ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

WILLIAM J. MARTÍNEZ, District Judge.

Applicant, Ira Miner, has filed pro se an amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 13) challenging the validity of his criminal conviction and sentence in Jefferson County District Court case number 06CR454. Respondents have filed an Answer (ECF No. 41), and Applicant has filed a Traverse (ECF No. 46). Having considered the same, along with the state court record, the Court will deny the Application.

I. BACKGROUND

On November 7, 2006, a jury convicted Mr. Miner of attempted first-degree murder, first-degree assault, and robbery. (ECF No. 9-1 at 7; ECF No. 9-15 at 3). The trial court sentenced him to a total of forty-eight years, two concurrent thirty-two year sentences for attempted murder and first-degree assault and a consecutive sixteen year sentence for robbery. (ECF No. 9-1 at 5; ECF No. 9-4 at 3).

On April 15, 2010, the Colorado Court of Appeals affirmed Mr. Miner's conviction and sentence on direct appeal in People v. Miner, No. 07CA0488 (Colo. App. Apr. 15, 2010) (unpublished decision). (ECF No. 9-15). The Colorado Supreme Court denied Mr. Miner's request for certiorari review on August 9, 2010. (ECF No. 9-13 at 2).

On November 12, 2010, Mr. Miner filed a combined motion for sentence reconsideration pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure and reduction of mandatory sentence pursuant to Colo. Rev. Stat. § 18-1.3-406(1)(a), which the trial court denied on December 7, 2010. (ECF No. 9-1 at 3). Mr. Miner did not file an appeal.

On May 19, 2011, Mr. Miner filed a motion for postconviction relief pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure, which the trial court denied without a hearing on June 22, 2011. (ECF No. 9-1 at 3). The Colorado Court of Appeals affirmed the trial court's order in People v. Miner, No. 11CA1451 (Colo. App. Jan. 17, 2013) (unpublished). (ECF No. 9-4). The Colorado Supreme Court denied certiorari review on August 26, 2013 (ECF No. 9-2 at 2).

Mr. Miner initiated the instant federal habeas action on November 14, 2013. In the Amended Application, he asserted the following three claims with numerous subclaims:

(ECF No. 13 at 5-6).

(Id. at 7-11).

(Id. at 11).

On January 27, 2014, U.S. Magistrate Judge Boyd N. Boland ordered Respondents to file a second pre-answer response addressing the affirmative defenses of timeliness and exhaustion of state court remedies. In the Pre-Answer Response to Amended § 2254 Application (ECF No. 15), Respondents conceded that the Application was timely under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). (Id. at 6). Respondents further conceded that Mr. Miner exhausted state remedies for some subclaims but argued that Applicant did not exhaust state court remedies for many of the subclaims. (Id. at 10-39). Respondents also asserted that the unexhausted subclaims were procedurally defaulted and that some subclaims were insufficiently pleaded. (Id.)

In a previous order, the Court found that Mr. Miner's subclaims and arguments were exhausted, without merit, procedurally defaulted, and insufficiently pleaded as follows:

1. Subclaims 1(a), 2(a)(iv)(4), 2(c)(ii)(2), 2(c)(ii)(3), the portion of subclaim 2(d)(I) alleging Applicant's waiver of his right to counsel during police interrogation was not knowing and intelligent, and subclaims 2(d)(ii), 2(d)(iv), 3(a) were exhausted;

2. Subclaim 2(a)(vi) was without merit and dismissed;

3. Subclaims 1(b), 1(c), 1(d), 1(e), 2(a)(iv)(1), 2(a)(iv)(2), 2(a)(iv)(3), 2(a)(v), 2(b), 2(c)(I), 2(c)(ii)(1), the portion of subclaim 2(d)(I) alleging judicial bias stemming from the trial court's determination that Applicant's waiver of his right to counsel during police interrogation was valid, subclaims 2(d)(iii), 2(d)(v), 2(e), and 3(b) and the chain-of-custody and spousal-privilege arguments were procedurally defaulted and dismissed; and

4. Subclaims 2(a)(I), 2(a)(ii), and 2(a)(iii) were insufficiently pleaded and dismissed.

(See ECF No. 36 at 36-37).

The Court further ordered Respondents to file an answer on the merits of the remaining exhausted subclaims. On December 22, 2014, Respondents filed their Answer (ECF No. 41) and Mr. Miner filed his Traverse (ECF No. 46) on February 4, 2015.

