Savajian v. Milyard

• Decision Date: 10 December 2012
• Docket Number: Civil Action No. 11-cv-00913-WJM
• Parties: GREGG J. SAVAJIAN, Applicant, v. KEVIN MILYARD, Warden, Sterling Correctional Facility, and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents.
• Court: U.S. District Court — District of Colorado

GREGG J. SAVAJIAN, Applicant,

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

Civil Action No. 11-cv-00913-WJM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: December 10, 2012

District Judge William J. Martínez

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on Applicant Gregg J. Savajian's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Application") (ECF No. 1).¹ Respondents filed an Answer (ECF No. 34) on February 27, 2012. Applicant filed a Reply (ECF No. 35) on March 19, 2012. After reviewing the pertinent portions of the record in this case including the Application, the Answer, the Reply, and the state court record (ECF No. 26), the Court concludes that the Application should be denied.

I. BACKGROUND

The crime occurred in October 2003, when Applicant solicited another inmate in the Jefferson County Detention Facility to kill a deputy sheriff. Applicant's defense at trial was that the other inmate, Mr. Delgado, fabricated the story in an attempt to obtain a favorable plea bargain. On November 17, 2004, in Jefferson County District CourtCase No. 2003CR3131, a jury convicted Applicant of solicitation to commit first degree murder, introduction of contraband, and possession of contraband. The trial court sentenced Applicant on February 8, 2005, to a total of twenty-four years in the Colorado Department of Corrections.

The Colorado Court of Appeals (CCA) affirmed Applicant's conviction and sentence on September 7, 2006. See People v. Savajian, No. O5CA0472 (Colo. App. Sept. 7, 2006). The Colorado Supreme Court (CSC) denied certiorari review on March 12, 2007. See People v. Savajian, No. 06SC767 (Colo. Mar. 12, 2007) (unpublished).

Subsequently, Applicant filed a Colo. R. Crim. P. 35(c) postconviction motion that he later withdrew. On October 4, 2007, he filed a second Rule 35(c) postconviction motion that was denied. The CCA affirmed the denial of the second postconviction motion, and the CSC denied certiorari review.

II. FEDERAL COURT PROCEEDINGS

Applicant asserts three claims in the Application. Claim Three contains twelve subparts. The Court conducted a preliminary review of the three claims and dismissed all but one subpart of Claim Three. The remaining claims are as follows:

1) Six and Fourteenth Amendment violations due to juror misconduct and a discriminatory peremptory challenge to excuse an African-American member of the venire by the prosecution;

(2) Fifth, Sixth, and Fourteenth Amendment violations due to insufficient evidence which includes perjured testimony, mistaken in-court identification, and prosecutor misconduct; and

(3) Right to effective assistance of counsel violation due to counsel's failure to object to sleeping jurors.

In his Reply, Applicant appears to challenge the Court's earlier disposition of the eleven subparts of Claim Three.

Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice. Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.

Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations omitted). For the following reasons, Applicant's construed motion to reconsider the dismissal of the eleven subparts in Claim Three will be denied.

Applicant states in the Reply, as he did in his Application, that his defense attorney failed (1) to investigate the leniency the state witness, Mr. Delgado, received in his own sentence for testifying against Applicant and (2) to produce a credible defense witness or make arrangements for other witnesses at the jail to be brought to trial. Applicant also contends, as he has in several pleadings, see ECF Nos. 13 and 21, that he has proof of newly discovered evidence. This evidence is the same alleged evidence that the Court addressed in the January 30, 2012 Order and found was insufficient to support a finding of actual innocence. See ECF No. 31 at 11.

Finally, Applicant asserts that he filed several motions to dismiss his postconviction attorney prior to and after the evidentiary portion of his Rule 35(c) evidentiary hearing. He claims his requests were denied and as a result he was denied his right to present all of his ineffective assistance of counsel claims to the trial court. The Court has reviewed the transcript of the Rule 35(c) evidentiary hearing. At the hearing, Applicant stated that he would like the public defender's office to represent himand that he desired to retract all the motions he filed seeking dismissal of his postconviction attorney. See Case No. 03CR3131, Oct. 17, 2008 Hr'g Tr. at 5. The court offered Applicant the opportunity to proceed pro se, but he did not accept the offer. See id. at 6. Also, when the court indicated that it would proceed with only the one claim of ineffective assistance of counsel (failure to address the alleged sleeping jurors), Applicant did not object to the court's directive. Id.

The Court, therefore, will deny the request for reconsideration because the issues Applicant raises were addressed by the Court in the January 30, 2012 Order. Applicant does not provide supporting evidence that this Court misapprehended the facts, a party's position, or the controlling law. Accordingly, to the extent the remaining claims are not procedurally defaulted as discussed below, the Court will consider the merits of those claims.

III. LEGAL STANDARDS

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 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). 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 my 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 thecorrect 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.

The Court's inquiry pursuant to the "unreasonable application" clause is an objective one. 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. It 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.

Harrington v. Richter, 131 S. Ct. 770, 786, --- U.S. --- (Jan....