Hoeck v. Timme

• Decision Date: 21 April 2014
• Docket Number: Civil Action No. 13-cv-02575-WJM
• Parties: DAVID B. HOECK, Applicant, v. RAE TIMME, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

DAVID B. HOECK, Applicant, v. RAE TIMME, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

Civil Action No. 13-cv-02575-WJM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: April 21, 2014

Judge William J. Martínez

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

Applicant, David B. Hoeck, has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his criminal conviction in the District Court of Mesa County, Colorado. Respondents have filed an Answer (ECF No. 19), and Applicant has filed a Reply (ECF No. 21). Having considered the same, along with the state court record, the Court will deny the Application.

I. BACKGROUND

On July 18, 2008, Mr. Hoeck was convicted by a jury of possession of a scheduled II controlled substance (cocaine) with intent to distribute in Mesa County District Court Case No. 07CR1572. (ECF No. 12-1, at 8). He was sentenced the same day to an eighteen-year prison term with the Colorado Department of Corrections. (Id. at 7-8).

The Colorado Court of Appeals affirmed Mr. Hoeck's conviction on direct appeal in People v. Hoeck (Hoeck I), No. 08CA1829 (Colo. App. Dec. 10, 2009) (unpublisheddecision). (ECF No. 12-4). The state appellate court summarized the relevant facts as follows:

Officers were dispatched to [Applicant's] house based on a report from neighbors of a verbal disturbance. As the officers approached the house, they heard two men arguing inside. Once inside the fence surrounding the house, the officers could hear without any listening device that the conversation involved narcotics. One of the officers, Officer R., recorded approximately ten minutes of the conversation with a portable tape recorder. In the recording, [Applicant] made the following statements:

• "I sell for a hundred a gram and . . . eight balls for a buck 50."

• "If they come here and that's my customer, they're mine."

• "I will never sell to your customers."

• "[Selling drugs to customers is] what pays for my bills."

The officers then took the recording to the street crimes unit. After reviewing the recording, an officer with that unit obtained a no-knock search warrant for [Applicant's] house. The next morning, officers executed the warrant. [Applicant] and his roommate were at home and were subsequently arrested.

The officers seized numerous items of drug paraphernalia throughout the house and in the trash can outside. Although many of the items seized contained only residue amounts of a substance which tested positive for cocaine, a bag was found in the trash can outside [Applicant's] house containing .03 grams of cocaine and a measuring cup containing .02 grams of cocaine was found near the bed in [Applicant's] roommate's bedroom.

(ECF No. 12, at 2-3). The Colorado Supreme Court denied Applicant's request for certiorari review on April 5, 2010. (ECF No. 12-6).

Mr. Hoeck filed a motion for sentence reconsideration on August 18, 2010, which the trial court denied on August 24, 2010. (ECF No. 12-1, at 6). Applicant did not file an appeal.

Mr. Hoeck filed a motion for post-conviction relief pursuant to Colo. R. Civ. P. 35(c) on April 6, 2011, which was denied by the trial court. (Id. at 6). The Colorado Court of Appeals affirmed the trial court's order in People v. Hoeck (Hoeck II), 11CA1057 (Colo. App. Dec. 13, 2012) (unpublished). (ECF No. 12-9). The Colorado Supreme Court denied certiorari review on August 26, 2013. (ECF No. 12-11).

Mr. Hoeck initiated this action on September 19, 2013. He asserts the following claims in the Application:

(1) the trial court's failure to suppress the taped conversation between Applicant and his roommate violated Applicant's constitutional rights and the [Colorado] wiretapping and eavesdropping act (ECF No. 1, at 2-3);

(2) the evidence was insufficient to support Applicant's conviction (id. at 4);

(3) the trial court abused its discretion by allowing a prosecution witness to opine about what quantity of drugs constitutes a distributable amount (id. at 5);

(4) the trial court abused its discretion by imposing an aggravated range sentence (id. at 6);

(5) the no-knock warrant was not supported by reasonable justification, in violation of the Fourth Amendment (id. at 6);

(6) trial counsel committed numerous errors that cumulatively constituted ineffective assistance of counsel, by failing to: (a) properly investigate and prepare for trial; (b) interview and call critical alibi witnesses; (c) investigate Applicant's competency; (d) explore other viable defenses; (e) keep Applicant apprised of the case; (f) consult with an expert witness concerning Applicant's mental condition; (g) adequately litigate a motion to suppress; (h) have the drugs independently weighed and tested; and, (i) have an expert analyze the recording of Applicant's conversation with his roommate (id. at 7-8);

(7) trial counsel was ineffective by failing to adequately litigate a Fourth Amendment claim (id. at 8-11);

(8) trial counsel was ineffective by failing to investigate Applicant's competency (id. at 11-13);(9) trial counsel was ineffective by failing to consult with expert witnesses concerning Applicant's competency (id. at 13-14);

(10) trial counsel was ineffective by failing to have the drugs independently weighed and tested (id. at 15);

(11) trial counsel was ineffective by failing to have an expert review the recording of Applicant's conversation with his roommate (id.);

(12) trial counsel was ineffective by failing to explore other viable defenses (id. at 15-17);

(13) trial counsel was ineffective by failing to apprise Applicant of the progress of the case (id. at 17-18);

(14) trial counsel was ineffective by failing to interview and present character witnesses at the sentencing hearing (id. at 18);

(15) the trial court's Fourth Amendment findings and conclusions constituted an abuse of discretion (id. at 18-20);

(16) the trial court abused its discretion by failing to have Applicant's competency evaluated (id. at 20);

(17) the trial court abused its sentencing discretion by imposing different sentences on Applicant and the co-defendant (id. at 20-21); and,

(18) counsel was ineffective due to a conflict of interest regarding applicant's religious beliefs (id. at 21).

On October 16, 2013, Magistrate Judge Boyd N. Boland ordered Respondents to file a preliminary response addressing the affirmative defenses of timeliness and exhaustion of state court remedies. In the preliminary response, Respondents conceded that the Application was timely under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). (ECF No. 12, at 4-4). Respondents further conceded that Mr. Hoeck exhausted state remedies for part of claim 1, claims 2, 5, 6, part of claim 7, claim 9, part of claim 10, part of claim 11, and part of claim 12. Respondents argued, however, that Applicant did not exhaust state court remedies for claims 8 and 14because he failed to present those claims to the Colorado Supreme Court in a petition for certiorari review. Respondents also contended that the remainder of Mr. Hoeck's claims were procedurally defaulted and that some of the claims presented issues of state law only that were not remediable under 28 U.S.C. § 2254.

In a previous Order, the Court dismissed the following claims for failure to present federal issues cognizable under § 2254: the allegations in claim 1 challenging the trial court's failure to suppress the taped conversations between Applicant and his roommate as a violation of the Colorado wiretapping and eavesdropping act; claim 3; and, claim 4. The Court also dismissed claims 16 and 17 as procedurally barred. The Court ordered Respondents to file an Answer, within thirty (30) days, to the exhausted claims (part of claim 1, claims 2, 5, 6, part of claim 7, claims 8 and 9, part of claim 10, part of claim 11, part of claim 12 and claims 13, 14 and 15) and to address whether the unexhausted ineffective assistance of counsel allegations in the remainder of claims 7, 10, 11, and 12, and in claim 18, have substantial merit under Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012). The Court addresses Applicant's remaining claims below.

II. LEGAL STANDARDS

A. 28 U.S.C. § 2254

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).

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 the 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...