The Court addresses the following remaining exhausted subclaims below: Subclaims 1(a), 2(a)(iv)(4), 2(c)(ii)(2), 2(c)(ii)(3), the portion of subclaim 2(d)(I) alleging Applicant's waiver of his right to counsel during police interrogation was not knowing and intelligent, and subclaims 2(d)(ii), 2(d)(iv), and 3(a).

II. LEGAL STANDARDS

A. 28 U.S.C. § 2254

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). The applicant 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 the 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. In addition,

Harrington v. Richter, 562 U.S. 86, 101 (2011) (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. Moreover, "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 federal 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 the petitioner 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)).

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).

B. Pro Se Litigant

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). 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). Pro se status does not entitle an applicant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

III. ANALYSIS

A. Subclaims 1(a), 3(a)

Remaining for merits disposition is Applicant's allegation in subclaim 1(a) that the trial court "did not have jurisdiction" over his criminal case because he was arrested at gunpoint and "in fear of physical retribution" by arresting officers, such that any statements made during the arrest, including Applicant's consent to the search of his apartment, were coerced. (ECF No. 13 at 5). The Court construes subclaim 1(a) as a Fourth Amendment challenge to the voluntariness of his consent. In subclaim 3(a), Applicant asserts a violation of the Fourth Amendment because he was in "physical and psychological distress" and did not consent to the search at the time it was conducted. (Id. at 11). Thus, subclaim 3(a) is essentially a restatement of subclaim 1(a), and the Court will review the alleged Fourth Amendment violations together.

The Fourth Amendment protects against unreasonable search and seizure and is generally enforced through the exclusionary rule. See, e.g., Illinois v. Gates, 462 U.S. 213, 254 (1983); Stone v. Powell, 428 U.S. 465, 482-87 (1976). In Stone, the Supreme Court limited federal habeas review for alleged Fourth Amendment violations based on the Court's determination that any additional contribution gained from consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the associated costs. 428 U.S. at 493-94. The Supreme Court further held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone, 428 U.S. at 494.

The Supreme Court has not defined precisely the phrase "opportunity for full and fair litigation." See Gamble v. State of Oklahoma, 583 F.2d 1161, 1164 (10th Cir. 1978). In Gamble, the Tenth Circuit determined that the phrase:

Id. at 1165. "Thus, a federal court is not precluded from considering Fourth Amendment claims in habeas corpus proceedings where the state court willfully refuses to apply the correct and controlling constitutional standards." Id.

In the instant action, Applicant's counsel filed a motion to suppress evidence and statements obtained from the search subsequent to his arrest, and the trial court held a suppression hearing. (See State Court R., 10/11/06 Hrg. Tr., at 5-6). After hearing testimony from police officers and Applicant, the trial court denied the motion finding that Applicant's consent to the search was voluntary. (Id. at 165-186).

On appeal, the Colorado Court of Appeals applied the following Fourth Amendment principles:

(ECF No. 9-15 at 5-7).

The state appellate court then found that the following evidence presented at the suppression hearing supported the trial court's finding that Applicant's consent to the search was voluntary:

(ECF No. 9-15 at 7-9; see also State Court R., 10/11/06 Hrg. Tr.).

The state courts' factual findings, which are supported by the transcript of the suppression hearing, are presumed correct. Applicant bears the burden of refuting the findings with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). In the Traverse, Applicant challenges the state courts' factual findings that the arresting officer "testified that [Applicant] was `very calm and cooperative'" when he consented to the search. (See ECF No. 46 at 4). Specifically, Applicant asserts that the police officer's testimony was contrary to Applicant's testimony that he was "scared" and consented to the search out of "fear and guilt" because the officer initially approached him "with a gun in [his] hand, no matter what direction the gun is pointed in, although there was no verbal threats made." (Id. at 3-4). The Court finds that the state courts' factual findings are supported by the state court record, and that Applicant has not pointed to any thing in the suppression hearing transcript that clearly contradicts the state courts' factual findings that the police officers did not threaten Applicant and that Applicant's demeanor was "calm and cooperative." (See State Court R., 10/11/06 Hrg. Tr. at 49-99, 143-151).

