Self v. Milyard
Decision Date | 02 February 2012 |
Docket Number | Civil Action No. 11-cv-00502-REB |
Parties | DANIEL G. SELF, Applicant, v. KEVIN MILYARD, Warden, Sterling Correction Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. |
Court | U.S. District Court — District of Colorado |
This matter is before me on the pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Application") [#1]1 filed on March 1, 2011, by Applicant Daniel G. Self. Respondents filed an Answer [#18], and Applicant filed a Traverse [#19].
After reviewing the pertinent portions of the record in this case including the Application, the Answer, the Traverse, and the state court record [#13], I conclude that the Application should be denied.
On March 27, 2003, Applicant called 911 from his home and informed the operator that his pregnant girlfriend, L.G., who was a heroin addict, had shot herself in the head. Applicant claimed that the shooting was an apparent suicide attempt. Paramedics and police responded to the scene. Police officers asked Applicant several questions, entered the home where they observed paramedics assisting L.G., returned to where Applicant was sitting on the porch, and continued to question him. At one point, Applicant contradicted himself and police opted to test his hands for gun shot residue (GSR) but did not advise him of his rights at this time. The police took Applicant to the police station where they continued to question him for thirty to forty-five minutes. At the same time, another police officer applied for a search warrant, entered the home, collected evidence, and diagramed the scene. Subsequently, Applicant was charged with first degree murder.
Mr. Self was convicted by a jury of one count of first degree murder after deliberation in El Paso County District Court Case No. 03CR1450 and was sentenced to life without the possibility of parole. Mr. Self filed a direct appeal. The Colorado Court of Appeals affirmed Mr. Self's conviction and sentence, but vacated the order of restitution and remanded the matter for a hearing. See People v. Self, No. 04CA1542 (Colo. App. Aug. 9, 2007). Mr. Self filed a petition for certiorari review; on October 6, 2008, the Colorado Supreme Court (CSC) denied the petition. Pre-Answer Resp. (#7-10) at App. J. Mr. Self then filed with the United States Supreme Court a petition for certiorari review, which on April 20, 2009, was denied. Id. at App. M. On June 10, 2009, Mr. Self filed a Colo. R. Crim. P. 35(c) postconviction motion.3 The state trial court denied the motion, Mr. Self appealed, and on September 9, 2010, the CCA affirmed the state trial court's denial. Id. at App. R. Mr. Self petitioned the CSC for a writ of certiorari; on January 18, 2011, the petition was denied. Id. at App. T.
On March 1, 2011, Applicant filed this Application. I conducted a preliminary review and dismissed the ineffective assistance of counsel issue raised in Claim One and all of Claim Two as procedurally barred. The remaining claims for relief include:
Because Applicant is not represented by an attorney, I must construe the Application liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v.Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I cannot act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
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:
28 U.S.C. § 2254(d).
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, 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.
Harrington v. Richter, 131 S. Ct. 770, 786, --- U.S. --- (Jan. 19, 2011) (internal quotation marks and citation omitted). I "must determine what arguments or theories supported or . . . could have supported[ ] the state court's decision" and then "ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of Court." Id. "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citation omitted). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, nota substitute for ordinary error correction through appeal." Id. (internal quotation marks and citation omitted).
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