Brooks v. Raemisch

• Decision Date: 13 January 2015
• Docket Number: Civil Action No. 13-cv-03013-REB
• Parties: KEITH BROOKS, Applicant, v. RICK RAEMISCH, Exec Director Colorado Dept of Corrections, BOBBY BONNER, Warden, Limon Correctional Facility, and JOHN SUTHERS, Attorney General, State of Colorado, Respondents.
• Court: U.S. District Court — District of Colorado

KEITH BROOKS, Applicant, v. RICK RAEMISCH, Exec Director Colorado Dept of

Corrections, BOBBY BONNER, Warden,

Limon Correctional Facility, and JOHN SUTHERS,

Attorney General, State of Colorado, Respondents.

Civil Action No. 13-cv-03013-REB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

January 13, 2015

District Judge Robert E. Blackburn

ORDER ON APPLICATION FOR A WRIT OF HABEAS CORPUS

Blackburn, Judge

This matter is before me on the [Amended] Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Amended Application") [# 17-1],¹ filed March 10, 2014, by Applicant Keith Brooks, through counsel. Respondents answered the Amended Application [# 32], and Applicant filed a traverse [# 39]. After reviewing the pertinent portions of the record in this case including the Amended Application, the Brief in Support [#11], the Answer, the Traverse, and the state court record, I conclude that the Application should be denied.

I. BACKGROUND

In 2007, Applicant was convicted of attempted first degree murder after deliberation of a peace officer, attempted second degree murder, first degree assault of a peace officer, felony menacing, and two counts of first degree burglary, in El Paso County District Court Case No. 05CR5346.² He was adjudicated a habitual offender and sentenced to the Colorado Department of Corrections for a term of 144 years.

The Colorado Court of Appeals summarized the relevant facts on direct review of Applicant's convictions, in People v. Keith C. Brooks (Brooks I), No. 07CA0997 (Colo. App. Nov. 26, 2008):

[Law enforcement officers approached a garage based on a reported burglary in progress].

Upon entering, they observed a male kneeling down, who immediately ran into the residence. Deputy Gaenzle ran to the door leading into the residence, tried to kick it open, and continued to announce the deputies' presence. Deputy Gaenzle repeatedly attempted to kick the door open, but each time the door would open approximately six inches and then would be slammed closed. He observed a shoulder or elbow pushing against the door to keep it closed. After kicking the door three times, a gunshot was fired through the closed door, went by Deputy Gaenzle's face, and continued through the garage. The deputies exited the garage for their safety.

After exiting the garage, the deputies saw a man run across the backyard and climb over a wooden fence. Both deputies testified that this individual had a firearm in his hand. Deputy Gaenzle stated that he fired a shot at the man when the man raised his gun up as he climbed the fence. The man fell over the other side of the fence and fled the scene.

Three days later, [Applicant] was arrested and transported to the hospital to treat a gunshot wound to his buttocks. In a police interview at the hospital, [Applicant] stated that he had been shot while attempting to escape over a fence after burglarizing a residence with his cohort, Nicholas Acevedo. [Applicant] initially indicated that both he and Acevedo were armed during the burglary, but then stated that only Acevedo had a gun.

[# 2-2, at 5-6]. Acevedo was shot and killed following a high speed chase a few weeks after the burglary. [Id. at 7].

On direct appeal, the Colorado Court of Appeals affirmed Applicant's convictions, except for one of the first degree burglary convictions, which the state appellate court vacated because the two convictions and sentences for first degree burglary would constitute multiple punishments for the same criminal conduct. [Id. at 22-24, 28]. The Colorado Court of Appeals remanded the case for the trial court to issue a new mittimus to reflect only one first degree burglary conviction and concurrent sentences for attempted first degree murder and first degree assault. [Id. at 27-28].

Applicant was resentenced by the state district court on November 24, 2009 and did not appeal. [# 17-1, at 3]. Thereafter, he filed a motion for state post conviction relief, pursuant to Colo. Crim. P. Rule 35(c), which the state district court denied without a hearing. The Colorado Court of Appeals affirmed the district court's order in People v. Keith Clayton Brooks (Brooks II), 10CA2272 (Colo. App. May 24, 2012) (unpublished). [# 2-8]. The Colorado Supreme Court denied certiorari review on January 28, 2013. [# 2-10].

Mr. Brooks initiated this action on November 4, 2013. He asserts the following claims in his Amended Application:

(1) Applicant was denied a fair trial, in violation of his Sixth and Fourteenth Amendment rights, when the court allowed the prosecution to admit evidence of other burglaries. [# 17-1, at 22-23].

(2) Applicant's Sixth Amendment right to receive the effective assistance of counsel was violated when his lawyer, who had an actual conflict of interest, failed to object to the confusing jury instructions on complicity orrequest proper instructions. Direct appeal counsel was also ineffective in failing to raise the issue of the inadequate complicity instructions. [Id. at 23-24].

Respondents concede that the Application is timely pursuant to the AEDPA one-year limitation period, 28 U.S.C. § 2244(d)(1). [# 12, at 3-5]. Respondents further concede that Applicant exhausted state remedies for his claims. [Id. at 6]. I address below the merits of Applicant's claims under the deferential AEDPA standard of review.

II. LEGAL STANDARDS

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).

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, 131 S. Ct. 770, 784-85 (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 784. 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 courtadjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-85. 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 784. 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 Richter presumption is also applicable when a state-court opinion addresses some but not all of those claims. Johnson v. Williams, 133 S. Ct. 1088, 1094-98 (2013). For purposes of § 2254(d), when a state court rules against a defendant in an opinion that rejects some of the defendant's claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Id. at 1094-96. Federal habeas courts should not assume that any unaddressed federal claim simply was overlooked because a state court does not uniformly discuss separately every claim referenced by a defendant. 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 theapplicant 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,

clearly established law consists of Supreme Court holdings in cases where the facts are at least closely-related or similar to the case sub judice. Although the legal rule at issue need not have had its genesis in the closely-related or similar factual context, the Supreme Court must have expressly extended the legal rule to that context.

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.

A state-court decision is contrary to clearly established federal law if: (a) "the state court applies a rule that contradicts the governing law set forth in Supreme Court cases"; or (b) "the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court

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