Palmer v. Hartley, Civil Action No. 08-cv-00860-PAB

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtPHILIP A. BRIMMER
PartiesMARCUS PALMER, Applicant, v. STEVE HARTLEY, Warden, Limon Corr. Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
Decision Date30 December 2010
Docket NumberCivil Action No. 08-cv-00860-PAB

MARCUS PALMER, Applicant,
v.
STEVE HARTLEY, Warden, Limon Corr.
Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

Civil Action No. 08-cv-00860-PAB

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Dated: December 30, 2010.


Judge Philip A. Brimmer

ORDER ON PETITION FOR HABEAS CORPUS

This matter comes before the Court on Mr. Palmer's Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 4], 1 which Respondents answered [Docket No. 18] addressing the merits. Mr. Palmer filed a Reply [Docket No. 24]. Having considered the same, along with the pertinent portions of the State Court record [Docket No. 32], the Court concludes that an evidentiary hearing is not necessary and the Amended Application should be denied.

I. Background

Mr. Palmer was convicted by a jury of second degree murder, felony murder, first degree burglary, and felony menacing and was sentenced to life in prison. The judgment of conviction was affirmed on direct appeal. See People v. Palmer, 87 P.3d

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137 (Colo. App. 2003). On April 12, 2004, the Colorado Supreme Court denied Mr. Palmer's petition for writ of certiorari on direct appeal.

On March 29, 2005, Mr. Palmer filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. The trial court denied the Rule 35(c) motion on September 29, 2005. Mr. Palmer filed a notice of appeal and the Colorado Court of Appeals ("CCA") affirmed the denial of the Rule 35(c) motion. See People v. Palmer, No. 05CA2534 (Colo. App. Aug. 2, 2007) (unpublished). On February 25, 2008, the Colorado Supreme Court denied Mr. Palmer's petition for writ of certiorari in the postconviction proceedings. The Court received the instant action for filing on April 17, 2008.

Previously, on May 22, 2008, Magistrate Judge Boyd N. Boland ordered Respondents to file a Pre-Answer Response that addresses 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) if Respondents intended to raise either or both of those defenses. On June 11, 2008, Respondents filed their Pre-Answer Response, and on August 4, 2008, Mr. Palmer filed a Reply to the Pre-Answer Response. Senior Judge Zita L. Weinshienk determined, upon completion of the Court's review of the timeliness and exhaustion issues pursuant to D.C.COLO.LCivR 8.2C, that Respondents conceded the Application is timely under 28 U.S.C. § 2244(d) and that Claims One, Two, Three, Five, Eight, and Ten, and Subclaims (a), (c), (e), and (g) under Claim Eleven are exhausted. [See Draw/Dismiss Order [Docket No. 13].] Judge Weinshienk also found that Claims Four, Six, Seven, Nine, Twelve, and Subclaims (b), (d), (f), (h), (i), (j), and (k) of Claim Eleven are procedurally barred. [Id.] Judge Weinshienk further noted that

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Claim Thirteen merely recites the legal standards for ineffective assistance of counsel claims and is not a separate claim.

Mr. Palmer did not take issue with how his claims were characterized by Respondents in their Pre-Answer Response. [See Docket No. 13 at 2-3.]2 Therefore, the Court will adopt the same characterization of Mr. Palmer's remaining claims, which are as follows:

(1) Information entered in Mr. Palmer's case did not provide notice of the elements of felony murder.

(2) Trial court violated Mr. Palmer's right to a unanimous verdict and proof beyond a reasonable doubt when it failed to specify a particular victim with respect to all of the elements of the offenses of burglary and felony menacing in the jury instructions.

(3) Trial court violated Mr. Palmer's right to due process when it failed to adequately instruct the jury on the "no duty to retreat" doctrine as it applies to self-defense.

(5) Trial court violated Mr. Palmer's constitutional rights when it refused to instruct the jury to consider whether Mr. Palmer acted in self-defense when determining if he acted recklessly and negligently.

(8) Trial attorney violated Mr. Palmer's right to testify when he used erroneous information to convince Mr. Palmer not to testify.

(10) Trial attorney violated Mr. Palmer's Sixth Amendment right to counsel because he had a conflict of interest.

(11) Trial attorney rendered ineffective assistance by:

(a) failing to investigate the extent of information possessed by two defense witnesses;

(c) failing to notify Mr. Palmer about the conflict of interest;

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(e) providing Mr. Palmer with false information about his right to testify in order to prevent him from testifying; and

(g) failing to file a bill of particulars regarding burglary.

II. Legal Standard

Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus shall not be granted 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.

A. Section 2254(d)(1)--Unreasonable Application of Clearly Established Federal Law

The threshold question pursuant to § 2254(d)(1) is whether the trial court applied unreasonably federal 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. As the Tenth Circuit Court of Appeals has explained:

C]learly 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

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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. Pursuant to House,

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 the Supreme Court and nevertheless arrives at a result different from [that] precedent." Maynard [v. Boone], 468 F.3d [665,] 669 [(10th Cir. 2006)] (internal quotation marks and brackets omitted) (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 (citation omitted).

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. Id. at 407-08 [ ]. Additionally, we have recognized that an unreasonable application may occur if the state court either unreasonably extends, or unreasonably refuses to extend, a legal principle from Supreme Court precedent to a new context where it should apply.

House, 527 F.3d at 1018 (internal citations and quotation marks omitted).

The Court's inquiry pursuant to the "unreasonable application" clause is an objective inquiry. See Williams, 529 U.S. at 409-10. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. "[A] decision is 'objectively unreasonable' when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law."

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Maynard, 468 F.3d at 671. "[O]nly the most serious misapplications of Supreme Court precedent will be a basis for relief under § 2254." Id.

B. Section 2254(d)(2)--Unreasonable Determination of the Facts Claims of factual error are reviewed pursuant to 28 U.S.C. § 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10th Cir. 2002). Section 2254(d)(2) allows the Court to grant a writ of habeas corpus only if the state court decision was based on an unreasonable determination of the facts in light of the evidence...

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