The Court further finds that the state court proceedings sufficed to provide Applicant with an opportunity for full and fair litigation of his claim. See Smallwood v. Gibson, 191 F.3d 1257, 1265 (10th Cir.1999) (holding that petitioner was not entitled to habeas review of Fourth Amendment claim where petitioner's trial counsel informed the trial court of the factual basis for a Fourth Amendment claim, appellate counsel presented the issue to the state appellate court on direct appeal, and the state courts "thoughtfully considered the facts underlying petitioner's Fourth Amendment claim" but rejected it on the merits by applying appropriate Supreme Court precedents). Although Applicant argues in the Traverse that "[t]he trial court never cited or applied any `case law' pertaining to the polices [sic] activities or his ruling why it was voluntarily [sic]," the Court finds that the state courts recognized and applied correct Fourth Amendment precedent, including federal and state case law applying constitutional standards, in resolving Applicant's claim. (See State Court R., 10/11/06 Hrg. Tr., at 184-86, citing Georgia v. Randolph, 547 U.S. 103 (2006) (holding that "if a potential defendant with self-interest in objecting is in fact at the door and objects, the cotenant's permission does not suffice for a reasonable search, whereas the potential objector nearby but not invited to take pare in the threshold colloquy, loses out") and Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (recognizing that a "determination of consent to enter must `be judged against an objective standard'")); see also (ECF No. 9-15, at 6-9, citing federal and state case law, including People v. Reddersen, 992 P.2d 1176, 1181 (Colo. 2000) (quoting in part Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973) (recognizing that consent must be "the product of an essentially free and unconstrained choice by its maker and not the result of circumstances where the subject's will has been overborne and her capacity for self-determination critically impaired.")). Thus, the Court finds that Applicant was afforded a "procedural opportunity to raise or otherwise present" his Fourth Amendment claim in the state courts, and that the courts recognized and applied correct Fourth Amendment standards in refusing to suppress the evidence seized pursuant to the search of his apartment. See Gamble, 583 F.2d at 1165.

Applicant's mere disagreement with the result of his suppression hearing does not demonstrate that the state courts failed to recognize, or wilfully ignored, controlling legal standards. Thus, the Court finds that Applicant is not entitled to federal habeas relief for his Fourth Amendment claims. Accordingly, subclaims 1(a) and 3(a) will be dismissed.

B. Subclaim 2(a)(iv)(4)

In subclaim 2(a)(iv)(4), Applicant contends that his trial counsel was ineffective because counsel failed to conduct sufficient pretrial investigation and did not confront the victim "about [the] alleged offense(s)," which would have established the absence of an intent to kill. (ECF No. 13 at 7-8).

To prevail on his claim of ineffective assistance of counsel, Applicant must show that (1) counsel's legal representation fell below an objective standard of reasonableness; and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Judicial scrutiny of counsel's performance is highly deferential. Id. at 689 (there is a "strong presumption" that counsel's performance falls within the range of "reasonable professional assistance."). Counsel's decisions are presumed to represent "sound trial strategy;" "[f]or 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) (internal quotations omitted). In short, the "question is whether an attorney's representation amounted to incompetence under `prevailing professional norms,' not whether it deviated from best practices or most common custom." Strickland, 466 U.S. at 690.

Prejudice exits when there is "a reasonable probability that, but for counsel's defective representation, the result of the proceeding would have been different." Id. at 694. "The likelihood of a different result must be substantial, not just conceivable." Id. at 693.

Furthermore, under the AEDPA, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Richter, 562 U.S. at 105 (the standards created by Strickland and § 2254(d) are both "highly deferential" and when the two apply in tandem, review is "doubly" so). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. The Court need not address both prongs of the Strickland inquiry if an applicant's claim fails on one. Strickland, 466 U.S. at 697.

Finally, "counsel's decisions regarding how best to cross-examine witnesses presumptively arise from sound trial strategy." DeLozier v. Sirmons, 531 F.3d 1306, 1326 (10th Cir. 2008) (citing Ruchie v. Mullin, 417 F.3d 1117, 1124 (10th Cir. 2005)). This court also must presume that the decision not to examine a witness was reasonable and represented "sound trial strategy." Church v. Sullivan, 942 F.2d 1501, 1513 (10th Cir. 1991) ("The mere failure to cross-examine a witness does not necessarily require a finding of ineffective assistance of counsel."). Applicant bears the burden of demonstrating how more effective cross-examination might have changed the outcome of the trial. Id.

