MARCIA S. KRIEGER, Chief District Judge.
This matter is before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, ECF No. 1, filed pro se by Applicant Oloyea D. Wallin. Respondents have filed an Answer to Application for Writ of Habeas Corpus, ECF No. 39, but Applicant has failed to reply to the Answer. After reviewing the Application, the Answer, and the state court record, the Court FINDS and CONCLUDES that the Application should be denied and the case dismissed with prejudice.
Applicant is challenging the validity of his conviction and sentence in Arapahoe County District Court case number 03CR2296. The factual background of Applicant's crimes and convictions is summarized in the Colorado Court of Appeals' (CCA's) opinion addressing his direct appeal as follows:
People v. Wallin, No. 04CA1011, 1-3 (Colo. App. July 12, 2007).
The judgment of conviction was affirmed on direct appeal but remanded for resentencing, id., at 17-18, which Applicant subsequently appealed, but dismissed, and then finally proceeded with a motion to recuse and a Colo. R. Crim. P. 35(c) motion. The recusal and Rule 35(c) motions were denied, Applicant appealed the denial, and the CCA denied the motions on appeal. People v. Wallin, No. 11CA0972 (Colo. App. Dec. 6, 2012). The CCA denied the motion to recuse for failure to demonstrate bias and the Rule 35(c) motion as successive. Id. The Colorado Supreme Court CSC denied Applicant's petition for writ of certiorari on June 16, 2014, in the collateral proceedings. See People v. Wallin, 2013SC739 (Colo. June 16, 2014). This Application was filed on July 15, 2014.
Applicant raises twenty-one claims in the Application. Upon initial review of the claims, the Court determined that Claims One, Three as it pertains to due process and double jeopardy, Four through Seventeen, and Twenty are procedurally barred from federal habeas review. Mar. 30, 2015 Part Dism. Ord. ECF No. 36. Also, Claims Eighteen and Twenty-One were found not to be cognizable in a federal habeas action. Id. The only remaining claims to be addressed on the merits are Claims Two, Three as it pertains to equal protection, and Nineteen. Id. Applicant presents these three claims as follows:
The Court must construe the Application and other papers filed by Applicant 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 act as 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). Applicant 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. Harrington v. Richter, 562 U.S. 86, 98 (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. (collecting cases). 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. "Where there has been one reasoned state judgment rejecting a federal claim," federal habeas courts should presume that "later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (supported in Hittson v. Chatman, ___ U.S. ___, 135 S.Ct. 2126 (June 15, 2015) (Ginsburg, J., concurring in denial of certiorari review).
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 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). 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 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. 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 asserting 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 Applicant 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 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). "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, 576 U.S. ___, 135 S.Ct. 2187, 2199 (2015) (citing Fry, 551 U.S. at 119-120).
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 in Claim Two that the trial court erred by admitting a recording of a telephone call he made to the police at the suggestion of his parole officer. ECF No. 1 at 9. He further contends that he was not aware at the time of the call that he was a suspect in a crime and no Miranda warning was given. Id. Applicant concludes that as a result the improper admission of the recording influenced the jury's verdict and was in violation of his Fourteenth Amendment rights and Miranda protections. Id.
Respondents contend that the CCA's denial of this claim is a reasonable application of clearly established federal law and a reasonable determination of the facts. ECF No. 39 at 13.
The CCA addressed the merits of this claim and reasoned as follows in rejecting the claim:
Wallin, No. 04CA1011 at 9-13.
First, Applicant's reliance on Miranda is misplaced. Applicant was not in custody for purposes of Miranda. See California v. Beheler, 463 U.S. 1121 (1983). A determination of whether a suspect is "in custody" for purposes of receiving Miranda protection is "simply whether a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Id. at 1125 (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)) (internal quotation marks omitted). Applicant neither was under formal arrest, nor was he subject to a restraint of his freedom of movement associated with a formal arrest. The statements at issue were left on a detective's answering machine while Applicant remained on parole.
Nonetheless, due process prohibits conviction of a defendant based, "in whole or in part, upon an involuntary confession." Jackson v. Denno, 378 U.S. 368, 376 (1964). The Fifth Amendment also guarantees that "[n]o persons . . . shall be compelled in any criminal case to be a witness against himself." Malloy v. Hogan, 378 U.S. 1, 7 (1964) (citing Bram v. United States, 168 U.S. 532, 542 (1897)) (internal quotation marks omitted). However, a "probation officer" can compel a parolee's "attendance and truthful answers," Murphy, 465 U.S. at 431, and a routine interview by a probation officer is not "transformed" into an inherently coercive setting simply because of the officer's authority to compel a parolee's attendance and to answer honestly, id. In Murphy, the Court declined to require warnings in a probation officer's routine interview with a probationer because the "totality of the circumstances is not such as to overbear a probationer's free will," id. (citing Rogers v. Richmond, 365 U.S. 534, 544 (1961)).
