Rosales v. Milyard

• Decision Date: 29 March 2013
• Docket Number: Civil Action No. 10-cv-03101-CMA
• Parties: DANIEL L. ROSALES, Applicant, v. KEVIN MILYARD, and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents.
• Court: U.S. District Court — District of Colorado

DANIEL L. ROSALES, Applicant,

v.KEVIN MILYARD, and JOHN SUTHERS,The Attorney General of the State of Colorado, Respondents.

Civil Action No. 10-cv-03101-CMA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

DATED: March 29, 2013

District Judge Christine M. Arguello

ORDER DENYING PETITION FOR HABEAS CORPUS

The matter before the Court is an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. (Doc. ## 9 and 10. The Court has determined it can resolve the Application without a hearing. See 28 U.S.C. § 2254(e)(2); Fed. R. Governing Section 2254 Cases 8(a).

I. BACKGROUND

On November 21, 2002, in Jefferson County District Court Case No. 01CR3022, a jury found Applicant guilty of two counts of murder after deliberation, two counts of felony murder, one count of first degree burglary, one count of second degree assault, and one count of violating a restraining order.¹ See Answer (Doc. # 30, at 1-2); Application at 2; State Court Flat File at 151-160 and 163.

On November 26, 2002, the trial court sentenced applicant to two concurrent life sentences for murder, a concurrent prison term of thirty-two years for burglary, a consecutive term of sixteen years for the assault, and a concurrent term of eighteen months for violating the restraining order. State Ct. Flat File at 163. On direct appeal, the CCA affirmed and ordered the mittimus to include the order of restitution, Rosales, 134 P.2d at 436, and the Colorado Supreme Court (CSC) denied a petition for certiorari review, Rosales v. People, No. 05SC684 (Colo. May 22, 2006).

Applicant filed a Colo. R. Crim. P. 35(c) postconviction motion on May 7, 2007, see State Ct. Flat File at 293, that the trial court denied on August 10, 2007, see id. at 351-59. The CCA affirmed the denial, see People v. Rosales, No. 07CA1881 (Colo. App. Mar. 26, 2009), and the CSC denied certiorari review, Rosales v. People, No. 2009SC409 (Colo. Sept. 7, 2010) (en banc).

II. HABEAS CLAIMS

Applicant, acting pro se, initiated this action on December 21, 2010. The original Application and first Amended Application were insufficiently pled. After two attempts by Applicant to amend and submit an application that complies with Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, on March 17, 2011, Applicant filed a Second Amended Application and a separate Petition, that includes a statement of facts in support of each claim that he raises.

In the March 17 Petition, Applicant asserted the following claims:

(1) Trial court error in allowing the jury instruction on self-induced intoxication;

(2) Prosecutorial misconduct in closing argument;(3), (4), and (5) Trial court error in imposing restitution after Mr. Rosales had filed his notice of appeal violating double jeopardy laws and his right to due process;

(6) Ineffective assistance of trial counsel for failing to: (i) investigate Mr. Rosales's intoxication the night of the murders; (ii) interview Mr. Rosales's girlfriend regarding his assault on her and to interview jail intake personnel regarding Mr. Rosales's intoxication level; (iii) present a provoked heat of passion defense; (iv) obtain independent blood analysis; (v) advise Mr. Rosales before he waived his right to testify that only one witness would testify for the defense; and (vi) object to the intoxication instruction, the prosecution's comments during voir dire and closing argument, and the prior act evidence, which was inadmissible under Colo. R. Evid. 404(b);

(7) Trial court error in not holding an evidentiary hearing during the postconviction proceeding;

(8) The postconviction court's violation of state civil and criminal rules in denying Mr. Rosales's request to amend the Rule 35(c) motion and for an evidentiary hearing; and

(9) Ineffective assistance of postconviction counsel.

On March 22, 2011, Magistrate Judge Boyd N. Boland entered an order directing Respondents to file a Pre-Answer Response and address 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. Respondents filed a Pre-Answer Response on April 6, 2011, conceding that the Application is timely and that Claims One, Two, Three, Four, Five, parts of Six, and Seven were exhausted, but arguing that parts of Claim Six and all of Claims Eight and Nine were procedurally barred from habeas review. Applicant filed a Reply on May 3, 2011.

The Court reviewed the Application, Petition, Pre-Answer Response, and Reply and determined that Claims Eight and Nine failed to state cognizable federal habeasclaims. As for Claim Six, the Court found that three of Applicant's ineffective assistance of counsel claims were procedurally barred from federal habeas review, including:

(1) counsel's failure to interview Applicant's girlfriend regarding the assault;

(2) counsel's failure to object to the prosecution's comments during voir dire; and

(3) counsel's failure to object to the prior act evidence that was ruled inadmissible.

III. LEGAL STANDARDS

A. PRO SE STANDARD OF REVIEW

Applicant is proceeding pro se. The Court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). An applicant's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 958 (10th Cir. 2002).

B. 28 U.S.C. § 2254

Section 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 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 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). The "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the prisoner's claim on the merits." Cullen v. Pinholster, ---- U.S. ----, 131 S. Ct. 1388, 1398 (2011). "Finality occurs when direct state appeals have been exhausted and a petition for writ of certiorari from this Court has become time barred or has been disposed of." Greene v. Fisher, ---- U. S. ----, 132 S. Ct. 38, 44 (2011) (citing Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1987)).

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." Williams, 529 U.S. 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 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. Carter [v. Ward], 347 F3d. [860,] 864 [(10th Cir. 2003)] (quoting Valdez [v. Ward], 219 F.3d [1222,] 1229-30 [(10th Cir. 2000)]).

House, 527 F.3d at 1018.

The Court's inquiry pursuant to the "unreasonable application" clause is an objective one. See Williams, 529 U.S. at 409-10. "[A]...