I. BACKGROUND AND APPLICATION On January 10, 2005, Mr. Ponis was convicted by a Jefferson County District Court jury of one count of sexual assault on a child by a person in a position of trust - pattern in Case No. 04CR1488. [ECF No. 15, at 2; see also ECF No. 26-1, at 5].1 OnMarch 8, 2005, he was sentenced to an indeterminate prison term of eleven years to life. [Id.].
The Colorado Court of Appeals affirmed Mr. Ponis' conviction on direct appeal in People v. Ponis, No. 05CA0810 (Colo. App. Nov. 8, 2007) (unpublished decision). [ECF No. 26-3]. The Colorado Supreme Court denied Applicant's request for certiorari review on September 2, 2008. [ECF No. 26-4].
Mr. Ponis filed a motion for sentence reconsideration pursuant to Colorado Rule of Criminal Procedure 35(b) on January 26, 2009. [ECF No. 26-1, at 9-10]. The trial court denied the motion on February 2, 2009. [Id. at 9]. Applicant did not file an appeal. [Id.].
Mr. Ponis filed a motion for post-conviction relief pursuant to Colo. Crim. P. Rule 35(c) on October 30, 2009. [Id. at 9]. The state trial court denied the motion on December 22, 2009. [Id.]. The Colorado Court of Appeals affirmed the trial court's order in People v. Ponis, No. 10CA0284 (Colo. App. May 26, 2011) (unpublished decision). [ECF No. 26-6]. The Colorado Supreme Court denied Applicant's request for certiorari review on January 9, 2012. [ECF No. 26, at 2 n.2 of 22].
Mr. Ponis initiated this action on January 19, 2012. He asserts three claims in the Amended Application, all of which include several sub-claims.
First, Applicant claims that his trial counsel was ineffective in failing to:
(a) investigate information provided to the defense by teachers, students, and coaches that Applicant reasonably believed the victim was eighteen years old;
(b) request a special prosecutor due to an alleged conflict of interest with the District Attorney's office who was a family member of Applicant's ex-wife;(c) research and understand the law concerning other acts evidence and object to the admission of evidence that Applicant had a sexual relationship with two eighteen-year-old women;
(d) object to improper jury instructions that failed to require the jury to find that the victim was both a child and under eighteen years old;
(e) raise issues on direct appeal that would have been successful but were barred by a state procedural rule in Applicant's postconviction proceeding;
(f) contest a government motion for the introduction of evidence;
(g) object to unfair testimony at trial;
(h) object to the prosecutor's questions and closing argument regarding Applicant's extra-marital affairs;
(i) call available witnesses;
(j) conduct any legal investigation; and,
(k) understand the law on key legal issues, including but not limited to, the law regarding similar acts evidence and immaterial, irrelevant evidence.
[ECF No. 15, at 13-17].
In claim two, Mr. Ponis asserts that he was denied his due process right to a fair trial by:
(a) the admission of testimony from two women with whom Applicant had a sexual relationship when they were eighteen years old;
(b) the prosecutor's emphasis of Applicant's prior sexual relationships in closing argument;
(c) improper jury instructions that failed to require the jury to find that the victim was a child;
(d) a conflict of interest that resulted in a vindictive prosecution; and,
(e) the prosecutor's questions and arguments regarding Applicant's infidelity to his wife.
[Id. at 13-14].
For his third claim, Mr. Ponis challenges:
Respondents have conceded that the Application is timely pursuant to the AEDPA one-year limitation period, 28 U.S.C. § 2244(d)(1). [ECF No. 26, at 7]. Respondents have further conceded that Mr. Ponis exhausted state remedies for claims 1(a) and 1(c) [Id. at 9-12]. Respondents argued in the pre-answer response that Applicant's remaining claims are procedurally defaulted. [Id. at 9-19]. The Court concluded in an August 7, 2012 Order that Applicant properly exhausted state court remedies for claims 1(a) - 1(d) and 3(a). [ECF No. 36]. The Court dismissed the remainder of Applicant's claims as procedurally barred on August 7, 2012. [Id.]. Accordingly, the Court reviews the merits of claims 1(a) - 1(d) and 3(a) below.2
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 pursuant to § 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 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 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 rulefrom 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.
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." Maynard, 468 F.3d at 671. In addition,
evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations. [I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.
Richter, 131 S.Ct. at 786 (internal quotation marks omitted). In conducting this analysis, the Court ...