The Colorado Court of Appeals applied the Strickland standard and rejected Applicant's claim on the following grounds:

(ECF No. 9-4 at 9-10, 13-14).

Here, Applicant fails to demonstrate that the decision of the Colorado Court of Appeals was contrary to clearly established law. 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.

Applicant also fails to demonstrate that the state appellate court's decision was a unreasonable application of Strickland. Applicant argues extensively that counsel's performance was deficient because counsel failed to cross-examine the victim. Applicant, however, makes no reasonable argument that counsel failed to satisfy Strickland's deferential standard that the decision not to cross-examine the victim was based on reasonable trial strategy. See Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (decisions at trial only reach the level of constitutional ineffectiveness if they are "completely unreasonable, not merely wrong, so that [they] bear no relationship to a possible defense strategy"); see also Cannon v. Mullin, 383 F.3d 1152, 1163-64 (10th Cir. 2004) (holding that counsel's failure to impeach a witness with inconsistent grand jury testimony did not rise to a Sixth Amendment violation).

Furthermore, Applicant fails to demonstrate that the state court unreasonably applied the prejudice prong of the Strickland analysis. Applicant's arguments regarding prejudice primarily are premised on speculation that if defense counsel had confronted the witness in cross-examination, counsel "would have asked her questions pertaining to the applicable facts of the case, and would have had a reasonable probability of a different outcome. [The victim's] testimonies would have aided Mr. Miner demonstrated, and proven to the jury, and court that there was no intent to kill, no first degree assault, no first degree robbery, and no first degree attempt to commit murder." (ECF No. 46 at 12). However, the state court reasonably determined that those arguments lacked merit. (See ECF No. 9-4 at 14). In short, Applicant fails to show a reasonable probability that he would have been acquitted had counsel questioned the victim. Applicant's speculation that the outcome of his trial might have been different does not satisfy Strickland. See Strickland, 466 U.S. at 693 (the likelihood of a different result must be substantial, not just conceivable.). Thus, Applicant is not entitled to relief on subclaim 2(a)(iv)(4) because the state court's rejection 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, 462 U.S. at 103. Accordingly, the Court finds that the state appellate court's resolution of Applicant's claim was a reasonable application of Strickland, and subclaim 2(a)(iv)(4) will be dismissed.

C. Subclaims 2(c)(ii)(2), 2(c)(ii)(3), 2(d)(ii), and 2(d)(iv)

All of these subclaims stem from a common core of events following the verdict and fall within the coverage of the same set of Supreme Court cases.

1. Common background

The Colorado Court of Appeals summarized the events as follows:

(ECF No. 9-15 at 23-25).

Following the last post-verdict hearing, the trial court concluded that the jury had not been improperly exposed to extraneous information and denied Applicant's motion for a new trial. (ECF No. 9-16 at 19; see also State Court R., 1/26/07 Hrg. Tr. at 2-21).

Based on these events, Applicant asserts that the prosecutor engaged in prosecutorial misconduct when she had an ex parte communication with Juror W after the verdict (subclaim 2(c)(ii)(2)); and when she failed to seek a mistrial upon Juror W's revelation regarding potential exposure to Gray's Anatomy during the trial (subclaim 2(c)(ii)(3)). (ECF No. 13 at 9). Applicant also alleges that the trial judge exhibited judicial bias during the post-verdict hearings, when the judge questioned jurors individually from the bench about possible exposure to extraneous information as a result of Juror W's disclosure, without permitting Applicant (or the prosecution) to examine or cross-examine directly and confront the jurors, and instead "censored" questions submitted by the parties (subclaim 2(d)(ii)); and when the judge prohibited the parties from contacting jurors to investigate their possible exposure to extraneous information (subclaim 2(d)(iii)). (Id. at 9-11). Thus, all four subclaims center on allegations of juror misconduct and how the prosecution and trial court handled the issue.

2. Clearly established federal law

The clearly established federal law for purposes of improper jury contact is the Supreme Court's decision in Remmer v. United States, 347 U.S. 227 (1954). In Remmer, a juror was approached by an anonymous person who commented that the juror could make money by voting to acquit. 347 U.S. at 228. The juror reported the incident to the judge, who informed the prosecuting attorneys and requested that an FBI agent investigate the incident. Id. The trial court and prosecutors then considered the FBI report, and concluded that the statement was made in jest. Id. Neither the judge nor the prosecutors informed the defense about the incident. Id. The Supreme Court held that

Id. at 229. The Supreme Court further held that "[t]he presumption is not conclusive," but that the burden rests heavily upon the Government to establish, after a hearing in which "all interested parties [are] permitted to participate" that "such contact with the juror was harmless to the defendant." Id. at 229-30.

