review of the record and pertinent federal law persuades [it] that [the] result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented." Id. at 1178. "This `independent review' should be distinguished from a full de novo review of the [applicant's] claims." Id. (citation omitted). Likewise, the Court applies the AEDPA (Antiterrorism and Effective Death Penalty Act) deferential standard of review when a state court adjudicates a federal issue relying solely on a state standard that is at least as favorable to the applicant as the federal standard. See Harris v. Poppell, 411 F.3d 1189, 1196 (10th Cir. 2005). If a claim was not adjudicated on the merits in state court, and if the claim also is not procedurally barred, 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).
Applicant asserts that the trial court misapplied the test set forth in Maryland v. Craig, 497 U.S. 836, 840-856 (1990)." ECF No. 6 at 6. Applicant further asserts the record "belies" the therapist's claim that the accusatory witness was unable to reasonably communicate and the use of a CCTV was necessary. Id. Applicant further contends the therapist's testimony was insufficient within the scope of Craig. Id. Applicant also contends that the victim's testimony was likely coerced and fabricated due to extensive therapy sessions. Id. Applicant further contends that, coupled with the motives of a drug addicted mother, the credibility of the testimony was lacking and did not merit a CCTV procedure. Id. Finally, Applicant concludes the use of the CCTV prevented the jury from observing the demeanor of the alleged victim. Id.
The CCA addressed Applicant's trial court error claim as follows:
ECF No. 12-2 at 3-8.
The right of an accused to confront the witnesses against him is guaranteed by the Sixth Amendment to the United States Constitution and applies in both federal and state prosecutions. See Stevens v. Ortiz, 465 F.3d 1229, 1235 (10th Cir. 2006). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845 (1990).
The United States Supreme Court, however, has "recognized that a State's interest in the protection of minor victims of sex crimes from further trauma and embarrassment is a compelling one." Craig, 497 U.S. at 852 (internal quotation marks and citations omitted). "The trial court must hear evidence and determine whether use of the one-way circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify." Craig, 497 U.S. at 855 (citing Globe Newspaper Co. v. Superior Court of Norfolk County, 457 U.S. 596, 608-09 (1982) (compelling interest in protecting child victims does not justify a mandatory trial closure rule). The trial court must find that the child witness would be traumatized by the presence of the defendant and not just the courtroom generally. Craig, 497 U.S. at 856. The emotional distress suffered by the presence of the defendant must be more than de minimis or mere nervousness or excitement or reluctance to testify. Id. (citations and quotation marks omitted). The constitutional standard for use of a CCTV is that a child witness will suffer "serious emotional distress such that the child cannot reasonably communicate." Id. (citation and quotation marks omitted).
Finally, in Craig, the Supreme Court declined to "establish, as a matter of federal constitutional law, any such categorical evidentiary prerequisites for the use of the one-way television procedure," which in particular were to require the trial court to observe the "children's behavior in the defendant's presence" and to "explore less restrictive alternatives to the use of the one-way closed circuit television procedure." Craig, 497 U.S. at 859-60.
The Court has reviewed the transcript of the pre-trial hearing, during which the prosecution's motion to allow the victim/witness to use the CCTV to testify was considered and granted. Dec. 10, 2011 Trial Tr. After testimony by the victim's counselor
The trial court also found that the counselor in response to a question taken from the state statute stated that in her opinion the victim would be unable to reasonably communicate based on trauma, which the counselor had confirmed based on a PTSD (Post-Traumatic Stress Disorder) diagnosis. Id. The court further found based on the counselor's testimony that it is difficult for victims of familial sex assault to testify, particularly where there has been long term abuse, as was situation in this case. Id. Furthermore, the trial court relied on a specific school example, given by the counselor, where the victim shut down in the presence of a conflict that required her to tell someone about mistreatment by her teacher, to support the finding that it would be hard to imagine any more heightened conflict than being in the presence of the alleged perpetrator and to have to testify about the abuse by the perpetrator. Id.
Finally, the trial court referenced not only to state cases, but to Craig in denying any constitutional challenge based on the confrontation clause and due process. Id. at 32.
Based on the above findings, nothing set forth in Applicant's March 28 Application demonstrates how the trial court erred in allowing the victim/witness to testify via a CCTV. Applicant's claim that the trial court erroneously applied the test in Craig is contradicted by the state court record. The trial court relied on the state statute, which was found by the CCA to embody Craig and model the Maryland statute that was at issue in Craig.
The Maryland statute as pertinent to the issue in both Craig and the instant case reads as follows:
See Maryland Cts. & Jud. Proc. Code Ann. § 9-102 and Judicial Proceedings Article of the Annotated Code of Maryland (1989).
The pertinent part of the Colorado statute reads as follows:
Colo. Rev. Stat. § 16-10-402 (2005).
Given the similarity of the Maryland and Colorado statutes, and of the facts in this case to those in Craig, this Court finds the language of the Colorado statute embraces Craig. Also, the state court record unequivocally provides evidence that the requirements set forth in Craig were followed. Furthermore, Applicant's vague and conclusory claims that the victim's testimony was "likely influenced by extensive contact through therapists" . . ., coupled with the motives of a drug addicted mother," ECF No. 6 at 6, do not provide clear and convincing evidence rebutting the presumption that the state court's factual determinations are correct, as required under § 2254(e)(1).
This Court, therefore, finds that the trial court's decision to allow the victim to present testimony via CCTV was not contrary to or an unreasonable application of any clearly established rule of federal law as determined by the U.S. Supreme Court or a decision that was based on an unreasonable determination of the facts. This claim lacks merit and will be denied.
The CCA addressed Applicant's lack of evidence claim as follows:
The prosecution summed up its questioning of the counselor by asking:
ECF No. 12-2 at 8-10.
The Court has reviewed the counselor's testimony. See Dec. 20, 2011 Trial Tr. The CCA's decision sets forth with accurate specificity the counselor's diagnosis of the victim's emotional state. Applicant's vague and conclusory claim that the victim's testimony was influenced by "extensive" contact with "numerous therapists," ECF No. 6 at 6, fails to provide clear and convincing evidence that the counselor failed to demonstrate that the victim would be unable to reasonably communicate in the presence of Applicant.
The counselor's testimony provides examples of the victim's inability to discuss the abuse or to communicate about a conflict, which would result in someone getting in trouble. Also, the counselor stated that (1)Applicant is the victim's father; (2) the abuse continued for a third of the victim's life; and (3) the victim suffers from PTSD diagnosis, has distressful dreams, and does not want to return to the home where the abuse took place. This evidence, and additional findings identified in the CCA's decision, were sufficient to support the trial court's decision to allow the victim to present testimony via CCTV.
The CCA's denial of this claim was not contrary to or an unreasonable application of any clearly established rule of federal law as determined by the U.S. Supreme Court or a decision that was based on an unreasonable determination of the facts. This claim lacks merit and will be denied.
Based on the above findings, Applicant's claims lack merit and the 28 U.S.C. § 2254 Application must be dismissed.
Accordingly, it
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, ECF No. 6, is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that a certificate of appealability shall not issue because Applicant has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he must also pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
