Nunn v. Brill
| Decision Date | 04 February 2011 |
| Docket Number | Civil Action No. 09-cv-00068-WYD-MEH |
| Parties | RAYFEAL RAYMOND NUNN, Applicant, v. HOYT BRILL (Warden of CCA), and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. |
| Court | U.S. District Court — District of Colorado |
ORDER OF DISMISSAL
Applicant Rayfeal R. Nunn, currently in the custody of the Colorado Department of Corrections and incarcerated at the Kit Carson Correctional Center in Burlington, Colorado, initiated this case on February 24, 2009, with the filing of his pro se amended application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the Amended Application, Mr. Nunn challenges the validity of his convictions in Denver district court cases 01CR4599 and 02CR1419.
Mr. Nunn initially asserted the following six separate claims for relief, which are as follows:
1. The prosecutor's act of calling a witness was misconduct where the witness repeatedly invoked Fifth Amendment privilege "not to testify" and the prosecutor knew in advance that the witness would invoke the privilege.
2. There were errors in the grand jury proceedings because (1) an investigator employed by theOffice of the Denver District Attorney was present during the proceedings in violation of Colo. R. Crim. P. 6.5(a) and (b), and (2) prejudicial remarks were made by a grand jury member and the prosecutor. Additionally, Mr. Nunn claims that "c.r.s. 63-40-7-46 and colo. rule of criminal procedure 12(b)" are vague and unconstitutional.
3. The state violated the Interstate Agreement on Detainers Act (IADA) by not conducting his trial within the 180-day time frame.
4. The People failed to establish probable cause and the indictment should have been quashed.
5. The trial court erroneously instructed the jury on the affirmative defense of duress.
6. The imposition of an habitual criminal sentence violated due process under Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000).
During this Court's initial review of this habeas corpus action, it issued two show cause orders on July 2, 2009, and July 22, 2009. These orders explained that Mr. Nunn's first four claims were unexhausted, and in order to avoid dismissal of his application as a mixed petition, he may elect to either (1) dismiss his unexhausted claims and proceed with his two exhausted claims; or, if his wished to pursue all of his claims in federal court, (2) allow the current action to be dismissed without prejudice as a mixed petition so that he may exhaust state remedies as to the unexhausted claims and then file a new application asserting all of his claims. The show cause orders made clear that a decision to dismiss his unexhausted claims and pursue immediately only his exhausted claims likely would bar him from seeking review of the unexhausted claims in a second or successive application. In his response to the second show-cause order, filed on July 28, 2009, Mr. Nunn clearly indicated that he wished to dismiss voluntarilyhis unexhausted claims (claims one, two, three, and four) and proceed with his exhausted claims (claims five and six).
In its Order to Dismiss in Part and to Draw Case, issued August 6, 2009, this Court dismissed as unexhausted claims one, two, three and four, and directed that claims five and six be drawn to a district judge. The case was drawn to me.
On August 12, 2009, I directed Respondents to file an answer to the amended application, and an answer was filed on October 5, 2009. Mr. Nunn submitted a reply to the answer, two supplements to his reply, and an additional Statement of Authorities. In addition, on October 28, 2010, [ECF No. 37], Mr. Nunn filed a Motion for Leave to Amend his amended application with "newly exhausted claims, " and on February 2, 2011, he filed a Motion to Compel [ECF No. 41], and an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [ECF No. 42]. For the reasons set forth herein, those motions and the application pursuant to § 2241 will be denied.
I must construe the amended application and other papers filed by Mr. Nunn liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. After reviewing the entire file and the state court record, I find that an evidentiary hearing is not necessary. For the reasons stated below, Mr. Nunn's remaining claims and the action will be dismissed.
Mr. Nunn was charged with numerous felony counts in two consolidated cases in Denver District Court, case numbers 01CR4599 and 02CR1419. The charges aroseout of his theft and forgery of checks totaling over $130,000 and his use of false identification to cash the checks. At trial, Mr. Nunn admitted that he cashed the forged checks but raised the affirmative defense of duress, asserting that others were threatening to harm him and his family if he did not do so. He was convicted by a jury on forty-seven substantive felony counts, and twelve habitual criminal counts, and sentenced to forty-eight years. (Answer, ex. F:3). The Colorado Court of Appeals affirmed the conviction on April 6, 2006 in People v. Nunn, 148 P.3d 222 (Colo. App. 2006). The Colorado Supreme Court denied Mr. Nunn's petition for certiorari review on November 27, 2006, and the mandate issued on December 12, 2006. (Answer, exs. F; H; I).
On April 14, 2006, Mr. Nunn filed a motion for sentence reconsideration, which the trial court denied on May 5, 2006. Also on April 14, 2006, Mr. Nunn filed his first motion for postconviction relief pursuant to Colo. R. Crim. P. 35(c). On May 5, 2006, the trial court directed Mr. Nunn to file an amended Rule 35(c) motion by July 10, 2006, using the proper form, or the motion would be deemed abandoned. However, the register of state court actions does not indicate that Mr. Nunn filed an amended motion. (Answer, ex A:49-50).
Mr. Nunn then filed a second motion for sentence reconsideration on April 11, 2007, which was denied on April 17, 2007. (Answer, ex A:50). Mr. Nunn did not appeal from this denial. He then filed a third motion for sentence reconsideration on August 2, 2007, which the district court construed as a motion for reduction of sentence pursuant to Rule 35(b), and denied on August 8, 2007. (Answer, ex. A:50). Mr. Nunn did not appeal from the denial.
Mr. Nunn filed a second motion for post-conviction relief pursuant to Rule 35(c) on October 1, 2007. That motion was denied on April 9, 2008. Mr. Nunn then filed a motion to reconsider the denial, which was denied on October 22, 2008. (Answer, ex. A:50-51). Mr. Nunn did not appeal from the denial.
On January 22, 2009, ten days after filing the instant action, Mr. Nunn filed a third motion for post-conviction relief pursuant to Colo. R. Crim. P. 35(b)(3)(VI)(a), asserting the existence of newly discovered evidence. On February 18, 2009, the trial court denied the motion. (Answer, ex. A:52). Mr. Nunn appealed this denial, and his notice of appeal mentioned "newly discovered evidence, " but offered no further details. The Colorado Court of Appeals issued a show cause order on May 29, 2009, directing Mr. Nunn to explain why his appeal should not be dismissed for failure to deliver the record. As of June 11, 2009, Mr. Nunn had not responded. However, because of the possibility that Mr. Nunn's appeal from the denial of his latest postconviction motion may have addressed issues raised in claims 1-4 of the instant Application, the Application was subject to dismissal as a mixed petition containing claims that were both unexhausted and exhausted. As explained above, during this Court's initial review of this habeas corpus action, Mr. Nunn chose to voluntarily dismissed claims one, two, three, and four and proceed with his exhausted claims five and six.
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 anunreasonable 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).
Claims of legal error and mixed questions of law and fact are reviewed pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The threshold question pursuant to § 2254(d)(1) is whether Mr. Nunn seeks to apply a rule of law that was clearly established by the Supreme Court at the time his state court convictions 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 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 my inquiry pursuant to § 2254(d)(1). See id. at 1018. If a clearly established rule of federal law is implicated, I 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 clearlyestablished federal law if: (...
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