Manthey v. Darr et al

Filing 31

ORDER of Dismissal. ORDERED that Applicant Steven A. Mantheys Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. No. 9) is DENIED and the action is DISMISSED WITH PREJUDICE. ORDERED that no certificate of appealability will issue because Mr. Manthey has not made a substantial showing of the denial of a constitutional right by Chief Judge Wiley Y. Daniel on 08/08/11. (jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-01755-WYD
STEVEN A. MANTHEY,
Applicant,
v.
ADAMS COUNTY SHERIFF DOUG DARR, and
THE HONORABLE JOHN SUTHERS, ATTORNEY GENERAL FOR THE STATE OF
COLORADO,
Respondents.

ORDER OF DISMISSAL
WILEY Y. DANIEL, Chief Judge.
Applicant, Steven A. Manthey, is a prisoner on probation under the supervision of
the Adams County Sheriff. He has filed a pro se Amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging his Colorado state conviction
in Adams County District Court Case No. 06CR0254. The Amended Application has
been fully briefed by the parties.
I must construe the Amended Application and other papers filed by Mr. Manthey
liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S.
519, 520-21(1972); Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir.1991). However, I
should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the
reasons stated below, the Amended Application will be denied, and the action will be
dismissed.

I. FACTUAL AND PROCEDURAL BACKGROUND
The Colorado Court of Appeals summarized the facts of Applicant’s conviction as
follows:
Defendant, Steven Allen Manthey, appeals the judgment of
conviction entered on a jury verdict finding him guilty of two counts of
stalking pursuant to section 18-9-111(4)(b)(III), C.R.S. 2008. We affirm.
Evidence was presented at trial that one of the victims, J.S.,
communicated with other men through internet chat rooms, and eventually
communicated with defendant and met him in person. After J.S. and his
wife separated, J.S. and defendant continued to communicate regularly.
During that time, defendant was seen outside J.S.’s workplace and home,
and frequently left gifts or notes at J.S.’s workplace and home. During the
same time period, anonymous letters were sent to J.S.’s employers
alleging that J.S. used the internet during company time to access chat
rooms and engaged in sexual encounters with men. These letters
resulted in the termination of J.S.’s employment at two separate
companies. Although J.S. asked defendant to cease contact with him,
and J.S. and his wife moved to new townhomes and switched cars to
avoid defendant, defendant was still frequently observed in the
neighborhood, including near J.S.’s son’s elementary school, and
continued to attempt to contact J.S. by email.
People v. Manthey, No. 07CA0863 at 1-2 (Colo. App. March 26, 2009) (unpublished
opinion) (Pre-Answer Resp. Ex. E).
The jury convicted Applicant of stalking J.S. and his wife, K.S. The trial court
later sentenced Applicant to five years of probation. After the Colorado Court of
Appeals affirmed his conviction, Applicant petitioned for certiorari review, which the
Colorado Supreme Court denied on September 21, 2009.
On July 23, 2010, Applicant filed an Application for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 in this Court. He filed an Amended Application on
October 8, 2010.

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On November 4, 2010, Magistrate Judge Boyd N. Boland ordered Respondents
to file a Pre-Answer Response limited to addressing the affirmative defenses of
timeliness under 28 U.S.C. §2244(d) and/or exhaustion of state court remedies under
28 U.S.C. § 2254(b)(1)(A). Respondents filed their Pre-Answer Response on
November 24, 2010, conceding that the Amended Application was timely, but arguing
that several of the claims were unexhausted in the state courts and should be
dismissed as procedurally defaulted. After receiving two extensions of time, Applicant
filed a Reply to the Pre-Answer Response on March 3, 2011.
On March 18, 2011, Magistrate Judge Boland entered an order drawing the
case to a district judge and a magistrate judge. The case was assigned to my
chambers on March 25, 2011. On March 30, 2011, I issued an order dismissing Claim
Five as procedurally defaulted. However, finding that Applicant’s remaining claims
(One, Two, Three and Four) were exhausted in the state courts, I directed
Respondents to file an answer fully addressing those claims.
Respondents filed an Answer on April 27, 2011. On April 25, 2011, the state
court record was filed in this action. Applicant filed a Reply on May 27, 2011.
II. STANDARD OF REVIEW ON MERITS
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
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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 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
4

