LEWIS T. BABCOCK, 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. 12) (the "Amended Application") filed pro se on September 2, 2014, by Applicant, Demetrius Thomas. Mr. Thomas is challenging the validity of his conviction in El Paso County District Court case number 07CR308. Respondents have filed an Answer to Application for Writ of Habeas Corpus (ECF No. 41) ("the Answer") and Mr. Thomas has filed a Reply to Answer to Application for Writ of Habeas Corpus (ECF No. 46) ("the Traverse"). After reviewing the record, including the Amended Application, the Answer, the Traverse, and the state court record, the Court FINDS and CONCLUDES that the Amended Application should be denied and the case dismissed with prejudice.
Mr. Thomas was charged with attempted first degree murder, first degree assault, felony menacing, and a violent crime sentence enhancer based on his participation in a drive-by shooting. The jury at his first trial found Mr. Thomas not guilty of felony menacing but was unable to reach a verdict on the remaining counts and a mistrial was declared as to those counts. Mr. Thomas was retried and a jury at his second trial found him guilty of first degree assault and the violent crime sentence enhancer. The judgment of conviction was affirmed on direct appeal. See People v. Thomas, No. 08CA1492 (Colo. App. May 20, 2010) (unpublished) (ECF No. 20-3). On August 16, 2010, the Colorado Supreme Court denied Mr. Thomas' petition for writ of certiorari on direct appeal. (See ECF No. 20-5.)
On March 4, 2011, Mr. Thomas filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 20-1 at 10.) On June 17, 2011, the trial court denied the Rule 35(c) motion. (See id.) The trial court's order was affirmed on appeal. See People v. Thomas, No. 11CA1572 (Colo. App. Jan. 24, 2013) (unpublished) (ECF No. 20-8).
On March 15, 2013, Mr. Thomas filed in the trial court a second postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 20-1 at 8.) On April 12, 2013, the trial court denied the second Rule 35(c) motion as successive. (See id.) The trial court's order denying the second Rule 35(c) motion was affirmed on appeal because the claims in the second Rule 35(c) motion were raised, or could have been raised, in a prior appeal or postconviction proceeding. See People v. Thomas, No. 13CA0806 (Colo. App. May 15, 2014) (unpublished) (ECF No. 20-11).
The instant action was commenced on July 14, 2014. Respondents filed a Pre-Answer Response (ECF No. 20) that identified twenty-five separate claims for relief in the Amended Application, including some with subparts. In his reply (ECF No. 22) to the Pre-Answer Response Mr. Thomas agreed that he is asserting the twenty-five claims identified by Respondents. The Court previously entered an Order to Dismiss in Part (ECF No. 36) dismissing most of Mr. Thomas' claims as unexhausted and procedurally barred. The only claims that remain to be considered on the merits are claims 7(d), 8, 20(a)(i), and 23. Mr. Thomas contends in his remaining claims that trial counsel was ineffective by refusing to introduce evidence that Mr. Thomas was accused falsely (claim 7(d)); his retrial was barred by double jeopardy (claim 8); counsel on direct appeal was ineffective by failing to raise a claim that Mr. Thomas' second trial was barred by double jeopardy (claim 20(a)(i)); and the trial court erred by refusing to accept the jury's inconsistent verdicts and ordering the jury to deliberate further (claim 23).
The Court must construe the Amended Application and other papers filed by Mr. Thomas 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. Thomas bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
A claim 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. See 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. Thus, "[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. 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. 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 [the Court's] independent review of the record and pertinent federal law persuades [the Court] that its 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. "[T]his `independent review' should be distinguished from a full de novo review of the petitioner's claims." Id.
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. Thomas 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 (10
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 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 (10
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 (10
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 (10
Mr. Thomas contends in claim 7(d) that trial counsel was ineffective by refusing to introduce evidence that Mr. Thomas was accused falsely. The evidence he contends counsel refused to introduce consists of letters from a witness, Krishna Ali, Sr., to Mr. Thomas' co-defendant, Krishna Ali, Jr., stating they could place the blame on Mr. Thomas as well as recorded conversations with two other witnesses, Tiana Campbell and Brian Melvin, stating Mr. Thomas is innocent.
Respondents first argue that claim 7(d) is unexhausted and procedurally barred to the extent Mr. Thomas relies on evidence of a recorded conversation with Brian Melvin because Mr. Thomas did not mention such evidence in support of this ineffective assistance of counsel claim in the state court proceedings. The Court agrees. In the state court proceedings, Mr. Thomas argued in support of this ineffective assistance of counsel claim only that counsel failed to introduce letters from Ali, Sr., to Ali, Jr., and the recorded statement of Tiana Campbell and he made no mention of a recorded conversation with Brian Melvin. (See ECF No. 20-6 at 47-50.) In any event, it appears that Mr. Thomas has abandoned any argument regarding a recorded conversation with Brian Melvin because he does not mention such a conversation in support of claim 7(d) in the Traverse. (See ECF No. 46 at 18-27.)
