WILLIAM J. MARTÍNEZ, District Judge.
This matter is before the Court on the Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) (the "Amended Application") filed pro se by Applicant Gregory Owens. Respondents have filed an Answer to Application Under 28 U.S.C. § 2254 (ECF No. 22) ("the Answer"). Mr. Owens has not filed a traverse despite being given an opportunity to do so. After reviewing the record, including the Amended Application, the Answer, and the state court record, the Court FINDS and CONCLUDES that the Amended Application should be denied and the case dismissed with prejudice.
Mr. Owens is challenging the validity of his conviction and sentence in Denver District Court case number 06CR7406. The Colorado Court of Appeals on direct appeal described the relevant background for Mr. Owens' conviction as follows:
People v. Owens, No. 08CA1834, slip op. at 1-2 (Colo. App. May 16, 2013) (unpublished) (ECF No. 11-4 at 3-4). The judgment of conviction was affirmed on direct appeal. See id. On June 16, 2014, the Colorado Supreme Court denied Mr. Owens' petition for writ of certiorari on direct appeal. (See ECF No. 11-2.)
On August 11, 2014, and again on August 20, 2014, Mr. Owens filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 11-1 at 8.) On September 23, 2014, the trial court entered an order denying denied the Rule 35(c) motion. (See id. at 7.) Mr. Owens did not appeal.
On October 27, 2014, Mr. Owens filed in the trial court an amended Rule 35(c) motion. (See id.) On February 27, 2015, the trial court denied the amended Rule 35(c) motion as successive. (See id.) Mr. Owens again did not appeal.
The instant action was commenced on July 2, 2015, and Mr. Owens asserts fifteen claims for relief in the Amended Application. The Court previously entered an Order to Dismiss in Part (ECF No. 19) dismissing claims two through fifteen because those claims are unexhausted and procedurally barred. Therefore, only claim one in the Amended Application remains to be considered on the merits. Mr. Owens contends in claim one that the prosecution's misstatement of the law during closing arguments regarding the affirmative defense of insanity, and the trial court's failure to correct it after objection, violated his due process rights to a fair trial and to present a defense.
The Court must construe the Amended Application liberally because Mr. Owens 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. Owens 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. Owens 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, 563 U.S. 170, 180-81 (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. Owens 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).
As noted above, Mr. Owens contends in claim one that the prosecution's misstatement of the law during closing arguments regarding the affirmative defense of insanity, and the trial court's failure to correct it after objection, violated his due process rights to a fair trial and to present a defense. In support of this claim Mr. Owens relies solely on the arguments he presented in state court on direct appeal. He maintains that he suffers from AIDS-related dementia and delirium and has a history of abusing cocaine. According to Mr. Owens, the prosecution incorrectly told the jury during rebuttal closing argument that his history of drug use negated the affirmative defense of insanity. However, because there was no evidence that he used drugs on the night of the offense, Mr. Owens contends the jury should have considered whether his AIDS-related dementia and delirium, either independently or as a component of his mental functioning, constituted legal insanity for purposes of his affirmative defense. Mr. Owens does not contend that the trial court's instructions to the jury regarding the affirmative defense were incorrect or misstated the law.
The clearly established federal law relevant to a constitutional claim challenging a prosecutor's comments during closing argument is the Supreme Court's decision in Darden v. Wainwright, 477 U.S. 168 (1986). See Parker v. Matthews, 132 S.Ct. 2148, 2153 (2012) (per curiam). In Darden, the Supreme Court explained that a prosecutor's improper comments violate the Constitution only when the misconduct "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In order to determine whether prosecutorial misconduct rendered the trial fundamentally unfair, the Court must consider "the totality of the circumstances, evaluating the prosecutor's conduct in the context of the whole trial." Jackson v. Shanks, 143 F.3d 1313, 1322 (10th Cir. 1998). "[T]he Darden standard is a very general one, leaving courts `more leeway . . . in reaching outcomes in case-by-case determinations.'" Parker, 132 S. Ct. at 2155 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Finally, in the specific context of a prosecutor's misstatement of the law during closing argument, it is clear that
Boyde v. California, 494 U.S. 370, 384-385 (1990) (citations omitted).
The Colorado Court of Appeals reasoned as follows in rejecting Mr. Owens' due process claim premised on the prosecutor's alleged misstatement of the law during rebuttal closing argument:
(ECF No. 11-4 at 4-10.)
Mr. Owens does not contend that the decision of the Colorado Court of Appeals is contrary to Darden or any other clearly established federal law. 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 in his case. See House, 527 F.3d at 1018. In any event, the Court finds that the state court decision is not contrary to clearly established federal law. See Jeremiah v. Kemna, 370 F.3d 806, 809-10 (8th Cir. 2004) (state court decision that prosecutor's misstatement of the law did not prejudice defendant because jury was instructed correctly is not contrary to clearly established federal law).
Mr. Owens also fails to present any argument that demonstrates the state court's ruling is an unreasonable application of Darden or any other clearly established federal law. Most importantly, the state court properly relied on the fact that the jury was correctly instructed regarding the affirmative defense of insanity in determining that any prosecutorial misconduct was harmless. Under these circumstances, the Court cannot conclude that the state court decision was an unreasonable application of clearly established federal law. See Cox v. McNeil, 638 F.3d 1356, 1361 (11th Cir. 2011) (per curiam) (state court decision that prosecutor's repeated misstatements of the law during voir dire and closing argument were harmless because jury instructions were accurate was not contrary to, or an unreasonable application of, clearly established federal law); Dagley v. Russo, 540 F.3d 8, 18-19 (1st Cir. 2008) (state court decision that prosecutor's single, isolated, and unelaborated misstatement to the jury during an extended closing argument that was addressed indirectly by accurate oral and written jury instructions was not an unreasonable application of clearly established federal law); Williams v. Groose, 77 F.3d 259, 262 (8th Cir. 1996) (holding that, even if prosecutor's remarks constitute trial error warranting reversal under state law, they did not render trial fundamentally unfair because jury instructions correctly defined reasonable doubt).
In light of the very general Darden standard, the Court ultimately cannot conclude that the state court's determination "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.
Finally, even if the state court's decision could be considered contrary to or an unreasonable application of clearly established federal law, any error was harmless under Brecht. Once again, the fact that the jury properly was instructed limits the prejudicial impact of the prosecutor's alleged misstatement of law. Furthermore, as the state court noted, the only medical expert who actually examined Mr. Owens and testified about his mental condition opined that Mr. Owens was legally sane when the murders took place. Therefore, based on a review of the entire state court record, the Court cannot conclude that any constitutional error with respect to the prosecutor's alleged misstatement of the law during rebuttal closing argument had a substantial and injurious effect on the jury's verdict. See Brecht, 507 U.S. at 637.
In summary, the Court finds that Mr. Owens is not entitled to relief on claim one in the Amended Application. Accordingly, it is