The Court having reviewed the transcript for the January 13, 2004 Jury Trial Hearing and listened to the recording of the message Applicant left for Detective Belleau, see No. 03CR2296, People's Ex. 4, finds Applicant's statements were voluntary. The statements Applicant left on the recorded message are exculpatory. Applicant claims I.M.'s injuries were an accident, not a result of domestic violence, and that I.M. (who eventually recanted her inculpatory statement that Applicant hit her in the face and shoulder) now would claim it was an accident. See No. 03CR2296, Ex. 4. Applicant also did not follow his parole officer's direction to go to the Aurora Police Department to talk with Detective Belleau. Detective Lehmann testified that, when he did talk with Applicant on the telephone, Applicant again provided exculpatory statements regarding the incident involving I.M., see Aug. 25, 2003 Prelim. Hr'g at 12 (Page 12 of CD transcript), and the only two inquiries Detective Lehmann made were "tell me what happened" and "did you strike her," id. at 13. Finally, Applicant does not state in Claim Two, nor is it demonstrated in the record, that he was told by the parole officer his parole would be revoked if he did not report to the Aurora Police Department to respond to possible questions regarding the assault on I.M.
Based on the record, Applicant fails to demonstrate his Fourteenth Amendment rights were violated. Nothing in the record supports a finding that his statements were involuntary and a result of his parole officer coercing him to incriminate himself. The CCA's decision regarding Claim Two is not contrary to or an unreasonable application of clearly established rule of federal law or an unreasonable determination of the facts in light of the evidence presented to the state court. The Court, therefore, finds that Applicant is not entitled to relief in Claim Two.
With respect to the remaining portion of this claim, Applicant asserts that the trial court erred by denying him pre-sentence confinement credit in violation of his equal protection rights. ECF No. 1 at 9. Applicant contends that, when he was sentenced in the criminal case at issue here, he was not serving a sentence in any other case and the denial of the credit against the case at issue illegally extends his punishment. Id. Respondents assert that Applicant's argument (as identified in his opening brief, ECF No. 16-4 at 16-18) is a "technical, state-law argument that under Colo. Rev. Stat. § 17-2-103(6)(c), C.R.S. 2006, his parole hold tolled his parole and he was not serving any aspect of his previous sentence . . .," and as a result "he was entitled to credit against his new sentence." ECF No. 39 at 22-23.
The CCA addressed the merits of this claim and reasoned as follows in rejecting the claim:
Wallin, No. 04CA1011, at 18-22.
The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o state shall. . . deny to any person within its jurisdiction the equal protection of the laws," U.S. Const. amend XIV, § 1, and that all similarly situated persons should be treated a like by state actors, see City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). The U.S. Supreme Court also has found there is a constitutional right to credit for presentence confinement to guarantee that an indigent person who is not able to post bond will not serve more time than an individual who has the means to post bond. See Williams v. Illinois, 399 U.S. 235 (1970). The Court specifically held that "the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status." Williams, 399 U.S. at 244.
To state an equal protection claim, Applicant must allege: (1) that similarly-situated individuals were treated differently; and (2) either that the differential treatment was based on a suspect classification or fundamental right and not supported by a compelling government interest, or if the differential treatment was not based on a suspect classification or fundamental right, the differential treatment was not justified by a rational connection to a legitimate state interest. Kleinsmith v. Shurtleff, 571 F.3d 1033, 1047 (10th Cir. 2009). Applicant may also base differential treatment on a "class-of-one" theory if he was targeted in an "irrational [or] abusive" manner. See Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (single plaintiff intentionally treated differently from others and no rational basis for the difference in treatment).
The Constitution guarantees to all citizens certain fundamental rights. These rights "may not be submitted to vote; they depend on the outcome of no elections," and are vested in every person under the authority of the Constitution. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). These rights were specifically articulated in the Bill of Rights and protect an individual from certain actions of the federal government through the Due Process Clause of the Fourteenth Amendment. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). The scope of review in federal habeas proceedings is limited to a deprivation of fundamental rights guaranteed by the Constitution when considering a claim of state court error. See Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998); and it is well established that any "substantive" component to the Due Process Clause protects only "those fundamental rights and liberties which are, objectively, `deeply rooted in this Nation's history and tradition,'" United States v. Windsor, 133 S.Ct. 2675, 2714-15 (2013) (quoting Washington v. Glucksberg, 521 U.S. 702, 720-721, (1997).