Based on this seminal Supreme Court case, the Tenth Circuit has held that when "a trial court is apprised of the fact that an extrinsic influence may have tainted the trial, the proper remedy is a hearing to determine the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant." United States v. Scull, 321 F.3d 1270, 1280 (10th Cir. 2003). This evidentiary hearing is often referred to as a "Remmer hearing." See Stouffer v. Trammell, 738 F.3d 1205, 1214 (10th Cir. 2013). Thus, the state trial court has a duty under clearly-established Supreme Court precedent "to conduct a Remmer hearing when genuine concerns of improper jury contact" arise. See id. (citing Smith v. Phillips, 455 U.S. 209, 215 (1982) (holding that the Supreme Court "has long held that the remedy for allegations of juror partiality is a hearing with all interested parties")).

While Remmer established a presumption of prejudice, the "circuit courts disagree about the contours of the Remmer presumption of prejudice." Stouffer, 738 F.3d at 1214 n. 5; see also Teniente v. Wyo. Atty. Gen., 412 Fed. Appx. 96, 102-06 (10th Cir. 2011) (providing an overview of the circuit split regarding the scope of the Remmer presumption). On direct review, the Tenth Circuit has held that "[i]n absence of Supreme Court Authority to the contrary," the Remmer presumption applies. Id.; see also Scull, 321 F.3d at 1280 n. 5. However, in collateral review, the Tenth Circuit has held that the Remmer presumption does not apply when the state court held an evidentiary hearing and the state's highest court reviewed the claim on its merits and made factual findings. See Stouffer, 738 F.3d at 1214 n. 5 (citing e.g., Malicoat v. Mullin, 426 F.3d 1241, 1250 (10th Cir. 2005) (presumption not applied in habeas cases; habeas courts can grant relief only if jury exposure to extraneous information has a "substantial and injurious effect or influence in determining the jury's verdict"); Cannon v. Mullin, 383 F.3d 1152, 1170 (10th Cir. 2004) ("this court has declined to apply Remmer in a § 2254 proceeding to determine whether jury contact was prejudicial.").

Thus, clearly established federal law requires a Remmer hearing as the remedy for a credible claim of improper jury exposure to extrinsic information. See, e.g., Stouffer, 738 F.3d at 1214 (the possibility that an extrinsic evidence may have tainted the trial triggers an obligation to conduct a hearing to determine "the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant"). Moreover, Remmer also mandates that "all interested parties [must be] permitted to participate." 347 U.S. at 230. However, even under Remmer, trial courts have "considerable discretion in determining whether any improper jury contact was prejudicial to the defendant." See e.g., Teniente, 412 Fed. Appx. at 106 (recognizing that there is no clearly established law governing the conduct of a Remmer hearing). See also Scull, 321 F.3d at 1280 ("[p]ursuant to Remmer, we normally review for abuse of discretion the district court's decision to hold a hearing and its determination whether any jury taint requires a new trial."); United States v. Bornfield, 145 F.3d 1123, 1132 (10th Cir. 1998) ("The district court has `broad discretion in determining how to handle allegations of juror bias'"). Some circuit courts also have suggested that Remmer "does not impose particular requirements for the conduct of hearings to examine juror bias." See Teniente, 412 Fed. Appx. at 106 (refusing to conclude that "these circuits' interpretation of [federa law] is unreasonable" and holding that state court's decision to "uphold the trial court's handling of the juror-contact issue was neither contrary to, nor involved an unreasonable application of, clearly established federal law.").

3. Analysis of subclaims 2(d)(ii) and (iv) (alleged procedural defects in trial court's post-verdict hearings)

Applicant argues that the trial court's post-verdict hearings on possible jury exposure to extraneous information were insufficient and contrary to federal law requirements. Specifically, he contends that the trial court did not allow the parties to fully participate in the Remmer hearing by not allowing the parties to personally question and cross-examine the jurors and prohibiting counsel from directly contacting the jurors to investigate the possible exposure to extraneous information. (See ECF No. 46 at 17-19). This Court cannot conclude that the state court's handling of the alleged jury taint was contrary to, or involved an unreasonable application of clearly established federal law.

