Delmart E. J. M. Vreeland v. Zupan

• Decision Date: 20 December 2016
• Docket Number: Civil Action No. 14-cv-02175-PAB
• Parties: DELMART E. J. M. VREELAND, III, v. DAVID ZUPAN, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

DELMART E. J. M. VREELAND, III, v. DAVID ZUPAN, and THE ATTORNEY GENERALOF THE STATE OF COLORADO, Respondents.

Civil Action No. 14-cv-02175-PAB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

December 20, 2016

Judge Philip A. Brimmer

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

I. BACKGROUND

Applicant Delmar E. J. M, Vreeland, III, filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 that challenges the validity of his criminal conviction in Case No. 04CR706 in the District Court for Douglas County, Colorado. Applicant originally filed the Application on August 6, 2014, but then, pursuant to the August 11, 2014 Order to Amend, he filed an Amended Application, Docket No. 8, on September 29, 2014. The September 29 Amended Application, which asserts thirty-two claims, of which one has five subparts, is the operative pleading in this action.

On September 29, 2014, Magistrate Judge Gordon P. Gallagher directed Respondents to file a Pre-Answer Response and to address the affirmative defenses of timeliness under 28 U.S.C. § 2254(d), and exhaustion of state court remedies under 28 U.S.C. 2254(b)(1)(A), if Respondents intended to raise either or both in this action.

After granting both parties extensions of time, Respondents filed a Pre-Answer Response and Applicant filed a Reply. Magistrate Judge Gallagher reviewed the Response and Reply and directed Applicant to show cause why the action should not be dismissed as a mixed petition. On March 4, 2015, counsel entered an appearance on Applicant's behalf and requested a ninety-day extension of time to respond to the Order to Show Cause. Magistrate Judge Gallagher granted the request for an extension of time, but allowed Applicant only sixty days to respond. Applicant filed a Response, Docket No. 32, on May 1, 2015, and Respondents filed a Reply, Docket No. 34, on May 19, 2015.

This Court, upon review of the Response to the Order to Show Cause and Applicant's Reply, filed an Order to Dismiss in Part and for Answer on December 21, 2015. See Docket No. 46. In the December 21 Order, the Court determined that Claims Six through Nine, Eleven through Twenty-Six, subpart (a) of Twenty-Seven, Twenty-Nine, and Thirty are procedurally barred from federal habeas review. Docket No. 46 at 19. The Court further determined that Claims Four, Thirty-One, and Thirty-Two are not cognizable in a federal habeas action, and subparts (b)-(e) of Claim Twenty-Seven and Claim Twenty-Eight are unexhausted. Id.

The remaining claims are as follows:

1) Trial court forced Applicant to jury trial without counsel and notification in violation of Sixth Amendment;

2) Trial court forced Applicant to trial without counsel even though Applicant was incompetent violating due process rights;

3) Trial court denied a competency hearing violating due process rights;5) Jury instructions did not include the date and location of the crime violating due process rights; and

10) Trial court failed to limit the use of certain evidence under "CRE 404(B) and C.R.S. § 16-10-301" by the jury regarding the age of state witnesses, [J.O. and L.A.]¹, and when they first met Applicant in violation of the Sixth and Fourteenth Amendments.

Docket No. 8 at 14-16, 20.

Respondents then were directed to file an answer that fully addresses the merits of Claims One through Three, Five, and Ten. Id. at 20. Respondents requested an extension of time to file an answer, which was granted. Prior to Respondents filing an answer, Applicant filed a Motion to Amend or Reconsider Ruling. See Docket No. 53. In the Motion to Amend or Reconsider, Applicant requests that the Court alter, amend, or reconsider the December 21 ruling and allow Applicant to litigate his actual innocence claim "in conjunction with his claims that he was forced to trial without counsel, and while incompetent, in violation of his Sixth Amendment rights" in this action. See Docket No. 53 at 7-8. Respondents filed a Response to Motion to Reconsider, Docket No. 55, on January 25, 2016, and Applicant filed a Reply to State's Response to Motion to Amend or Reconsider, Docket No. 59, on February 8, 2016.

Subsequently, Respondents filed an Answer on February 16, 2016, addressing the merits of Claims One through Three, Five, and Ten. Docket No. 60. Applicant filed a Reply to the Answer, Docket No. 65, on March 31, 2016, and an Amended Reply, Docket No. 68, on April 21, 2016. The case was stayed from March 16, 2016 until May 2, 2016 because Applicant appealed this Court's denial of his request for bail and the statecourt records were not available to this Court until the Tenth Circuit returned the records following the disposition of Applicant's appeal. The Court, on September 9, 2016, denied the Motion to Amend or Reconsider Ruling.

The factual background of Applicant's crimes and convictions is summarized in the opinion of the Colorado Court of Appeals (CCA), addressing his direct appeal as follows:

Defendant, Delmart Michael Edward Vreeland, appeals the judgment of conviction entered upon jury verdicts finding him guilty of inducement of child prostitution, solicitation of child prostitution, sexual exploitation of children, sexual assault, contributing to the delinquency of a minor, and distribution of a controlled substance.

We affirm.

I. Background

Defendant promised to pay two teenage boys if they allowed him to photograph them in their underwear and post the photographs on a pornographic website. After providing the teenagers with alcohol and cocaine, defendant took photographs of the boys and sexually assaulted them.

Docket No. 17-2 at 2.

II. ANALYSIS

A. Standard of Review

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).

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, 98 (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. (collecting cases). 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 court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99. "Where there has been one reasoned state judgment rejecting a federal claim," federal habeas courts should presume that "later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

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 98. 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, this 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 ofthe 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 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 arematerially 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)] (

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