ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

CRAIG B. SHAFFER, Magistrate Judge.

This case is before this Court pursuant to the Order of Reference entered February 9, 2015, and the parties' unanimous consent to disposition of this action by a United States Magistrate Judge.

Applicant Jason Brooks is a prisoner in the custody of the Colorado Department of Corrections. Mr. Brooks has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) ("the Application"). Respondents have filed an Answer to Application for Writ of Habeas Corpus (ECF No. 27) ("the Answer") and Mr. Brooks has filed a traverse (ECF No. 29) ("the Traverse") and a supplement (ECF No. 30) to the Traverse. After reviewing the record, including the Application, the Answer, the Traverse, the supplement to the Traverse, and the state court record, the Court FINDS and CONCLUDES that the Application should be denied and the case dismissed with prejudice.

I. BACKGROUND

Mr. Brooks is challenging the validity of his conviction and sentence in Weld County District Court case number 09CR959. The relevant factual background was described by the Colorado Court of Appeals as follows:

People v. Brooks, No. 12CA1781, slip op. at 1 (Colo. App. Mar. 6, 2014) (ECF No. 12-6 at 2). Although Mr. Brooks filed a direct appeal, he later moved to dismiss the appeal and that motion was granted on January 28, 2011. (See ECF No. 12-4.)

On February 16, 2011, Mr. Brooks filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 12-2.) Counsel was appointed to represent Mr. Brooks and counsel filed a supplement to the Rule 35(c) motion. (See ECF No. 12-3.)

(ECF No. 12-6 at 2-3.) On appeal from the trial court's order denying the Rule 35(c) motion Mr. Brooks "challenge[d] only the district court's summary dismissal of his allegation that counsel told him he could not withdraw his plea." (Id. at 3.) The Colorado Court of Appeals deemed abandoned "[a]ny issues raised in the postconviction motion but not reasserted on appeal." (Id.) On March 6, 2014, the trial court's order denying the Rule 35(c) motion was affirmed. (See id.) Mr. Brooks did not seek certiorari review in the Colorado Supreme Court.

The Application was filed on August 15, 2014, and Mr. Brooks asserts the following eight claims for relief: (1) trial counsel was ineffective "by failing to consult or employ a securities fraud, business law, or contract law expert because counsel was not proficient in the . . . applicable substantive and procedural laws of securities fraud" (ECF No. 1 at 5); (2) trial counsel was ineffective "by misadvising the applicant of the effect of his plea" (id. at 12); (3) trial counsel was ineffective "by providing inadequate representation at sentencing" (id. at 14); (4) trial counsel was ineffective and violated due process "by erroneously telling the applicant he could not withdraw his guilty plea prior to sentencing" (id. at 18); (5) the trial court violated due process "by failing to properly advise the applicant of the effect of his plea due to a deficient Rule 11 advisement" (id. at 19); (6) the trial court violated due process "by denying [the applicant] post-conviction relief based upon inaccurate and incomplete information" (id. at 25); (7) the Colorado Court of Appeals violated due process "by deciding to deny [the applicant] post-conviction relief based upon inaccurate and incomplete information" (id. at 26); and (8) trial counsel was ineffective "when the errors are considered cumulatively" (id. at 27). The Court previously entered an Order to Dismiss in Part (ECF No. 24) dismissing claims 1, 2, 3, 5, 8, and the due process portion of claim 4 as unexhausted and procedurally barred. The Court also dismissed claims 6 and 7 for failure to raise a cognizable federal constitutional issue. Therefore, only the ineffective assistance of counsel portion of claim 4 remains to be considered on the merits.

After the Court entered the Order to Dismiss in Part, Mr. Brooks filed a Motion for Leave to File an Amended Complaint (ECF No. 25) in which he seeks to provide a more complete factual basis for his remaining ineffective assistance of counsel claim. Mr. Brooks contends that he should be allowed to include additional allegations in support of his remaining claim because, as the Court noted in the Order to Dismiss in Part, the factual basis for the ineffective assistance of counsel portion of claim 4 is related to the factual basis for the ineffective assistance of counsel argument set forth in claim 2 in the Application.

The Motion for Leave to File an Amended Complaint will be denied because, as discussed in the Order to Dismiss in Part, Mr. Brooks has not exhausted state remedies with respect to claim 2 in the Application or the factual allegations that support claim 2 in the Application. Mr. Brooks may not circumvent his failure to exhaust state remedies with respect to claim 2 by incorporating the factual allegations that support claim 2 into a separate and distinct claim that counsel was ineffective.

II. STANDARDS OF REVIEW

The Court must construe the Application and other papers filed by Mr. Brooks liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

Title 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). Mr. Brooks 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 Mr. Brooks 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). 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.

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,

Harrington v. Richter, 562 U.S. 86, 101 (2011) (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, 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.

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. Brooks 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)).

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. "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).

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).

III. MERITS OF APPLICANT'S REMAINING CLAIM

Mr. Brooks contends in the ineffective assistance of counsel portion of claim 4 that trial counsel was ineffective "by erroneously telling the applicant he could not withdraw his guilty plea prior to sentencing." (ECF No. 1 at 18). Mr. Brooks specifically alleges as follows in support of this ineffective assistance of counsel claim:

(Id.) It was clearly established when Mr. Brooks was convicted that a defendant has a Sixth Amendment right to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Ineffective assistance of counsel claims are mixed questions of law and fact. See id. at 698.