After summarizing the relevant factual background, the Colorado Court of Appeals concluded that the trial court's procedure during the post-verdict hearings did not deny Applicant the ability to show juror bias. Specifically, the Colorado Court of Appeals explained that:

(ECF No. 9-15 at 25-27).

Although the trial court and the Colorado Court of Appeals did not cite Remmer, the state courts did not contradict or misapply clearly established federal law, which requires an evidentiary hearing to determine the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant. See Scull, 321 F.3d at 1280. Here, the trial court held an evidentiary hearing with representatives of both parties present in which the trial court adequately investigated and made specific factual findings about the challenged jury exposure to extraneous information. Specifically, the trial court held post-verdict hearings over eight days in which it questioned jurors individually regarding potential exposure to Gray's Anatomy or other external information during the trial and deliberations. (See ECF No. 9-15 at 24-25; see also State Court R., 12/28/06 Hrg. Tr., 1/2/07 Hrg. Tr., 1/3/07 Hrg. Tr., 1/5/07 Hrg. Tr., 1/8/07 Hrg. Tr., 1/9/07 Hrg. Tr., 1/17/07 Hrg. Tr., and 1/18/07 Hrg. Tr.). After considering the jurors' testimony, the trial court determined that extraneous information was not improperly before the jury during deliberations. (See State Court R., 1/26/07 Hrg. Tr. at 13). The state appellate court also reviewed Applicant's claim on the merits and made factual findings. Specifically, the state appellate court determined that the trial court fulfilled its procedural as well as its substantive duty in its chosen procedure for conducting its inquiry into possible jury exposure to extraneous information. (See ECF No. 9-15 at 23-27).

Thus, the state courts reasonably relied on federal law because the state trial court held a Remmer hearing to determine the substance and extent of the possible extraneous information, whether other jurors were aware of the alleged extraneous exposure, and whether the alleged exposure influenced any juror's decision about Applicant's conviction. Moreover, representatives from both parties were present during the hearings and had submitted written questions to ask the jurors. (See ECF No. 9-15 at 24; see also State Court R., 12/28/06 Hrg. Tr. at 4). Even under Remmer, it is reasonable to accord the trial court considerable discretion in determining whether any improper juror contact was prejudicial. See e.g., Scull, 321 F.3d at 1280; Teniente, 412 Fed. Appx. at 106.

Applicant challenges two procedures associated with the hearing: (1) that the trial court examined the jurors itself, rather than the parties, and pre-approved questions submitted by the parties; and (2) that the trial court prohibited the parties from independently contacting the jurors. (ECF No. 46 at 17-19). Applicant, however, fails to cite to any clearly established federal law that requires counsel's cross-examination or direct confrontation of the jurors during the evidentiary hearing or permits counsel to personally contact jurors to conduct its own investigation. Accordingly, Applicant has not demonstrated that the state courts' decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determine by the Supreme Court of the United States."

Applicant also fails to demonstrate that the state courts' decision "was based on an unreasonable determination of the facts in light of the evidence presented at trial." Based on a review of the state court record, Juror W testified that she told the prosecutor that his presentation would have been improved by the presence of a large diagram of the skull, such as something from Gray's Anatomy, but that she did not consult the book, did not mention the book to other jurors, and that it was not part of the jury's discussions during deliberations in reaching its verdict. (See State Court R., 1/2/07 Hrg. Tr. at 12-16). She also explained that while she wanted to look at Gray's Anatomy, she did not actually look at the book prior to deliberations or prior to the verdict. (Id.). Moreover, the majority of jurors did not recall any mention of the book during deliberations and all jurors testified that the verdict was not the result of any outside influence or extraneous information. (See State Court R., 12/28/06 Hrg. Tr. at 10-16; 1/2/07 Hrg. Tr. at 6-7, 20-24, 26-30; 1/3/07 Hrg. Tr. at 67-68; 1/5/07 Hrg. Tr. at 76-77; 1/8/07 Hrg. Tr. at 5-7; 1/9/07 Hrg. Tr. at 5-8, 11-12; 1/17/07 Hrg. Tr. at 94-96, 100-01; 1/18/07 Hrg. Tr. at 110-11; 1/26/07 Hrg. Tr. at 10-14, 21). Based on the state courts' factual findings, which are presumed correct, this Court finds that Applicant has not rebutted that presumption by clear and convincing evidence. Accordingly, Applicant is not entitled to habeas relief on subclaims 2(d)(ii) and 2(d)(iv).