Applicant's alleged denial of pre-sentence confinement credit is not deeply rooted in traditions or in the conscience of people as to be ranked as fundamental. Applicant does not state he is a member of a suspect class or that he intentionally was treated differently. Furthermore, as it applies to Applicant in this situation, "neither prisoners nor indigents constitute a suspect class warranting strict scrutiny review. . . ." Harrison v. Bent County Correctional Facility, 24 F. App'x 965, 967 (10th Cir. 2001) (citing White v. Colorado, 157 F.3d 1226, 1234 (10th Cir. 1998).
If "the challenged government action does not implicate either a fundamental right or a protected class" the Court applies a rational basis test. Price-Cornelison v. Brooks, 524 F.3d 1103, 1110 (10th Cir. 2008). To prevail on an equal protection claim, an applicant must show that the government has treated him differently than others who were similarly situated, see Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996), and allege sufficient facts to establish that "the distinction between himself and other inmates was not reasonably related to some legitimate penological purpose," see Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994).
In People v. Norton, 63 P.3d 339, 343-45 (Colo. 2003), the CSC determined that § 18-1.3-405 was intended to prevent duplicative presentence confinement credit and applies to all class two through six felons who are subject to a mandatory parole, which is a separate component of their sentence. As a result, both those inmates who are able to post bail and those who are not continue to receive credit for serving out the mandatory parole, which is in compliance with Williams' statutory ceiling that an imprisonment for any substantive offense be the same for all defendants irrespective of their economic status. The Court, therefore, finds a legitimate penological interest in crediting defendant's mandatory parole for the time detained pending a criminal proceeding in a newly charged offense.
The fact that Applicant could not post a bond, was held over until the criminal proceedings for his new offense were complete, and received credit for this confinement against his mandatory parole in his first sentence, rather than the newly imposed sentence, does not support a finding of a violation of his equal protection rights. His detention and presentence credit against his mandatory parole are reasonably related to legitimate penological interests; and the credit he received against his mandatory parole was the same as that received by a defendant who was able to post bond pending any criminal proceedings for a new offense. The CCA's decision regarding Claim Three is not contrary to or an unreasonable application of clearly established rule of federal law or an unreasonable determination of the facts in light of the evidence presented to the state court. Applicant, therefore, is not entitled to relief in this claim.
In this claim, Applicant asserts that the trial judge violated his constitutional rights when she failed to disqualify herself once he had established her impartiality and impropriety in the associated criminal proceedings. ECF No. 1 at 17. Applicant further asserts that the continuances allowed in his criminal proceedings prejudiced him and caused multiple constitutional violations. Id. Respondents argue that the CCA's analysis is reasonable and correct, ECF No. 39 at 27, and Applicant's "notice" pleadings in Claim Nineteen are not sufficiently stated in compliance with the Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus Cases Under Section 2254. Id. at 28.
Regarding Claim Nineteen, the CCA found as follows:
People v. Wallin, No. 11CA0972, 2-7 (Colo. App. Dec. 6, 2012).
The Due Process Clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of the case. See Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). It is generally recognized, however, that "due process compels recusal only when the biasing influence is so strong that the court may presume actual bias." United States v. Mansoori, 304 F.3d 635, 667 (7th Cir. 2002) (quotation marks and citations omitted), cert denied, 538 U.S. 967 (2003). An accusation of bias grounded in prior judicial rulings against a party almost never demonstrates partiality requiring a judge's recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994).
"[N]ot `[a]ll questions of judicial qualification . . . involve constitutional validity. Thus, matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion." See Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986) (quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927)). Under this standard, only a few situations have been found where a judge's impartiality might be so impaired as to violate due process, and these situations include a showing of actual bias, In re Murchison, 349 U.S. 133, 136 (1955), or where the judge has a direct financial interest in the outcome of the case, Tumey, 273 U.S. at 523. Beyond these narrow circumstances, the requirements for recusal are normally governed by statute. Aetna, 475 U.S. at 820.
The review under Colorado law for judicial disqualification of a judge is limited as well. Under Colo. Rev. Stat. § 16-6-201(1) the standards for evaluating a motion for a change of judge are as follows:
Affidavits of disqualification must allege personal rather than judicial bias, must show facts indicating the existence of the personal bias, and they must include more than mere conclusions. United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976).
Because the CCA found that Applicant's claims pertain only to rulings by the trial judge and his affidavits failed to present objective evidence of personal bias and prejudice, and because the claim Applicant has presented in this Court fails to assert any facts that indicate the existence of the trial judge's personal bias and prejudice, Applicant has not shown a bias influence so strong that the court may presume actual bias in violation of his due process rights. The CCA's decision regarding Claim Nineteen is not contrary to or an unreasonable application of clearly established rule of federal law or an unreasonable determination of the facts in light of the evidence presented to the state court. The Court, therefore, finds that Applicant is not entitled to relief in Claim Nineteen.
In summary, the Court finds that Applicant is not entitled to relief on any of his remaining claims. Accordingly, it is
