Self v. Milyard

Decision Date02 February 2012
Docket NumberCivil Action No. 11-cv-00502-REB
PartiesDANIEL G. SELF, Applicant, v. KEVIN MILYARD, Warden, Sterling Correction Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
CourtU.S. District Court — District of Colorado

District Judge Robert E. Blackburn

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

Blackburn, J.

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.

I. Background2

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:

Claim One - prosecutorial misconduct;
Claim Three - trial court error in allowing prosecution's comments on the death and delivery of a fetus;
Claim Four - trial court error in admitting out-of-court statements based on excited utterances and other act evidence;
Claim Five - trial court error in admitting statements made in violation of Miranda; and
Claim Six - CCA error in invoking exceptions to the warrant requirement, in violation of the rights to remain silent and effective assistance of counsel.
II. Analysis
A. Standard of Review

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:

(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).

I review 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). Under § 2254(d)(1), the threshold question 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) 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 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.

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

House, 527 F.3d at 1018.

My 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. [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.

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 [the Supreme] 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).

Under this standard, "only the most serious misapplications of Supreme Court precedent will be a basis for relief under § 2254." Maynard, 468 F.3d at 671. Furthermore,

[a]s a condition for obtaining habeas corpus relief from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded
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