It was clearly established when Mr. Thomas 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 counsel was ineffective Mr. Thomas 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. Thomas' 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 (10
Under the prejudice prong Mr. Thomas 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. Thomas has established prejudice, the Court must look at the totality of the evidence and not just the evidence that is helpful to Mr. Thomas. See Boyd, 179 F.3d at 914.
If Mr. Thomas fails to satisfy either prong of the Strickland test, the ineffective assistance of counsel claim 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 specifically recited and applied the two-part Strickland test in rejecting Mr. Thomas' claim that trial counsel was ineffective by failing to introduce the evidence at issue in claim 7(d). The state court reasoned as follows:
(ECF No. 20-8 at 9-13 (alterations in original).)
Mr. Thomas does not argue that the state court's decision with respect to the particular evidence at issue in claim 7(d) 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. Thomas also fails to demonstrate that the state court's decision rejecting this ineffective assistance of counsel claim was an unreasonable application of Strickland. With respect to the letters from Ali, Sr., to Ali, Jr., the state courts determined the letters were not admissible as a matter of state law. In light of that determination, it was not unreasonable to conclude counsel was not ineffective and that Mr. Thomas was not prejudiced by counsel's failure to introduce the letters. See Scott v. Romero, 153 F. App'x 495, 497-98 (10
Ultimately, the Court concludes that Mr. Thomas is not entitled to relief with respect to claim 7(d) because he fails to demonstrate the state court ruling "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.
Claims 8 and 20(a)(i) in the Amended Application are related. Mr. Thomas contends in claim 8 that he was subjected to double jeopardy because he was retried after his first trial ended in a mistrial due to insufficient evidence. (See ECF No. 12 at 27.) He contends in claim 20(a)(i) that counsel on direct appeal was ineffective by failing to raise a claim that Mr. Thomas' second trial was barred by double jeopardy. (See ECF No. 12 at 61.) The Court previously determined that Mr. Thomas failed to exhaust state remedies with respect to claim 8 but deferred consideration of whether Mr. Thomas can establish cause and prejudice for that claim based on direct appeal counsel's alleged failure to raise the claim until the parties brief the merits.
In addition to his double jeopardy argument premised on the sufficiency of the evidence, Mr. Thomas contends in the Traverse that he was subjected to double jeopardy because his acquittal on the menacing count at his first trial precludes a second trial for first degree assault. (See ECF No. 46 at 9.) Mr. Thomas did not assert this particular double jeopardy argument in the Amended Application and he fails to demonstrate that the claim was fairly presented to the Colorado appellate courts either on direct appeal or in the postconviction proceedings. Therefore, the Court's review of claims 8 and 20(a)(i) is limited to Mr. Thomas' contention that he was subjected to double jeopardy because there was insufficient evidence presented at his first trial.
The same Strickland standards relevant to claim 7(d) above apply to Mr. Thomas' assertion in claim 20(a)(i) that counsel on direct appeal was ineffective. See Cargle v. Mullin, 317 F.3d 1196, 1202 (10
Malicoat v. Mullin, 426 F.3d 1241, 1248-49 (10
With respect to the substantive merits of Mr. Thomas' double jeopardy claim, "the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy." Richardson v. United States, 468 U.S. 317, 325 (1984). Although Mr. Thomas insists that the first trial ended in a mistrial because of insufficient evidence, the state court record demonstrates a mistrial was declared after the jury was unable to reach a verdict. Because "a trial court's declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected," there is no valid double jeopardy claim to prevent a retrial "[r]egardless of the sufficiency of the evidence at petitioner's first trial." Id. at 326.
To the extent Mr. Thomas relies on Lockhart v. Nelson, 488 U.S. 33 (1988), in support of his double jeopardy claim, his reliance is misplaced. The question presented in Lockhart was "whether the Double Jeopardy Clause allows retrial when a reviewing court determines that a defendant's conviction must be reversed because evidence was erroneously admitted against him, and concludes that without the inadmissible evidence there was insufficient evidence to support a conviction." Id. at 40. The Supreme Court noted that "a reversal based on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary `trial errors' as the `incorrect receipt or rejection of evidence.'" Id. However, Mr. Thomas was not retried following reversal of his conviction. Instead, he was retried after the jury at his first trial was unable to reach a verdict. Therefore, the Court applies the law clearly established in Richardson.