4. Analysis of subclaims 2(c)(ii)(2) and (ii)(3) (alleged prosecutorial misconduct in handling potential jury exposure to extraneous information)

The state courts also did not contradict or misapply clearly established federal law in resolving Applicant's claims alleging misconduct by the prosecutor in his "ex parte" communication with Juror W following her comments regarding Gray's Anatomy and in failing to seek a mistrial upon that revelation.

The clearly established federal law for purposes of a claim of prosecutorial misconduct 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). In Darden, the Supreme Court explained that prosecutorial misconduct violates the Constitution only when the misconduct "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" 477 U.S. at 181 (quoting Donnelly v. DeChristofor, 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)).

Another controlling Supreme Court decision regarding a claim of prosecutorial misconduct in the context of alleged jury misconduct is Smith v. Phillips, 455 U.S. 209 (1982). In Smith, a juror did not disclose that he had applied for a job as an investigator with a federal law enforcement agency during a state criminal trial. 455 U.S. at 212. When the prosecutors in the case learned of the juror's mid-trial application, they did not disclose it to the court or defense and the defense did not learn of the juror's application until several weeks later. Id. at 212-13. In federal habeas review, the Supreme Court reversed the district and appellate courts' orders for a new trial. Id. at 214-15. The Supreme Court observed that "the aim of due process `is not punishment of society for the misdeed of the prosecutor but avoidance of an unfair trial to the accused," and thus absent prosecutorial bad faith, inadvertent prosecution misconduct in handling an incident of potential juror misconduct is not grounds for habeas relief unless the misconduct materially prejudices the defendant. Id. at 219-21. Thus, the Supreme Court held that any prosecutorial misconduct did not undermine the state courts' ability to conduct a Remmer hearing regarding the juror's job application after trial, and thus no constitutional violation occurred. Id. at 220-21.

Respondents concede, and the Court agrees that the Colorado Court of Appeals did not expressly address, Applicant's subclaims regarding prosecutorial misconduct. The Court, however, owes deference to the state appellate court's result and must uphold the decision "unless [the Court's] independent review of the record and pertinent federal law persuade [the Court] that [the state court's] 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." Aycox v. Lytle, 196 F.3d 1174, 1177-78 (10th Cir. 1999) (the Court "owe[s] deference to the state court's result, even if its reasoning is not expressly stated"). "[T]his independent review should be distinguished from a full de novo review of the petitioner's claims." Id.

Based on the Court's independent review of the record and the clearly established federal law set forth above, the Court concludes that Applicant fails to demonstrate a constitutional violation based on the prosecutor's failure to seek a mistrial due to Juror W's vague comment regarding Gray's Anatomy and the alleged "ex parte" communication with Juror W regarding the subpoena. The prosecutor disclosed the communications it had with Juror W and the state trial court conducted a Remmer hearing to determine the substance and extent of the possible extraneous information, whether other jurors were aware of the alleged extraneous exposure, and whether the alleged exposure influenced any juror's decision about Applicant's conviction. (See ECF No. 9-15 at 24-25; see also State Court R., 12/15/06 Hrg. Tr. at 5-8; 12/28/06 Hrg. Tr. at 4; and 1/26/07 Hrg. Tr. at 2-21). Thus, there is no evidence that any alleged prosecutorial misconduct interfered with the Remmer hearing.

Furthermore, Applicant's vague and unsubstantiated allegations that the prosecutor engaged in misconduct are not compelling evidence of actual prosecutorial bad faith. (See ECF No. 46 at 6-7). Therefore, Applicant is not entitled to relief because he fails to allege facts that demonstrate the alleged prosecutorial misconduct rendered his trial and subsequent Remmer hearing fundamentally unfair. Thus, Applicant is not entitled to relief on subclaims 2(c)(ii)(2) and 2(c)(ii)(3).

D. Subclaim 2(d)(I)

In subclaim 2(d)(I) Applicant alleges that his waiver of his right to counsel during his police interrogation was not knowing and intelligent because he did not understand he had a right to the presence of counsel during the interrogation.

