Wallin v. Miller

• Decision Date: 30 March 2015
• Docket Number: Civil Action No. 14-cv-01968-GPG
• Parties: OLOYEA D. WALLIN, a.k.a. DONALD OLOYEA WALLIN, a.k.a. OLOYEA WALLIN, Applicant, v. MICHAEL MILLER, Warden of Crowley County Correctional Facility, and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents.
• Court: U.S. District Court — District of Colorado

OLOYEA D. WALLIN, a.k.a. DONALD OLOYEA WALLIN, a.k.a. OLOYEA WALLIN, Applicant, v. MICHAEL MILLER, Warden of Crowley County Correctional Facility,and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents.

Civil Action No. 14-cv-01968-GPG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 30, 2015

Chief Judge Marcia S. Krieger

ORDER TO DISMISS IN PART AND FOR ANSWER

I. BACKGROUND

Applicant currently is housed at the Williams Street Center in Denver, Colorado. Applicant, acting pro se, has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, ECF No.1. In an order entered on July 16, 2014, Magistrate Judge Boyd N. Boland directed Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A) if Respondents intended to raise either or both of those affirmative defenses in this action.

Respondents filed their Pre-Answer Response, ECF No. 16, on September 3, 2014. After three requests for an extension of time by Applicant and a granting by the Court of the extensions, Applicant filed a Reply, ECF No. 24, on December 9, 2014. Magistrate Judge Gordon P. Gallagher then determined that to complete initial review additional court records were required and directed Respondents to provide the State Court Flat File in Case No. 03CR2296, which they did on January 14, 2015.

Applicant raises twenty-one claims in the Application. The claims are as follows:

(1) Fourteenth Amendment violation by trial court in admitting domestic violence expert testimony;

(2) Fourteenth Amendment violation by trial court in admitting a recording of a telephone call;

3) Due process and double jeopardy violation by trial court in denying presentence confinement credit;

4) Fourteenth Amendment violation by trial court in admitting involuntary statements by victim;

5) Constitutional violation by trial court in failing to exclude victim's trial testimony;

6) Ineffective assistance of counsel in trial, appellate, and sentencing proceedings, including:

Trial Counsel-

i) admission of guilt on behalf of Applicant;

ii) ineffective in closing arguments;

iii) failure to obtain an expert witness;

iv) failure to investigate and put prosecution's case to the test by attacking witnesses' credibility, objecting to evidence, and conducting discovery;

v) failure to file for new trial;

vi) failure to object to trial continuance;

vii) intentional waiver of Applicant's presence at hearings;

viii) failure to attack D.V. syndrome and recantation arguments;

ix) failure to attack involuntary victim statements;

x) failure to attack statements that violated physician-patient privilege; xi) failure to attack abuse of subpoena powers;

xii) failure to attack insufficiency of evidence;

Appellate Counsel-

i) failure to raise arguments in direct appeal; and

Sentencing Counsel-

i) failure to challenge violent sentencing.

7) Right to a fair trial violated by trial court when allowed jury to hear victim suffered from D.V. syndrome;

8) Due process rights violated by trial court when prosecution advisory witness was allowed to testify last after other witnesses testified;

9) Prosecutorial Misconduct;

10) Due process and equal protection violation in the use of victim's confidential medical information that was subject to physician-patient privilege;

11) Due process and equal protection violation by trial court's abuse of subpoena powers;

12) Due process and equal protection violation by conviction with insufficiency of the evidence;

13) Due process and equal protection violation by inadequacies in jury activities, including Batson violation, lack of specific findings, failure to inform jury of circumstances of victim's testimony;

14) Due process and equal protection violation during the preliminary hearing due to prosecution's failure to establish probable cause;

15) Due process and equal protection violation by trial court in not dismissing the information/complaint for lack of probable cause;

16) Due process and equal protection violation by trial court in ordering a disproportionate sentence;

17) Colo. Rev. Stat. § 12-36-135 violates right to confidentiality and is unconstitutionally applied;18) Constitutional violations by trial court in the postconviction motion proceedings, including denial of hearing, appointment of counsel, and failure to vacate restraining order;

19) Constitutional violations by trial judge's failure to recuse;

20) Constitutional violations in information disclosed by witness when testifying; and

21) Constitutional violations by appellate court when it refused to hear the amicus curiae brief and to properly review the postconviction motions and by trial court when it refused to issue any findings of fact and conclusions of law on any postconviction issues.

