Tally v. Ortiz
| Decision Date | 29 November 2007 |
| Docket Number | No. 06-1523.,06-1523. |
| Citation | 508 F.3d 1291 |
| Parties | Robin V. TALLY, Petitioner-Appellant, v. Joe ORTIZ, Director, Colorado Department of Corrections; Ron Leyba, Warden, San Carlos Correctional Facility, Pueblo, Colorado; John Suthers, Attorney General, State of Colorado, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Douglas K. Wilson, Colorado State Public Defender, Denver, CO, Andrew C. Heher, Office of the State Public Defender, Denver, CO, for Petitioner-Appellant.
John D. Seidel, John W. Suthers, Attorney General, State of Colorado Department of Law, Denver, CO, for Respondents-Appellees.
Before KELLY, MURPHY, and O'BRIEN, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY & DISMISSING APPEAL
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Robin Tally filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus. The district court denied the petition as well as Tally's request for a certificate of appealability (COA). Tally renews his request for a COA here. See 28 U.S.C. § 2253(c)(1)(A). We deny a COA and dismiss this incipient appeal.
Tally repeatedly shot a former co-worker on August 24, 1995. He initially pled not guilty, but later changed his plea to not guilty by reason of insanity. Pursuant to a court order, Tally entered the Colorado Mental Health Center on December 14, 1995. He was discharged at the end of January 1996. Dr. David Johnson, a certified forensic psychiatrist, concluded Tally suffered from a "personality persecutorial type trait," but was sane at the time of the shooting. (R. Vol. V at 7.) Tally was committed a second time in February 1996 to determine his competency to stand trial. In March, Dr. Johnson determined Tally was not competent to stand trial due to the development of a delusional disorder. The delusional disorder affected Tally's interpretation of reality to the point he was unwilling to accept the victim's death. When attempts at counseling proved unsuccessful, Dr. Johnson prescribed medication for the disorder but Tally refused the medication.
Tally became increasingly agitated and, on May 2, 1996, made threats to the staff. As a result, he was administered psychotropic medication pursuant to emergency protocol. The prosecution moved the court to continue the involuntary medication beyond the ten-day emergency period. The court held a hearing on May 13, 1996, to address Tally's need for medication and the possible side effects. Dr. Johnson testified Tally had "shown extremely dangerous behavior" and opined that if medication were to cease Tally would become increasingly dangerous to others. (Id. at 20.) After a detailed discussion of the likelihood and possible side effects of the medication, Dr. Johnson reiterated the administration of anti-psychotic medication was necessary to prevent a significant and likely long term deterioration in Tally's medical condition and to prevent the likelihood of Tally causing serious bodily injury to others at the institution. Finally, Dr. Johnson averred the treatment was the least intrusive alternative and Tally's need for the medication was sufficiently compelling to override any legitimate interest in refusing treatment. The court granted the prosecution's motion, determining continuing involuntary medication was the least intrusive means available to prevent significant deterioration in Tally's condition and to protect others.
In August 1996, Dr. Johnson reported Tally had been restored to competency, in large part due to the continuing involuntary medication. Following a hearing, the court determined Tally was competent but ordered the involuntary medication be continued. In October 1996, Tally moved to discontinue the medication, claiming he could not be medicated against his will after being found competent. The trial court denied the motion without a hearing, adopting its findings from the May hearing that the medication was necessary to maintain Tally's competency and to protect others.
Tally's trial began on January 6, 1997. The jury found him guilty of first degree murder and Tally was sentenced to life imprisonment without parole. The Colorado Court of Appeals affirmed his conviction. People v. Tally, 7 P.3d 172 (Colo. App.1999) (Tally I), cert. denied sub nom., Tally v. Colorado, 535 U.S. 1082, 122 S.Ct. 1970, 152 L.Ed.2d 1029 (2002). Tally filed a motion in state district court to vacate his conviction pursuant to Rule 35 of the Colorado Rules of Criminal Procedure. The district court denied the motion without a hearing on June 17, 2003. Tally appealed to the Colorado Court of Appeals which affirmed in an unpublished decision. People v. Tally, No. 03CA1723, 2005 WL 1119765 . The Colorado Supreme Court denied Tally's subsequent petition for certiorari. Tally v. People, No. 05SC583, 2006 WL 381421 (Colo. Jan 17, 2006).
Thereafter, Tally filed a § 2254 petition in the United States District Court for the District of Colorado asserting seven claims. The district court dismissed the petition, concluding the rulings of the Colorado Court of Appeals on six of his claims were not contrary to clearly established federal law and the remaining claim was procedurally barred. Tally v. Ortiz, No. 06-cv-00188, 2006 WL 3201313 (D.Colo. 2006) (Tally II). The district court denied Tally's request for a COA.
A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA only if Tally makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that "reasonable jurists could debate whether . . . the petition should have been resolved [by the district court] in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). Insofar as the district court dismissed his habeas petition on procedural grounds, Tally must demonstrate both that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id. We review the district court's factual findings for clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001).
Tally wishes to present five issues on appeal, contending the trial court erred in: (1) allowing the prosecution to use Tally's silence during a sanity examination as evidence of guilt in violation of his right to remain silent and his right to due process; (2) foreclosing Tally's right to cross-examine Dr. Johnson as to the reason for Tally's silence during the sanity examination; (3) failing to hold an evidentiary hearing or make required findings prior to denying Tally's request to cease his involuntary medication; (4) determining Tally's waiver of his right to testify was voluntary; and (5) concluding Tally's challenge to the constitutionality of Colorado's competency provision was procedurally barred.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), "work[ed] substantial changes" to the power of federal courts to grant habeas corpus relief. Felker v. Turpin, 518 U.S. 651, 654, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). "AEDPA limited rather than expanded the availability of habeas relief." Fry v. Pliler, ___ U.S. ___, 127 S.Ct. 2321, 2327, 168 L.Ed.2d 16 (2007); 28 U.S.C. § 2254(d)(1). It allows a state court decision to be set aside on federal habeas review only if it is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Fry, 127 S.Ct. at 2326.1 The statute sets forth preconditions, it is not "an entitlement." Id. at 2327.
"`[C]learly established Federal law' in § 2254(d)(1) refers to the `holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant state-court decision.'" Carey v. Musladin, ___ U.S. ___, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). To be "contrary to" clearly established Federal law, the state court must apply "a rule that contradicts the governing law set forth in [Supreme Court] cases" or "confront[ ] a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrive[ ] at a result different from [Supreme Court] precedent." Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. When the court confronts facts that are merely similar to those in a Supreme Court precedent, a different result is not contrary to clearly established Federal law. See Lockyer v. Andrade, 538 U.S. 63, 74, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).
"The unreasonable application clause of § 2254(d)(1) applies when the state court identifies the correct governing legal principle from Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (quotations and citation omitted). The state court's application must be "objectively unreasonable," and will not be overturned...
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