Purdy v. Brill
| Decision Date | 04 March 2011 |
| Docket Number | Civil Action No. 09-cv-00944-WYD |
| Parties | RICKEY PURDY, Applicant, v. HOYT BRILL, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. |
| Court | U.S. District Court — District of Colorado |
Applicant, Rickey Purdy, is a prisoner currently on probation under the supervision of the Colorado Department of Corrections (DOC). He has filed a pro se Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging his Colorado state conviction in Arapahoe County District Court Case No. 05CR0234. The Amended Application has been fully briefed by the parties.
I must construe the Amended Application and other papers filed by Mr. Purdy liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21(1972); Hall v. Bellman, 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. For the reasons stated below, the Amended Application will be denied, and the action will be dismissed.
Mr. Purdy was charged in Arapahoe County District Court with one count of sexual assault on a child, one count of first degree criminal trespass of an automobile and one count of a violent crime. (Amended Application attachment at 19). The evidence at Mr. Purdy's trial was summarized accurately by the Colorado Court of Appeals:
In 2004, defendant and the ten-year-old victim attended a relative's birthday party. Defendant chased the victim and other children at the party and made obscene sexual gestures at her. The victim told her mother about the gestures, and the mother instructed her to get into their car because it was time to leave the party. The victim and a few other children entered the car and locked the doors. Defendant entered the car by reaching in through a broken window and undoing the lock. He then pulled at the victim's clothing and touched her breasts and vaginal area through her clothes while she struggled and screamed for him to stop. She managed to leave the car, and reported to her mother what had happened.
People v. Purdy, No. 06CA0724 (Colo. App. June 12, 2008) (unpublished opinion) .
Following his jury trial in December 2005, Mr. Purdy was convicted of sexual assault on a child under the age of fifteen and first degree criminal trespass of an automobile. He was then sentenced to an indeterminate term of four years to life and a lesser concurrent term for the trespass count.
Mr. Purdy filed a direct appeal challenging his convictions and sentences on numerous grounds. The Colorado Court of Appeals affirmed the convictions and sentences. See People v. Purdy, No. 06CA0724 (Colo. App. June 12, 2008)(unpublished opinion). The Colorado Supreme Court denied Mr. Purdy's petition for certiorari review on October 6, 2008. .
On February 9, 2009, Mr. Purdy filed a motion for post-conviction relief pursuant to Colo. Crim. P. Rule 35(b) and for modification of a mandatory sentence for a violent crime pursuant to Colo. Rev. Stat. § 18-1.3-406. (Pre-Answer Resp. Ex. A at 15).
While his Rule 35(b) motion remained pending, Mr. Purdy filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in this Court on April 24, 2009. He filed an Amended § 2254 Application on August 10, 2009. In the Amended Application, Mr. Purdy asserts three claims:
(1) The prosecutor violated his right to a fair trial by expressing a personal opinion on the credibility of a witness, thereby misleading the jury.
(2) The prosecutor violated his right to a fair trial by making improper comments that warranted a mistrial.
(3) The Colorado Sex Offender Lifetime Supervision Act of 1998 ("CSOLSA") violates his right to due process, the Supremacy Clause and constitutes cruel and unusual punishment.
On August 14, 2009, Magistrate Judge Boyd N. Boland ordered Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. §2244(d) and/or exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). After receiving an extension of time, Respondents filed their Pre-Answer Response on September 22, 2009, conceding that the Amended Application was timely, but arguing that the action should be dismissed as unexhausted due to Mr. Purdy's Rule 35(b) motion that was pending in state court at that time. Mr. Purdy filed a Reply to the Pre-Answer Response on October 7, 2009.
On October 22, 2009, Senior District Judge Zita L. Weinshienk issued an Order to Draw the Case to a District Judge and to a Magistrate Judge. Judge Weinshienk found that the claims asserted in the Amended Application were timely under 28 U.S.C. § 2244(d). However, she disagreed with Respondents' argument that the action should be dismissed for failure to exhaust state court remedies based on the fact that Mr. Purdy was pursuing other claims in the Rule 35(b) proceeding that was pending in state court. Senior Judge Weinshienk noted that "[a]lhough it may be appropriate to delay consideration of Mr. Purdy's properly exhausted claims while the state court postconviction proceedings are pending, the power to delay does not include 'the discretion to dismiss an action properly before the court and within its statutory jurisdiction.'" (Order to Draw Case at 4 (citing Nowaczyk v. Warden, 299 F.3d 69, 76-77 (1st Cir. 2002)).
On October 23, 2009, I entered an Order directing Respondents to file an Answer to the Amended Application. After receiving an extension of time, Respondents filed an Answer on December 14, 2009. Mr. Purdy did not file a Reply. On July 22, 2010, and August 23, 2010, the state court records and transcripts were filed in this action. On October 20, 2010, I entered an Order directing Respondents to file a Supplement to the Answer, and provide additional information regarding the outcome of Mr. Purdy's Rule 35(b) motion, filed on February 9, 2009. On November 3, 2010, Respondents filed a Supplement to the Answer, stating that on March 1, 2010, the trial court held a hearing on the Rule 35(b) motion, and re-sentenced Mr. Purdy to ten years to life of sex offender intensive supervision probation. .
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).
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 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 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 isimplicated, 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 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.
My inquiry pursuant to the "unreasonable application" clause is an objective one. See Williams, 529 U.S. at 409-10. Id. at 411. "[A] decision is 'objectively unreasonable' when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme...
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