II. STANDARDS OF REVIEW

The Court must construe liberally the Application, Reply, and other pleadings, because Applicant is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court does not act as Plaintiff's advocate. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (citing Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)).

Respondents concede the action is timely but contend that only Claim Nineteen is exhausted. ECF No. 16 at 6 and 14. Respondents further assert that Claim Two is unexhausted, the remaining claims are defaulted, and Claims Eighteen and Twenty-One also fail to state a cognizable federal habeas claim. Id. at 14 and 25. The Court will discuss each claim in turn as follows.

III. PROCEDURAL STATUS OF CLAIMS

1. Claim One-Procedurally Defaulted

Respondents argue that Applicant failed to present this claim as a federal constitutional issue and that any attempt to raise this claim would be denied as time barred, successive, and an abuse of process. Id. at 15. Applicant, in a conclusory manner, states this claim was presentedadequately as a federal claim in state court. ECF No. 24 at 1.

Upon review of Claim One, the Court finds that Applicant did fail to present this claim in state court as a federal constitutional violation. Applicant stated twice in his brief on direct appeal that he was prejudiced by the domestic violence expert testimony, but he failed to cite to any United States Supreme Court authority. See ECF No. 16-4, Ex. C, at 8-13. Applicant relied only on Colorado state case law, which addressed state court rules of evidence, in developing his argument that the trial court erred in admitting the expert testimony, id.; and the CCA addressed only the state case law argument in finding no abuse of discretion by the trial court in admitting the testimony, ECF No. 16-6, Ex. E., at 6-10. For state courts to act on, or correct, constitutional violations, Applicant must do more than just invoke magic words which may possibly be interpreted to raise a constitutional claim. Applicant must assert legal theory that explains how the decisions of the state court violated the particular federal constitutional rights he claims were violated. See, e.g., Anderson v. Harless, 459 U.S. 4, 7-8 (1982) (claim on direct appeal that jury instruction was reversible error did not fairly present due process challenge to instruction for habeas exhaustion purposes); Picard v. Connor, 404 U.S. 270, 276-77 (1971) (holding that habeas petitioner failed to fairly present federal claim to state court where, despite presenting all necessary facts, petitioner failed to assert specific argument that he later tried to raise in federal court); see also Thomas v. Gibson, 218 F.3d 1213, 1221 n. 6 (10th Cir. 2000) (holding that petitioner's general state court claim was insufficient to exhaust his later, more specific federal habeas claim). Accordingly, Applicant has failed to exhaust state court remedies in Claim One.

With limited exceptions that are not applicable to this claim, the Colorado Rules of Criminal Procedure bar Applicant from raising a claim in a postconviction motion that couldhave been raised on direct appeal, or that was already raised on postconviction appeal. See Colo. R. Crim. P. 35(c)(3)(VI) ("The court shall deny any claim that was raised and resolved in a prior appeal or postconviction proceeding on behalf of the same defendant"); Colo. R. Crim. P. 35(c)(3)(VII) ("The court shall deny any claim that could have been presented in an appeal previously brought or postconviction proceeding previously brought"); see also People v. Bastardo, 646 P.2d 382, 383 (Colo. 1982) (stating that post-conviction review is not available to address under a recently contrived constitutional theory issues that were raised previously).

If it is obvious that an unexhausted claim would be procedurally barred in state court the claim is subject to an anticipatory procedural bar, see Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (citation omitted), and is procedurally barred from federal habeas review, Steele v. Young, 11 F.3d 1518,1524 (10th Cir. 1993) (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Plaintiff could have asserted the Fourteenth Amendment violation by trial court in admitting domestic violence expert testimony in his direct appeal, but because he failed to do so the claim is subject to an anticipatory procedural bar in state court and, therefore, barred from federal habeas review.

Applicant also has failed to show cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that the failure to consider his claim will result in a fundamental miscarriage of justice. Claim One, therefore, will be dismissed.

2. Claim Two-Exhausted

Respondents assert that Claim Two is not exhausted because Applicant raised this claim in his direct appeal but failed to petition the Colorado Supreme Court (CSC) for certiorari review when his conviction was affirmed on...