Applicant v. Falk

• Decision Date: 08 April 2015
• Docket Number: Civil Action No. 13-cv-03102-WJM
• Parties: IRA MINER Applicant, v. JAMES FALK, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

IRA MINER Applicant, v. JAMES FALK, Warden, andTHE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

Civil Action No. 13-cv-03102-WJM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

April 8, 2015

Judge William J. Martínez

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

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) challeng ing 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 convictionand 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 Apr. 15, 2010) (unpublished decision).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 Jan. 17, 2013) (unpublished).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:

(1) The trial court "did not have jurisdiction" over the case because

(a) Applicant was arrested at gunpoint and "in fear of physical retribution" by arresting officers, such that any statements he made during the arrest were coerced;

(b) Arresting officers failed to advise him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), prior to asking for his consent to search his home;

(c) The search of his home was without a warrant, and the consent ofhis wife was coerced "under Color of Authority" in violation of constitutional rights and a state statute;

(d) There was insufficient evidence that he intended to kill the victim; the murder charge was based on the victim's age "and other prejudicial assumptions;" and

(e) The victim's identification of Applicant was "coerced" when police told her that defendant was her attacker.

(ECF No. 13 at 5-6).

(2) The trial court sanctioned violations of the Sixth Amendment, including:

(a) Ineffective assistance of counsel because trial counsel:

(I) Had no experience representing criminal defendants;

(ii) Made "no real attempt" to devote the time necessary to communicate adequately with him;

(iii) Failed to introduce "key elements and specific facts" that would have influenced the jury in his favor; the jury was "left ignorant" of "most of [Applicant's] information;"

(iv) Failed to conduct sufficient pretrial investigation to:

(1) seek exclusion of "any mention" of the word "homicide" from the trial;

(2) discover a videotaped confession made in the absence of counsel;

(3) request an evaluation of the victim's mental condition "to test the credibility of her statements and . . . what actually happened at the scene;" and

(4) confront the victim "about [the] alleged offense(s)," which would have established the absence of an intent to kill;

(v) Requested continuances and delays, resulting in the deprivation of his speedy trial right under 18 U.S.C. § 3161(a); and (vi) Cumulative error based upon ineffective assistance of counsel, prosecutorial misconduct, and trial court error;

(b) Insufficient evidence that Applicant was "involved in anything more than a simple theft[];"

(c) Prosecutorial misconduct:

(I) In charging attempted first-degree murder solely for the purpose of "aggrandizement in a simple aggravated theft case;"

(ii) In:

(1) withholding information that juror W. had mentioned to the prosecution, after trial, something about looking at Gray's Anatomy during trial;

(2) subsequently having an ex parte conversation with juror W; and

(3) failing to seek a mistrial based on juror W.'s alleged misconduct;

(d) Judicial bias, in that the trial judge:

(I) Erroneously ruled that Applicant validly waived his Miranda rights prior to his police interview, even though Applicant did not understand that a lawyer would be appointed for him at state expense if he requested one, thereby permitting introduction of Applicant's videotaped statement made in the absence of counsel;

(ii) 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;

(iii) Colluded with the prosecution to overlook juror W.'s alleged misconduct;

(iv) Erroneously prohibited the parties from contacting jurors to investigate their possible exposure to extraneous information; (v) Failed to declare a mistrial upon learning that any juror might have consulted extraneous information;

(e) The jury was exposed to extraneous information, as evidenced by a comment by juror W. in a post-trial discussion with one of the prosecutors making reference to looking at Gray's Anatomy.

(Id. at 7-11).

(3) Violations of the Fourth Amendment in that:

(a) Applicant was in "physical and psychological distress" and did not consent to the search at the time it was conducted; and

(b) Officers obtained consent to search from Applicant's wife by being "deliberately deceitful" and "us[ing] pressure" on her to gain entry.

(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:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

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 ...