Everett v. Long

• Decision Date: 24 June 2021
• Docket Number: Civil Action No. 1:19-cv-03563-DDD
• Parties: ELON EDWARD EVERETT, Applicant, v. RYAN LONG, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

ELON EDWARD EVERETT, Applicant, v. RYAN LONG, and THE ATTORNEY GENERAL OF

THE STATE OF COLORADO, Respondents.

Civil Action No. 1:19-cv-03563-DDD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

June 24, 2021

Judge Daniel D. Domenico

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed by pro se Applicant Elon Edward Everett. (Doc. 1.) Mr. Everett challenges the validity of his conviction in Arapahoe County District Court Case No. 05CR3213. Respondents filed an Answer (Doc. 21), and Mr. Everett filed a Reply (Doc. 22). After reviewing the record, including the Application, Answer, Reply, and the state court record, the Court finds and concludes that the Application should be denied and the case dismissed with prejudice.

BACKGROUND

In 2006, Mr. Everett was convicted by a jury in Arapahoe County District Court Case No. 05CR3213 of two counts of sexual assault. (Doc. 11-5 at 3.) He was designated a sexually violent predator ("SVP") and sentenced to an indeterminate term of ten years to life in thecustody of the Colorado Department of Corrections ("CDOC"). (Doc. 1 at 2-3.)

On November 9, 2006, Mr. Everett filed a notice of appeal in the Colorado Court of Appeals. (Doc. 11-1 at 5.) While the direct appeal was pending, Mr. Everett initiated, on May 10, 2011, a federal habeas corpus action asserting a due process claim challenging a delay in his direct appeal. (Id. at 3.) On August 31, 2011, the federal court denied habeas corpus relief, finding that Mr. Everett had not shown that his constitutional rights had been violated. (Id. at 16.) On November 10, 2011, the Colorado Court of Appeals affirmed Mr. Everett's judgment and sentence for sexual assault on a physically helpless victim, vacated the judgment and sentence for sexual assault on a victim incapable of appraising the nature of her conduct, vacated the SVP designation, and remanded the case with instructions to the district court to make further findings on whether Mr. Everett was an SVP. (Doc. 11-5 at 3.) The Colorado Supreme Court denied certiorari review on October 29, 2012. (Doc. 11-6.)

Before certiorari was denied on direct appeal, Mr. Everett filed, in October 2012, his first motion for postconviction relief pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure. (Doc. 11-2 at 13.) On August 21, 2013, the state district court denied the Rule 35(b) motion and re-designated Mr. Everett as an SVP. (Id. at 11.) Mr. Everett appealed, and while that appeal was pending, he filed, on June 18, 2014, a second postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (Id. at 9.) On September 10, 2014, Mr. Everett had his Rule 35(b) appeal dismissed so that the state district court would have jurisdiction to consider his Rule 35(c) motion. (Id. at 10.) The district court then denied the Rule 35(c) motion, and the Court of Appeals affirmed. (Doc. 11-9.) On September 30, 2019, the ColoradoSupreme Court denied Mr. Everett's petition for a writ of certiorari. (Doc. 11-10.)

Mr. Everett initiated this action on December 16, 2019. Magistrate Judge Gordon P. Gallagher directed Respondents to file a Pre-Answer Response addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). Upon review of the Pre-Answer Response (Doc. 11), this Court entered an Order of Dismissal in Part, For Answer, and For State Court Record. (Doc. 15.) In that Order, the Court determined that claims 1(a), 1(c), 7, 12, 13(b)-(g), 13(i)-(j), and 17 were procedurally barred; that Claim 11 was duplicative of Claim 10; that Claim 15 failed to present a federal question; and that Claim 16 was part of Claim 14.

Mr. Everett's remaining twelve claims, renumbered, are as follows:

(1) The district court erred in admitting the victim's rape kit because the kit's evidence property report and envelope had hearsay writings that violated the Confrontation Clause;

(2) The two counts of sexual assault must merge because they were based on one sexual act;

(3) The district court erred in denying Mr. Everett's challenge for cause of potential juror D.G. because she said the charges against Mr. Everett were "some evidence";

(4) The district court violated Mr. Everett's right to a public trial by closing a preliminary hearing to the public during the victim's testimony;

(5) The evidence was insufficient to support the conviction for sexual assault of a physically helpless victim;

(6) A new trial was required because there was no transcript of the hearing held on Mr. Everett's request forsubstitute counsel, and the district court erred by denying his request for substitute counsel;

(7) The district court erred by overruling defense counsel's objections to statements in the prosecutor's rebuttal closing argument;

(8) The Colorado Sex Offender Lifetime Supervision Act of 1998 is unconstitutional;

(9) The district court erred by denying Mr. Everett's motion for an abbreviated proportionality review of his sentence;

(10) Trial counsel gave ineffective assistance by failing to investigate the charges and evidence against Mr. Everett;

(11) Trial counsel gave ineffective assistance by failing to challenge improper jury instructions; and

(12) The district court erred by denying Mr. Everett's motion alleging ineffective assistance of trial and appellate counsel.

(Doc. 1 at 5-11.)

LEGAL STANDARDS

The Court must construe the Application and other papers filed by Mr. Everett liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however, is not and cannot be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

A. Threshold Review Under 28 U.S.C. § 2254

Pursuant to 28 U.S.C. § 2254(d), 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.

Mr. Everett bears the burden of proof under this statute. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

The Court's review under Section 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Id. at 181 (addressing Section 2254(d)(1)); 28 U.S.C. § 2254(d)(2) (limiting review to "the evidence presented in the State court proceeding"). When conducting its review, the Court must first look to see whether "the last state court to decide [the] prisoner's federal claim explain[ed] its decision on the merits in a reasoned opinion." Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). If so, the Court "simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable." Id. When the last state court decision on the merits "does not come accompanied with those reasons," the Court "should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale [and] presume that the unexplained decision adopted the same reasoning." Id. That presumption may be rebutted "by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision, suchas alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed." Id.

The first question the Court must answer under Section 2254(d)(1) is whether Mr. Everett seeks to apply a rule of law that was clearly established by the Supreme Court at the time the state court adjudicated his claim on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011). 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 v. Taylor, 529 U.S. 362, 412 (2000). 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 Section 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 (a) contrary to or (b) 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 theSupreme Court and nevertheless arrives at a result different from [that] precedent."

House, 527 F.3d at 1018 (quoting Maynard v. Boone, 468 F.3d 665, 669 (10th Cir. 2006) (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.

"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." House, 527 F.3d at...