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. “[O]nly the most serious misapplications of Supreme Court precedent
will be a basis for relief under § 2254.” Id.
Claims of factual error are reviewed pursuant to 28 U.S.C. § 2254(d)(2). See
Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002). Section 2254(d)(2)
allows a court to grant a writ of habeas corpus only if the state court decision was
based on an unreasonable determination of the facts in light of the evidence presented.
Pursuant to § 2254(e)(1), I must presume that the state court's factual

determinations are correct and Mr. Manthey bears the burden of rebutting the
5

presumption by clear and convincing evidence.
Additionally, I “owe deference to the state court's result, even if its reasoning is
not expressly stated.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore,
I “must uphold the state court's summary decision unless [my] independent review of
the record and pertinent federal law persuades [me] that [the] result contravenes or
unreasonably applies clearly established federal law, or is based on an unreasonable
determination of the facts in light of the evidence presented.” Id. at 1178. “[T]his
‘independent review’ should be distinguished from a full de novo review of the
petitioner's claims.” Id. Also, pursuant to Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), I grant deference to
state-court decisions that applied a legal standard either identical to the federal
standard or more favorable to the habeas applicant than the federal standard. Patton
v. Mullin, 425 F.3d 788, 795 (10th Cir. 2005).
III. MERITS OF THE CLAIMS
Claims One, Two, Three and Four are the claims remaining at issue in this
action.
A. Claims One and Three
In his first and third claims, Applicant asserts Fourth Amendment violations
arising out of evidence he alleges was unlawfully seized from his home. Because
these claims are related, I find that they properly are addressed together. In his first
claim, Applicant argues that evidence was unlawfully obtained from his home because
the original search warrant was inadequate. Amended Application at 20-23. In his
third claim, Applicant asserts that the search warrant for his home was invalid because
6

it was based on evidence seized during an illegal investigatory detention. Id. at 26-30.
Respondents argue that Applicant’s Fourth Amendment claims have been litigated in
the state courts and, therefore, that Applicant has already been afforded a full and fair
opportunity to argue these claims.
The Fourth Amendment protects against unreasonable search and seizure and
is generally enforced through the exclusionary rule. See, e.g., Illinois v. Gates, 462
U.S. 213, 254 (1983); Stone v. Powell, 428 U.S. 465, 482-87 (1976). “The purpose of
the exclusionary rule is not to redress the injury to the . . . victim . . . . Instead, the rule’s
prime purpose is to deter future unlawful police conduct and thereby effectuate the
guarantee of the Fourth Amendment against unreasonable searches and seizures.”
United States v. Calandra, 414 U.S. 338, 347 (1974). Although habeas review is
generally available for constitutional violations, see 28 U.S.C. § 2254(a), due to the
nature of a Fourth Amendment violation and remedy, a federal court’s review is limited
for alleged Fourth Amendment Violations. See Stone, 428 U.S. at 494.
In Stone, the Supreme Court held that “where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may
not be granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.” Id. This limitation on
federal habeas corpus review is grounded on the determination that the purposes
behind the exclusionary rule do not require that it be applied during federal habeas
review. Id. The Supreme Court noted that, in the federal habeas corpus context, “the
contribution of the exclusionary rule, if any, to the effectuation of the Fourth
Amendment is minimal, and the substantial societal costs of application of the rule
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persist with special force.” Id.
Although the Supreme Court has not set forth a precise meaning of the phrase
“opportunity for full and fair litigation,” the Tenth Circuit has determined that it:
includes, but is not limited to, the procedural opportunity to raise or
otherwise present a Fourth Amendment claim. It also includes the full and
fair evidentiary hearing contemplated by Townsend [v. Sain, 372 U.S. 293
(1963)]. Furthermore, it contemplates recognition and at least colorable
application of the correct Fourth Amendment constitutional standards.
Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978). “Thus, a federal court is
not precluded from considering Fourth Amendment claims in habeas corpus
proceedings where the state court willfully refuses to apply the correct and controlling
constitutional standards.” Id.
It is undisputed that Applicant filed a pre-trial motion to suppress the evidence at
issue and received a hearing on the allegations raised in that motion on December 8,
2006. The suppression hearing was continued on January 12, 2007, and again on
January 29, 2007, when the trial court issued its ruling denying the motions to suppress.
Therefore, I first find that the state court proceedings sufficed to provide Applicant with
an opportunity for full and fair litigation of these claims. Second, Applicant has pointed
to no authority mandating reversal but ignored by the state court, and I have found
none. See Gamble, 583 F.2d at 1165.
Finally, while the Colorado state court looked to both state and federal case law
in making its decision on Applicant’s allegations, the rulings in the cases which were
cited are solidly based in Fourth Amendment precedent as set forth by the United
States Supreme Court. See People v. Manthey, No. 07CA0863 at 4-12. Under this
precedent, the state appellate court determined that, based on the entire record before
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it, there was no constitutional concern present regarding the warrant used to search
Applicant’s house or the evidence seized during the investigatory detention. Applicant
has failed to present any well-pled facts, or any facts at all, from which it can be inferred
that the appellate court failed to recognize or “willfully refuse[d] to apply the correct and
controlling constitutional standards” in this regard, and no such evidence is apparent
from the record. See Gamble, 583 F.2d at 1165. Applicant merely disagrees with the
result, and would like this Court to reconsider these issues de novo. However, that is
not the function of a federal habeas court nor an appropriate review to be undertaken in
a federal habeas case. Accordingly, I find that Applicant is not entitled to federal
habeas review of his Fourth Amendment claims, and Claims One and Three must be
dismissed.
B.

