Velasquez v. Faulk

• Decision Date: 05 February 2014
• Docket Number: Civil Action No. 12-cv-02057-WYD
• Parties: JUAN VELASQUEZ, Applicant, v. WARDEN FAULK, L.C.F., and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

JUAN VELASQUEZ, Applicant, v. WARDEN FAULK, L.C.F.,and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

Civil Action No. 12-cv-02057-WYD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: February 5, 2014

Senior Judge Wiley Y. Daniel

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before me on the pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) ("Application") filed by Applicant Juan Velasquez.

I. Background

A jury convicted Velasquez of attempted first degree murder and first degree assault. His convictions arose from an incident in which he stabbed the victim with a knife while sitting behind him on a motorcycle. The trial court also found Velasquez to be a habitual criminal and imposed two concurrent ninety-six-year sentences. Velasquez moved pro se for a new trial pursuant to Crim. P. 33(c), arguing ineffective assistance of counsel and other matters. The trial court denied the motion. On direct appeal, a division of this court affirmed his convictions in People v. Velasquez, (Colo. App. No. 03CA2449, Nov. 9, 2006) (not published pursuant to C.A.R. 35(f)).

Velasquez subsequently sought relief pursuant to Crim P. 35(c), arguing he was denied a jury trial on the habitual criminal counts and he received ineffective assistance of counsel, but based on different allegations than contained in his motion under Crim. P. 33(c). The trial court denied his motion.

People v. Velasquez, No. 07CA1796, 1-2 (Colo. App. Jan. 15, 2009).

In Case No. 07CA1796, the Colorado Court of Appeals (CCA) affirmed the denial in part, reversed in part, and remanded for an evidentiary hearing on Applicant's ineffective assistance of counsel claim regarding a failure to investigate and raise the voluntary intoxication defense. Id. at 11. After the remand hearing, the trial court again denied the Rule 35(c) postconviction motion and the CCA affirmed. Applicant petitioned for certiorari review and, according to Respondents, which Applicant does not deny, the Colorado Supreme Court (CSC) has yet to rule on the petition. Applicant then commenced this action on August 6, 2012, and filed an Amended Application on September 4, 2012. In the Amended Application, Applicant asserts:

(1) Denial of a right to conflict free counsel;

(2) Lack of sufficient evidence to support a charge of attempted first degree murder;

(3) Lack of a sufficient indictment resulting in the inability to prepare a defense;

(4) Lack of sufficient evidence to prove habitual criminal counts;

(5) Disproportionate sentence;

(6) Prosecutorial misconduct;

(7) Ineffective assistance of trial counsel because

(a) Counsel coerced Applicant not to testify;

(b) Counsel failed to raise an affirmative defense of voluntary intoxication;

(c) Counsel failed to conduct a reasonable investigation and interview witnesses in support of a voluntary intoxication defense;(d) Counsel failed to object to the prosecution's misstatements of law and misconduct in closing and rebuttal arguments; and

(e) Cumulative error; and

(8) Denial of a right to jury trial on habitual criminal findings.

On February 1, 2013, I dismissed Claim Three as procedurally barred from federal habeas review and ordered Respondents to file an Answer. Respondents filed an Answer, ECF No. 21, on March 21, 2013. Applicant did reply to the Answer. After reviewing the file, including the Application, the Answer, and the state court record, I conclude that the Application should be denied and the case dismissed with prejudice for the following reasons.

II. Legal Standard

A. Pro Se Standard of Review

Applicant is proceeding pro se. I, therefore, "review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). An applicant's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 958 (10th Cir. 2002).

B. 28 U.S.C. § 2254

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).

Claims of legal error and mixed questions of law and fact are reviewed 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). 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).

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 anunreasonable 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.

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 generalthe 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). 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. "Even 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, not a substitute for ordinary error correction through appeal." Id. (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 disagreement.

Richter, 131 S. Ct. at 786-87. Applicant...