Cutshall v. Colorado

• Decision Date: 11 June 2012
• Docket Number: Civil Action No. 11-cv-00547-PAB
• Parties: NICHOLAS CUTSHALL, Applicant, v. PEOPLE OF THE STATE OF COLORADO and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

NICHOLAS CUTSHALL, Applicant,

v.PEOPLE OF THE STATE OF COLORADO and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

Civil Action No. 11-cv-00547-PAB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

DATED June 11, 2012

Judge Philip A. Brimmer

ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS

This matter is before the Court on Applicant Nicholas Cutshall's pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 1], filed on March 4, 2011. Respondents have filed an Answer [Docket No. 20]. Applicant has not filed a Traverse. Having considered the Application and Answer, along with the state court record, the Court concludes that the Application should be denied.

I. BACKGROUND

On August 3, 2007, a jury in the District Court for the City and County of Denver, Colorado ("the trial court"), Case No. 06CR3968, convicted Applicant of one count of sexual assault on a child (pattern of abuse) and five counts of sexual assault on a child. State Court R. 8/03/07 Trial Tr., at 92-93. The pertinent facts were summarized by the Colorado Court of Appeals as follows:

At the time of the alleges assaults, the victims, twin sisters, DH1 and DH2, were seven years old. They lived with their sixteen-year-old sister, brother, father, and father's fiancée. [Applicant] was a foster child inthe twins' grandmother's home. The grandmother lived less than two miles away from the twins, and [Applicant] visited their home regularly. In June 2006, DH1 told her older sister that [Applicant] took pictures of DH2's "private areas" and then DH1 pointed to "her vaginal area." DH2 confirmed that [Applicant] had taken the pictures. When the older sister asked whether [Applicant] had ever done anything to her, DH1 said that he had touched her in her vaginal areas more than once during the past year. The older sister disclosed these conversations to the grandmother, who called the police.

An investigating officer interviewed the [Applicant]. During the interview, [Applicant] admitted to having sexual contact with the children and, based upon these statements, was placed under arrest. [Applicant] later testified that he never assaulted the twins and that he only made these confessions because he was scared.

Both children were interviewed by a forensic interviewer and each described various incidents of sexual contact involving [Applicant]. DH1 told the interviewer that she was worried about her sister because of the pictures [Applicant] had taken. She said that [Applicant] took her and her sister into their older sister's room, had sexual contact with DH1, and would not let them leave the room. DH1 also said that [Applicant] engaged in conduct with DH2 amounting to sexual contact. DH2 told the interviewer that [Applicant] "did something bad." She also said that he pulled her into her sister's bedroom and took a picture of her upper legs.

People v. Cutshall, No. 07CA2413 (Colo. App. Nov. 19, 2009) (unpublished opinion), Docket No. 9-4, at 1-2.

The state trial court sentenced Applicant to a prison term of eighteen years to life on the pattern count and concurrent terms of six years to life on each of the remaining counts. State Court R. 10/26/07 Sentencing Hrg., at 31-32.

The Colorado Court of Appeals affirmed Applicant's conviction on direct appeal. Docket No. 9-4. The Colorado Supreme Court denied certiorari review on March 22, 2010. Docket No. 9-6.

Applicant filed a motion for post conviction relief to reconsider his sentence pursuant to Colo. Crim. P. Rule 35(b) on August 18, 2010, which the trial court denied on September 2, 2010. Docket No. 9-1. He did not appeal the trial court's order.

II. HABEAS CLAIMS

Applicant filed his § 2254 Application on March 4, 2011. He asserts three claims: (1) the trial court erred in admitting the child victim's hearsay statements at trial; (2) the trial court erred in denying his motion to suppress coerced inculpatory statements he made during a police interrogation; and (3) the trial court deprived him of a fair trial when it: (a) improperly admitted a DVD recording of Applicant's police interview; (b) erroneously allowed the prosecution's investigator to discuss interrogation techniques; and (c) erroneously denied the motion for a mistrial.

Upon preliminary review of the Application, Magistrate Judge Boyd N. Boland ordered the Respondents to file a pre-answer response addressing the affirmative defenses of timeliness and exhaustion of state remedies. Respondents conceded that the action was timely under the AEDPA, but asserted that claims 1, 3(b) and 3(c) were not exhausted because Applicant failed to present those claims to the state courts as federal constitutional claims. The Court disagreed with Respondents and found that Applicant exhausted state court remedies for all of his claims. See July 14, 2011 Order [Docket No. 13]. The case was drawn to a District Judge and to a Magistrate Judge. Id. The Court reviews the merits of the claims below.

III. LEGAL STANDARD

A. Habeas Corpus Actions

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). 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 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,

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 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, or unreasonably refuses to extend, a legal principle from Supreme Court precedent to a new context where it should apply.

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 theirindependent judgment would conclude the state court misapplied Supreme Court law." Maynard, 468 F.3d at 671. 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. Richter, --- U.S. ----, 131 S.Ct. 770, 786 (2011) (internal citation and 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. 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, --- U.S. ----, 131 S.Ct. 1388, 1398 (2011).

Under this standard, "only...