Linzy v. Faulk

• Decision Date: 21 October 2014
• Docket Number: Civil Action No. 14-cv-00962-BNB
• Parties: ALEX HOMER LINZY, Applicant, v. FRANCIS FAULK, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

ALEX HOMER LINZY, Applicant, v. FRANCIS FAULK, Warden, and THE ATTORNEY GENERAL OF

THE STATE OF COLORADO, Respondents.

Civil Action No. 14-cv-00962-BNB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

October 21, 2014

District Judge Raymond P. Moore

ORDER DENYING § 2254 APPLICATION

Applicant, Alex Homer Linzy, is in the custody of the Colorado Department of Corrections (CDOC) and is incarcerated at the Correctional Facility in Limon, Colorado. He has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging the validity of his convictions and sentence imposed in Denver District Court Case No. 04CR1331. Respondents have filed an Amended Answer (ECF No. 31), and Applicant has filed a Reply (ECF No. 30). Having considered the same, along with the state court record, the Court will deny the Application.

I. BACKGROUND

In February 2006, Applicant was convicted by a jury in Denver District Court Case No. 04CR1331 of second degree kidnapping, sexual assault and third degree assault. (ECF No. 11-1, at 3-6, 18). He was adjudicated a habitual criminal and sentenced to a 96-year prison term for the kidnapping conviction, a consecutive 48-years-to-life term for the sexual assault conviction, and a concurrent two-year term for the assault conviction. (Id. at 16-17).

Applicant's convictions and sentences were affirmed on direct appeal in People v. Linzy (Linzy I), No. 06CA0700 (Colo. App. Aug. 28, 2008) (unpublished). (ECF No. 1, at 59). The Colorado Supreme Court denied certiorari review on January 26, 2009. (ECF No. 11-4).

Applicant filed his first motion for post-conviction relief pursuant to Colo. R. Crim. P. 35(c), on December 30, 2005, before his sentencing. (ECF No. 1, at 76). As explained by the Colorado Court of Appeals:

. . . [D]efense counsel and the court explained to Linzy, and Linzy acknowledged he understood, that Crim. P. 35(c) was not applicable until after sentencing and the trial court therefore could not rule on Linzy's motion until that time.

. . .

On October 1, 2009, after the direct appeal was decided and the mandate issued, Linzy moved the district court for a free copy of the trial transcripts. One month later, he asked to amend his original 35(c) motion and requested conflict-free counsel to pursue the 35(c) motion.

(ECF No. 1, at 76-77).

In April 2010, the state district court denied Applicant's first post-conviction motion on the merits. (ECF No. 1, at 69-71). Applicant's motion for "Rehearing" was denied in July 2010. (Id. at 72-74). The Colorado Court of Appeals affirmed the court's order in People v. Linzy, No. 10CA1050 (Linzy II) (Colo. App. Sept. 22, 2011) (unpublished). (ECF No. 1, at 75-90). The Colorado Supreme Court denied certiorari review on June 25, 2012. (ECF No. 1, at 91).

While the appeal in Linzy II was pending, Applicant filed a second motion for state post-conviction relief on April 21, 2012. (ECF No. 11-1, at 12). The state district court denied the motion for lack of jurisdiction because the mandate had not issued on Applicant's appeal of his first post-conviction motion. (ECF No. 1, at 100). After the mandate issued on August 10, 2012, Applicant resubmitted his second Colo. Crim. P. Rule 35(c) motion, which was denied as untimely and successive on February 4, 2013. (Id. at 96-98). The Colorado Court of Appeals affirmed the district court's order in People v. Linzy (Linzy III), No. 13CA0418 (Colo. App. Feb. 27, 2014) (unpublished). (ECF No. 1, at 99-107). Applicant did not seek certiorari review in the Colorado Supreme Court.

Mr. Linzy filed his first Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in this Court on November 12, 2012 in Case No. 12-cv-03063-BNB. In response to a court order directing why the Application should not be dismissed as a mixed petition, Mr. Linzy requested that the entire action be dismissed without prejudice so that he could exhaust state court remedies for all of his claims. Senior Judge Lewis T. Babcock dismissed the application without prejudice on February 21, 2013. (ECF No. 1, at 92-95).

Mr. Linzy filed his second (but not successive) § 2254 application on April 2, 2014, raising twelve claims:

(1) The trial court's Batson ruling deprived Applicant of his Fourteenth Amendment due process and equal protection rights (ECF No. 1, at 9-10).