The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V. Under the Fifth Amendment, statements a suspect makes during a custodial interrogation may not be used against him in court unless the government first advises the suspect of his rights as set forth in Miranda v. Arizona, 384 U.S. 436, 479 (1966). These rights include the right to be "clearly informed," prior to custodial questioning, that the suspect has "the right to consult with a lawyer and to have the lawyer with him during interrogation." Miranda, 384 U.S. at 471; Florida v. Powell, 559 U.S. 50, 60 (2010).

The Supreme Court has repeatedly declined to dictate the particular words in which the Miranda warnings must be conveyed. See Powell, 559 U.S. at 60; see also Duckworth v. Eagan, 492 U.S. 195, 202 (1989) (commenting that the Court has never required that Miranda warnings be given in the exact form described in that decision); California v. Prysock, 453 U.S. 355, 359-60 (1981) (remarking that Miranda itself indicated that no talismanic incantation was required to satisfy its strictures). In determining whether police officers adequately imparted the Miranda warnings, "[t]he inquiry is simply whether the warnings reasonably `conve[y] to [a suspect] his rights as required by Miranda.'" Powell, 559 U.S. at 60 (quoting Duckworth, 492 U.S. at 203, quoting Prysock, 453 U.S. at 361).

Moreover, a defendant's waiver of his Miranda rights must be voluntary, knowing, and intelligent. Miranda, 384 U.S. at 444; United States v. Curtis, 344 F.3d 1057, 1066 (10th Cir. 2003). To be voluntary, the waiver must be the product of a free and deliberate choice and not intimidation, coercion, or deception. Colorado v. Spring, 479 U.S. 564, 573 (1987); Curtis, 344 F.3d at 1066. In addition, the waiver must have been made with a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it. Spring, 479 U.S. at 573; Curtis, 344 F.3d at 1066.

To determine whether a waiver was valid, a court must consider the totality of the circumstances. Spring, 479 U.S. at 573; Curtis, 344 F.3d at 1066. A statement is involuntary if coercive police activity played a significant role in inducing the statement. Colorado v. Connelly, 479 U.S. 157, 167 (1986). The question of whether a confession was voluntary is a mixed question of law and fact subject to review under § 2254(d)(1). Trice v. Ward, 196 F.3d 1151, 1169 (10th Cir. 1999) (citing Miller v. Fenton, 474 U.S. 104, 111-12 (1985)).

The Colorado Court of Appeals rejected Applicant's Miranda claim on the following grounds:

(ECF No. 9-15 at 9-14).

The Court has reviewed carefully the state court record. At the suppression hearing, Detective Wagner testified that she verbally advised Applicant of his Miranda rights, and that Applicant stated he understood his rights and even repeated some of them in his own words. (See State Court R., 10/11/06 Hrg. Tr. at 104-116; see also Tr. of 2/2/06 Taped Interview with Det. Wagner and Ira Miner). She also testified that she provided Applicant with a written form to advise him of his Miranda rights and that Applicant wrote his initials next to each one. (Id.). Finally, Detective Wagner testified that Applicant spoke and understood English, did not appear intoxicated, and answered questions appropriately, appeared coherent and alert, and appeared to understand the gravity of the situation. (10/11/06 Hrg. Tr. at 100-114, 116).

In denying the motion to suppress, the trial court considered the totality of the circumstances and found that the Miranda warnings were adequate and sufficient; Applicant's waiver of his Miranda rights was knowing, intelligent, and voluntary; and found that Applicant's statements that he did not have a lawyer and that he "guessed that's out of the question" did not render his waiver unknowing. (See State Court R., 10/11/06 Hrg. Tr. at 131-133, 176-79; 10/25/06 Hrg. Tr. at 86-91). The state court's factual findings are entitled to a presumption of correctness under § 2254(e)(1).

Applicant fails to rebut the presumption by clear and convincing evidence. The Court cannot find, after considering the totality of the circumstances, that the state courts' ruling that Applicant's Miranda waiver was knowing, intelligent, and voluntary despite his alleged confusion, to be contrary to or an unreasonable application of Supreme Court precedent. Thus, subclaim 2(d)(ii) will be dismissed.

IV. ORDERS

For the reasons discussed above, it is

ORDERED that the amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 13), filed by Ira Miner, on January 24, 2014, is DENIED and this action 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) because Applicant has not made a substantial showing that jurists of reason would find it debatable whether the jurisdictional and procedural rulings are correct and whether the Application states a valid claim of the denial of a constitutional right. 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 would not be taken in good faith 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.