WILLIAM J. MARTINEZ, District Judge
This matter is before the Court on Applicant Wayne A. Small's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Application") (Doc. No. 3) and his Addendum to Applicant's 28 U.S.C. 2254 Petition for Writ of Habeas Corpus ("Addendum") (Doc. No. 24).1 Respondents filed an Answer on March 29, 2011. (Doc. No. 15.) Applicant filed a Reply on April 27, 2011. (Doc. No. 18). After reviewing the pertinent portions of the record in this case including the Application, the Answer, the Reply, and the state court record, the Court concludes that the Application should be denied.
Following a jury trial in consolidated Case Nos. 04CR2046 and 04CR2041, Applicant was convicted of second degree burglary and attempted second degree burglary and possession of burglary tools in the Denver District Court and was sentenced as a habitual criminal to twenty-four years of incarceration. The following factual summary is taken from the statement of facts in the Colorado Court of Appeals' (CCA's) opinion on direct appeal.
On February 19, 2004, an officer from the Denver Police Department was dispatched to a burglary alarm at a liquor store. Upon arriving, the officer determined someone had broken into the store through a hole in the eaves of the roof.
The officer reviewed a video security tape. It showed a man dropping through the ceiling into the store, stealing loose change and two large bottles of liquor, and then leaving through the ceiling. The store owner reviewed the tape, and later identified defendant in a photographic lineup as the man in the video.
On May 3, 2004, a Denver police officer was driving on Colfax Avenue when he saw a man, later identified as defendant, using a crowbar to pry open the door of another liquor store. The officer used a microphone to order defendant to stop and show his hands. Defendant walked away from the store and got in a car. He drove away, but struck a parked car. Defendant ran off, and was almost immediately apprehended by another officer.
Defendant was convicted as charged. The trial court subsequently imposed prison sentences under the habitual offender statute.
State of Colo. v. Small, Nos. 05CA1045 & 05CA1046 1-2 (Colo. App. Mar. 13, 2008) (unpublished).
Applicant's conviction and sentence were affirmed by the CCA on March 13, 2008. See Small, Nos. 05CA1045 and 05CA1046. The Colorado Supreme Courtdenied certiorari review on June 16, 2008. See State of Colo. v. Small, No. 08SC309 (Colo. June 16, 2008) (unpublished).
Subsequently, Applicant filed a Colo. R. Crim. P. 35(c) postconviction motion that was denied by the trial court. Applicant appealed the denial. The CCA dismissed the appeal in part and affirmed the trial court's denial in part. See State of Colo. v. Small, No. 08CA2379 (Colo. App. Oct. 29, 2009) (unpublished). The Colorado Supreme Court denied certiorari review on March 8, 2010. State of Colo. v. Small, No. 2009SC1040 (Colo. Mar. 8, 2010) (unpublished).
II. FEDERAL COURT PROCEEDINGS Applicant asserts three claims in the Application and four additional claims in the Addendum. The Court conducted a preliminary review of the seven claims and dismissed two of them. One of the claims was dismissed for lack of merit and the other because it is procedurally barred. The Court found the remaining five claims are timely and properly exhausted. These claims are as follows:
1) Ineffective Assistance of Counsel, including failure to:
a) File motions to suppress evidence, statements, and identification procedure,
b) Litigate a motion that was filed challenging the prior convictions,
c) Pursue a court rule violation committed by the prosecution,
d) Consult with Applicant on important issues,
e) Prepare an adequate defense,
f) Present exculpatory information,g) Explain the Curtis Advisement, and
h) Consult with Applicant on his right to testify;
(2) Trial court error in denying the Baston objection to the prosecution's peremptory challenge;
(3) Trial court error in granting the prosecution's motion to consolidate Applicant's criminal cases;
(4) Prosecutorial Misconduct in closing argument; and
(5) Sixth and Fourteenth Amendment violations because Applicant was deprived of his right to a jury trial on the habitual criminal charges.
Accordingly, the Court will consider the merits of the remaining claims below.
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). Clearlyestablished 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 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 principlefrom 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. 19, 2011) (internal quotation marks and citation omitted). The Court "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 habeascorpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. (Internal quotations 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
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