The Colorado Court of Appeals applied the two-prong Strickland test to Mr. Thomas' claim that counsel on direct appeal was ineffective by failing to raise a double jeopardy challenge to his retrial. (See ECF No. 20-8 at 13-16.) The state court rejected the claim for two reasons. First, Mr. Thomas failed to allege the double jeopardy issue was more likely to prevail than the issues actually raised on direct appeal. (See id. at 15.) Second, the state court reasoned that Mr. Thomas "cannot establish prejudice from counsel's failure to raise a double jeopardy challenge because defendant's retrial did not violate double jeopardy." (Id.) In support of this second point the state court cited a Colorado Supreme Court case, People v. Richardson, 184 P.3d 755, 760 (Colo. 2008), for the proposition that double jeopardy does not bar retrial when jury deadlock creates a manifest necessity to declare a mistrial. The Colorado Court of Appeals in Mr. Thomas' case also determined that "defendant's retrial did not violate double jeopardy because the evidence introduced at that the [sic] first trial was sufficient to sustain a conviction for first degree assault, even though the first jury deadlocked on that count." (ECF No. 20-8 at 7.) The state court specifically noted that
(Id. at 7-8.) The Court previously noted in the Order to Dismiss in Part that the state court record confirms the accuracy of this summary of the evidence against Mr. Thomas. (See ECF No. 36 at 23.)
Mr. Thomas' selective parsing of the evidence presented against him does not demonstrate he was entitled to an acquittal on all counts at his first trial that would have barred a retrial. The record is clear that his first trial ended in a mistrial because of a hung jury on the counts other than felony menacing. Under these circumstances, the state court's determinations that Mr. Thomas' double jeopardy rights were not violated, and that his ineffective assistance of appellate counsel claim premised on direct appeal counsel's failure to raise a double jeopardy claim lacked merit, were not contrary to or an unreasonable application of clearly established federal law. To reiterate, under Richardson, "a trial court's declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected" and there is no valid double jeopardy claim to prevent a retrial "[r]egardless of the sufficiency of the evidence at petitioner's first trial." Richardson, 468 U.S. at 326. Therefore, Mr. Thomas is not entitled to relief with respect to claims 8 and 20(a)(i).
Mr. Thomas contends in claim 23 that the jury twice rendered inconsistent verdicts and the trial court erred by refusing to accept the inconsistent verdicts and ordering the jury to deliberate further. He specifically asserts that his federal constitutional rights to due process and a fair trial were violated because the inconsistent verdicts demonstrate the prosecution failed to prove every element of first degree assault beyond a reasonable doubt. The facts relevant to claim 23 were described by the Colorado Court of Appeals as follows:
(ECF No. 20-3 at 5-7.)
The Colorado Court of Appeals reasoned as follows in rejecting this claim:
Finally, defendant contends that the trial court erred by failing to accept the allegedly inconsistent verdicts and sending the jury back for further deliberations, and in denying his motion for a new trial, which was premised on the same purported error. We are not persuaded.
(ECF No. 20-3 at 14-15.)
It is apparent that the Colorado Court of Appeals did not explicitly address the inconsistent verdicts claim as a federal constitutional claim. However, as noted above, "[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." Richter, 562 U.S. at 99; see also Early v. Packer, 537 U.S. 3, 8 (2002) (an adjudication on the merits "does not require citation of [Supreme Court] cases — indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them."). Neither party argues that the Colorado Court of Appeals did not adjudicate the inconsistent verdicts claim on the merits. Therefore, the Court considers the inconsistent verdicts claim under the deferential standards in § 2254(d).
As noted above, the threshold question the Court must answer under § 2254(d)(1) is whether Mr. Thomas seeks to apply a rule of law that was clearly established by the Supreme Court at the time his conviction became final. See Williams, 529 U.S. at 390. On direct appeal, Mr. Thomas cited a Colorado Supreme Court case, People v. Griego, 19 P.3d 1 (Colo. 2001), in support of his argument that his federal constitutional rights were violated as a result of the trial court's failure to accept the inconsistent verdicts. (See ECF No. 20-2 at 14-15.) The federal constitutional principles implicated in Griego were the rights of a defendant in a criminal case "to have a jury decide his case" and "to have the prosecutor prove to that jury, beyond a reasonable doubt, every element of the charged offense." Griego, 19 P.3d at 7.
Mr. Thomas specifically cites In re Winship, 397 U.S. 358 (1970), in the Amended Application in support of claim 23. In Winship, the Supreme Court held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Winship, 397 U.S. at 364. Furthermore, clearly established federal law provides "that the Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are related." Sullivan v. Louisiana, 508 U.S. 275, 278 (1993). Thus, "the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt." Id.
Mr. Thomas fails to demonstrate that the state court's decision rejecting the inconsistent verdict claim was contrary to Winship. 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. Thomas also fails to demonstrate that the state court's decision rejecting the inconsistent verdict claim was an unreasonable application of Winship. As discussed above, there was sufficient evidence presented at Mr. Thomas' second trial to support his conviction for first degree assault. Therefore, the state court's rejection of Mr. Thomas' inconsistent verdicts claim was not "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.
In summary, the Court finds that Mr. Thomas is not entitled to relief on his remaining claims. Accordingly, it is
