Bruce v. Clementi

• Decision Date: 26 June 2017
• Docket Number: Civil Action No. 15-cv-01653-REB
• Parties: DOUGLAS EDWARD BRUCE, Petitioner, v. MARIANNE CLEMENTI, Probation Officer, STATE OF COLORADO, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

DOUGLAS EDWARD BRUCE, Petitioner, v. MARIANNE CLEMENTI, Probation Officer,

STATE OF COLORADO, and

THE ATTORNEY GENERAL OF THE

STATE OF COLORADO, Respondents.

Civil Action No. 15-cv-01653-REB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

June 26, 2017

District Judge Robert E. Blackburn

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

Blackburn, J.

This matter is before me on the pro se Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) [#13]¹ and Petitioner's Amended Section 2254 Petition and Attachments (Supplement) [#14] filed on October 7, 2015, by petitioner Douglas Bruce. The respondents filed an answer [#33]. The petitioner did not respond to the answer.

After reviewing the pertinent portions of the record in this case, including the Petition, the Supplement, the answer, and the state court record [#34], I conclude that the Petition and Supplement should be denied and this action dismissed.

I. Background

Petitioner is challenging the validity of his conviction and sentence in Denver County District Court case number 11CR10091 The factual background of petitioner's crimes and conviction is summarized in the Colorado Court of Appeals' (CCA's) direct appeal opinion as follows:

In 2001, Bruce established Active Citizens Together (ACT), a Colorado nonprofit corporation that he controlled.

In April 2006, Bruce filed his Colorado individual income tax return for the 2005 tax year. The return showed no taxable income, despite the fact that Bruce had earned wages of nearly $40,000, and he requested a refund of $1670. One month later, the Colorado Department of Revenue (the Department) sent Bruce a letter informing him that his return had been selected for examination and requesting that he submit documentation substantiating the figures on his return within thirty-one days.

Bruce did not immediately respond to the Department's letter, and he did not file Colorado individual income tax returns for the 2006 and 2007 tax years.

In April 2009, Bruce responded to the Department's May 2006 request for documentation. Bruce informed the Department that despite receiving a salary, he had no taxable income in 2005 because he had donated more than the amount of his salary to ACT.

Upon review of Bruce's documentation and further Case investigation, the Department discovered numerous discrepancies, including the following:

Bruce deposited almost $2,000,000 into ACT's account, which apparently accrued substantial interest, but neither Bruce's nor ACT's tax returns reported such interest. In a conversation with a Department investigator, Bruce characterized a large deposit from him to ACT as a loan.

Bruce used ACT funds for personal purposes.

ACT engaged in substantial lobbying activities, contrary to its tax exempt nonprofit status.

Based on its review and investigation, the Department determined that Bruce's 2005 tax return was materially false because it did not include all of Bruce's income.

Subsequently, a grand jury indicted Bruce for (1) tax evasion; (2) filing a false tax return; (3) attempting to influence a public servant, based on Bruce's April 2009 response to the Department's May 2006 inquiry; and (4) failing to file a tax return or to pay tax. The case proceeded to a jury trial, and the jury convicted Bruce as charged.

[#9-8 at 2-3].

Petitioner initiated this action on August 3, 2015. I conducted a preliminary review and dismissed all claims as procedurally barred from federal habeas review, except for Claims Twenty, Twenty-Eight, Thirty, Thirty-One, Thirty-Two, and Thirty-Three. [#31]. The claims for relief that remain are

(20) Trial court openly sided against Petitioner during the trial by making derogatory remarks about Petitioner's witnesses;²

(28) Criminal charges are arbitrary and capricious when a civil resolution is available for the same action;

(30) Prosecution improperly informed the jury about a pretrial motion Petitioner filed regarding the statute of limitations on felony prosecutions;

(31) "The AG engaged in scurrilous personal attacks on petitioner throughout the trial to inflame juror passions" by stating Petitioner is notorious, a charlatan, outrageous, a diatribe, and infamous;

(32) Trial court denied Petitioner's presentation of character evidence from two Colorado congressmen; and

(33) Trial court denied Petitioner's redirect of his own testimony.

II. Analysis

A. Standard of Review

I must construe the Petition and Supplement liberally because the petitioner is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I cannot 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:

(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).

I review 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 pursuant to § 2254(d)(1) is whether the petitioner seeks to apply a rule of law that was clearly established by the Supreme Court of the United States at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). The "review under § 2254(d) is limited to the record that was before the state court that adjudicated the prisoner's claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181 (2011). "Finality occurs when direct state appeals have been exhausted and a petition for writ of certiorari from this Court has become time barred or has been disposed of."Greene v. Fisher, 565 U. S. 34, 39 (2011) (citing Griffith v. Kentucky, 479 U.S. 314, 321, n. 6 (1987).

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." Williams, 529 U.S. 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 my inquiry pursuant to § 2254(d)(1). See id. at 1018. If a clearly established rule of federal law is implicated, I 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 and nevertheless arrives at a result different from [that] precedent." Maynard [v. Boone], 468 F.3d [665,] 669 [(10th Cir. 2006)] (internal quotation marks and brackets omitted) (quoting Williams, 529 U.S. at 405). "The word 'contrary' is commonly understood to mean 'diametrically different,' 'opposite in character or nature,' or 'mutually opposed.' " Williams, 529 U.S. at 405 (citation omitted).

A state court decision involves an unreasonable application of clearly established federal law when it identifies the correct governing legal rule from Supreme Court cases, but unreasonably applies it to the facts. Id. at 407-08. Additionally, we have recognized that an unreasonable application may occur if the state court either unreasonably extends, orunreasonably refuses to extend, a legal principle from Supreme Court precedent to a new context where it should apply. Carter [v. Ward], 347 F3d. [860,] 864 [10th Cir. 2003] (quoting Valdez [v. Ward], 219 F.3d [1222] 1229-30 [10th Cir. 2000]).

House, 527 F.3d at 1018.

My inquiry pursuant to the "unreasonable application" clause is an objective one. 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 (internal quotation marks omitted). In addition,

evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations. [I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.

Harrington v. Richer, 562 U.S. 86, 101 (2011) (internal quotation marks and citation omitted). I "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. "[E]ven a strong case for relief does not mean the state court's contrary conclusion was...