(2) The prosecutor's improper remarks during closing argument deprived Applicant of his Fourteenth Amendment due process and equal protection rights. (Id. at 12).

(3) Trial counsel was constitutionally ineffective in failing to: (a) conduct a prompt pretrial investigation; (b) investigate an alibi defense; (c) secure readily available exculpatory phone records; (d) consult a physician regarding the absence of corroborating medical evidence to substantiate the victim's allegations; (e) file a timely motion to suppress test results; (f) challenge the chain of custody of the prosecution's physical evidence; (g) object to the admission of inadmissible evidence at trial and timely request the presence of a laboratory technician to testify at trial; and, (h) in failing to present a proper closing argument. (Id. at 14-27).

(4) Appellate counsel was constitutionally ineffective in failing to communicate with the Applicant. (Id. at 28).

(5) The state appellate courts applied an incorrect standard of review to Applicant's claim of prosecutorial misconduct. (Id. at 30).

(6) The state post-conviction court failed to enter written findings of fact and conclusions of law in denying Applicant's motion for post-conviction relief. (Id. at 30).

(7) Trial and appellate counsel rendered constitutionally ineffective assistance by failing to challenge the sufficiency of the evidence supporting the asportation element of the kidnapping conviction. (Id. at 33).

(8) The trial court denied Applicant a fair trial by allowing the State's forensic expert to testify about DNA test results. (Id. at 35).

(9) Trial counsel rendered constitutionally ineffective assistance by failing to object to the testimony of the prosecution's forensic expert. (Id. at 39).

(10) Appellate counsel rendered constitutionally ineffective assistance by failing to assert the issues raised in habeas claims 8 and 9 on direct appeal, the default of which should be excused under Martinez v. Ryan, 132 S.Ct. 1309 (2012). (Id. at 45).

(11) The state district court's failure to appoint counsel in Applicant's first state collateral review proceeding prevented Applicant from raising all of his ineffective-assistance-of counsel (IAC) claims in his initial motion for post-conviction relief. (Id. at 49).

(12) the state post-conviction court erred in determining, without an evidentiary hearing, that Applicant's second post-conviction motion was time barred and successive. (Id. at 54-55).

In a July 16, 2014 Order, the Court dismissed claims 5, 6 and 12 for failure to present federal issues cognizable under § 2254. (ECF No. 21, at 23). The Court further stated that it did not construe claim 11 as a distinct claim for relief. Claims 8 and 10 were dismissed as procedurally defaulted. (Id.). The Court deferred ruling on the applicability of a procedural bar to claims 3(c) -3(h), 7 (ineffective assistance of trial counsel), and 9, pending the Court's review of the state court record. (Id.). The Court ordered Respondents to file an Answer to claims 1, 2, 3(a), 3(b), 4 and 7 (ineffective assistance of appellate counsel) within thirty days of the July 16 Order. (Id.). The Court further instructed Respondents to include any additional argument concerning the merits of claims 3(c) - 3(h), 7 and 9, under Martinez.

In the July 16 Order, the Court also reserved ruling on the Respondents' assertion that the Application is time-barred. (ECF No. 21, at 10-12). The one-year limitation period in 28 U.S.C. § 2244(d) is not jurisdictional. See Day v. McDonough, 547 U.S. 198, 205 (2006) (stating that a statute of limitations defense is not jurisdictional, but resembles other threshold barriers such as exhaustion of state remedies and procedural default). There is no language in 28 U.S.C. § 2244(d) that would prohibit this Court from bypassing the issue of timeliness if the claims asserted in the § 2254 Application are without merit. After carefully reviewing the state court record, the Court declines to resolve the complex issue of whether the one-year limitation period bars the Application because the Court concludes that the Application is subject to dismissal on the merits. See Pough v. United States, 442 F.3d 959, 965 (6th Cir. 2006) (discussing statute of limitation defense applicable to motions under 28U.S.C. § 2255, and citing Aaron v. United States, 291 F.3d 708, 718 (11th Cir. 2002) (Carnes, J., concurring) ("Sometimes it will be easier for a court to deny relief on the merits than to figure out the issues relating to the statute of limitations. Nothing in the statute prohibits a court from proceeding in that way"); see also Hooks v. Workman, 606 F.3d 715, 722 n. 5 (10th Cir. 2010) (noting, with apparent approval, that the district court denied the IAC claims asserted in the amended § 2254 petition on the merits, without resolving the statute of limitations defense advanced by Respondent).

The Court addresses the merits of 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 (...