To establish that counsel was ineffective, Mr. Brooks 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. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. There is "a strong presumption" that counsel's performance falls within the range of "reasonable professional assistance." Id. It is Mr. Brooks' burden to overcome this presumption by showing that the alleged errors were not sound strategy under the circumstances. See id. "For counsel's performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong." Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999).

Under the prejudice prong, Mr. Brooks must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; see also Richter, 562 U.S. at 112 (stating that "[t]he likelihood of a different result must be substantial, not just conceivable."). In determining whether Mr. Brooks has established prejudice, the Court must look at the totality of the evidence and not just the evidence that is helpful to Mr. Brooks. See Boyd, 179 F.3d at 914.

If Mr. Brooks fails to satisfy either prong of the Strickland test, the ineffective assistance of counsel claims must be dismissed. See Strickland, 466 U.S. at 697. Furthermore, conclusory allegations that counsel was ineffective are not sufficient to warrant habeas relief. See Humphreys v. Gibson, 261 F.3d 1016, 1022 n.2 (10th Cir. 2001). Finally, "because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

The Colorado Court of Appeals applied the two-part Strickland test and rejected this ineffective assistance of counsel claim because Mr. Brooks failed to demonstrate he suffered any prejudice.

(ECF No. 12-6 at 6-10 (footnote omitted).)

Mr. Brooks does not argue that the state court's decision was contrary to Strickland. In other words, he does not cite any contradictory governing law set forth in Supreme Court cases or any materially indistinguishable Supreme Court decision that would compel a different result. See House, 527 F.3d at 1018. Mr. Brooks does cite Hill v. Lockhart, 474 U.S. 52 (1985), as the proper standard to evaluate prejudice under Strickland. The Supreme Court in Hill held that, to show prejudice under Strickland in challenging a guilty plea based on ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that, but for counsel's alleged errors, he would not have pled guilty but would have insisted on going to trial. See Hill, 474 U.S. at 59. Although Mr. Brooks was convicted following a guilty plea, his remaining claim does not challenge the guilty plea. Instead, Mr. Brooks contends in the ineffective assistance of counsel portion of claim 4 that counsel erroneously told him he could not withdraw his guilty plea. Therefore, the proper prejudice inquiry must focus on the opportunity to file a motion to withdraw the guilty plea and the Colorado Court of Appeals properly considered whether Mr. Brooks suffered any prejudice under Strickland by addressing whether the trial court would have granted such a motion. As a result, to the extent Mr. Brooks may be arguing the state court's decision is contrary to Hill, the Court rejects the argument.

Mr. Brooks also fails to demonstrate that the state court's decision rejecting his remaining ineffective assistance of counsel claim was an unreasonable application of Strickland. Mr. Brooks' arguments regarding prejudice are premised on his contention that his statements and beliefs regarding restitution owed to all of his victims do not demonstrate an awareness that the trial court could consider the dismissed counts at sentencing. However, the state court determined as a factual matter "that defendant was aware that the court could consider statements from the victims of the dismissed counts." (ECF No. 12-6 at 9.) The Court presumes this factual determination is correct and Mr. Brooks bears the burden of rebutting the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

Although Mr. Brooks obviously disagrees with the state court's factual finding premised on his statements and actions with respect to restitution, he does not present clear and convincing evidence to overcome the presumption of correctness. For one thing, Mr. Brooks concedes "he never believed his financial exposure was limited only to the four counts he plead to." (ECF No. 29 at 6.) His explanation that he was conceding only civil liability and not criminal culpability is belied by the fact that restitution was part of his plea agreement in a criminal case and was imposed as part of the criminal judgment. The fact that Mr. Brooks previously rejected a different plea agreement also is not clear and convincing evidence of his alleged lack of awareness that the trial court could consider statements from the victims of the dismissed counts at his sentencing.

In light of the state court's factual determination that Mr. Brooks was aware the trial court could consider statements from the victims of the dismissed counts at sentencing, the state court's legal conclusion that Mr. Brooks was not prejudiced by counsel's alleged ineffectiveness in advising Mr. Brooks he could not file a motion to withdraw his guilty plea prior to sentencing is not an unreasonable application of clearly established federal law. Given the state court's specific determination that a motion to withdraw his guilty plea would have been denied under state law, the Court agrees with the Colorado Court of Appeals that Mr. Brooks fails to demonstrate prejudice under the general Strickland standard. In short, Mr. Brooks is not entitled to habeas relief with respect to the ineffective assistance of counsel portion of claim 4 because he fails to demonstrate the state court's ruling regarding the absence of prejudice 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.

V. CONCLUSION

In summary, the Court finds that Mr. Brooks is not entitled to relief on his remaining claim. Accordingly, it is

ORDERED that the Motion for Leave to File an Amended Complaint (ECF No. 25) is denied. It is further

ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) is denied and this case is dismissed with prejudice. It is further

ORDERED that there is no basis on which to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c).