ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS This matter is before the Court on Applicant Marlon L. Smith'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. 37, on April 1, 2015. Applicant filed a Traverse, ECF No. 47, on July 17, 2015. After reviewing the pertinent portions of the record in this case including the Application, the Answer, the Traverse, and the state court record, ECF No. 38, the Court concludes that the Application should be denied and the action dismissed.
Applicant is challenging the validity of his conviction and sentence in State of Colorado Criminal Case No. 02CR3477. The evidence at trial indicated that Applicant barged into a home where his estranged wife was staying; where he shot and killed his wife and wounded two other occupants of the home. See People v. Smith, No.03CA1273, 1 (Colo. App. Feb. 10, 2005) (direct appeal). The procedural background of Applicant's criminal case was summarized in the Colorado Court of Appeals' (CCA's) opinion addressing his Colo. R. Crim. P. 35(c) postconviction motion as follows.
In 2002, defendant was convicted of first degree murder after deliberation, two counts of first degree assault with serious bodily injury, first degree burglary, three counts of felony menacing, and violation of a restraining order. On direct appeal, a division of this court affirmed the judgment of conviction. People v. Smith, (Colo. App. No. 03CA1273, Feb. 10, 2005) (not published pursuant to C.A.R. 35(f) (Smith I). The supreme court denied certiorari on June 21, 2005.
Defendant subsequently filed a Crim. P. 35(c) motion for postconviction relief asserting sixty-one separate claims, which the trial court denied after a hearing. This appeal followed.
Defendant contends the trial court erred in denying his motion because the court's findings of fact and conclusions of law are either incomplete or are not supported by the record. We discern no reversible error.
People v. Smith, No. 10CA0098 (Colo. App. July 5, 2012). The Colorado Supreme Court (CSC) denied Applicant's petition for certiorari review of the Rule 35 motion on October 7, 2013. See Smith v. People, No. 2012SC618 (Colo. Oct. 7, 2013).
II. FEDERAL COURT PROCEEDINGS Applicant asserts twelve claims in the Application. Claim Eleven has three subparts. The Court conducted a preliminary review of the twelve claims and dismissed Claims Two and Four, and Claim Eleven, as it pertains to forensic evaluations. ECF No. 31 at 14. The Court deferred ruling on the Martinez v. Ryan, --- U.S.---, 132 S. Ct. 1309 (2012) issue in Claim Twelve, until the Court had the opportunity to review the state court record. The remaining claims are as follows.
(1) State district court violated due process rights by refusing to suppress an unduly suggestive photo-identification procedure;
(3) State district court violated due process rights by failing to remedy the admission of unfounded, inflammatory hearsay evidence designed to frame the government's theory of the case;
(5) State district court violated due process rights by denying him an opportunity to suppress collateral use by the government of prior unconstitutional convictions;
(6) State district court violated due process rights by failing to conduct a Weidemer analysis regarding the validity of prior convictions, burdening his right to testify;
(7) Evidence is insufficient to sustain a guilty verdict for burglary, felony murder, and violating a restraining order;
(8) Sentence for the offense of attempted felony murder in Count Four should be vacated because there was only one killing;
(9) Ineffective assistance of appellate counsel for failure to amend opening brief when U.S. Supreme Court issued decision in Crawford;
(10) Crawford due process issue;
(11) Ineffective assistance of trial counsel for failure to:
i) Investigate and present evidence of wife's drug overdose;
ii) Object to the prosecution eliciting expert opinion from domestic violence expert without tendering her as expert witness; and
iii) Recognize a nonwaivable conflict of interest; and
(12) Ineffective assistance of postconviction counsel for failure to present the result of a mental health examination during the postconviction process and trial counsel's failure to present these results to the courts or to petitioner implicating Martinez.
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 the Court must answer under § 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) (citation omitted). 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.
House, 527 F.3d at 1018.
The Court's inquiry pursuant to the "unreasonable application" clause is an objective inquiry. 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. Furthermore,
[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have inreaching 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, 562 U.S. 86, 101 (2011) (citations and internal quotation marks omitted). In conducting this analysis, 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. at 102. In addition, "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
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; see also Richter, 562 U.S. at 102 (stating that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable").
As a condition for obtaining habeas corpus 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 disagreement.
Richter, 562 U.S. at 103.
The Court reviews claims asserting factual errors pursuant to 28...