Claim Two

In his second claim, Applicant asserts that his conviction was obtained illegally
through the use of evidence gathered pursuant to an unconstitutional custodial
interrogation. Amended Application at 23-26. In addressing this claim, the state
appellate court concluded:
Defendant next contends the trial court erred in denying his motion
to suppress statements he made to officers during the investigatory stop.
We disagree.
Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L.Ed.2d 694 (1966), statements made by a defendant when he is in
custody and that are the product of police interrogation are inadmissible
unless the defendant was advised of certain constitutional rights and
waived those rights.
The determination of whether an individual is in custody at the time
of questioning is a mixed question of law and fact. Therefore, we defer to
the trial court’s findings of fact if supported by the record, but review de
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novo its application of legal standards to those findings. People v.
Matheny, 46 P.3d 453, 462 (Colo. 2002).
A defendant is in custody if “a reasonable person in the suspect’s
position would consider himself deprived of his freedom of action in a
significant way at the time of questioning.” People v. Breidenbach, 875
P.2d 879, 885 (Colo. 1994).
Generally, a suspect is not in custody for purposes of Miranda
during an investigatory stop because it involves a brief detention and a
less threatening atmosphere than a traditional custodial police
interrogation. Id. at 885-86.
The officers testified that during the encounter with defendant
following the second stop, (1) defendant was not handcuffed or restrained;
(2) the officers’ voices and demeanor were conversational; (3) the officers
did not use coercion or intimidation; and (4) the officers let defendant drive
himself, in his own car, to the park to use the restroom. Therefore, we
conclude the trial court did not err in denying defendant’s motion to
suppress because the record supports the trial court’s findings that
defendant was not in custody when he made the statements to the
officers, and therefore Miranda warnings were not necessary.
People v. Manthey, No. 07CA0863 at 11-12.
The Fifth Amendment of the United States Constitution provides that “[n]o person
. . . shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend V. For that reason, police must advise suspects of their Miranda rights
prior to custodial interrogation. Miranda, 384 U.S. at 467-68. A defendant’s waiver of
his Miranda rights must be voluntary, knowing and intelligent. Id. at 444.
However, Miranda applies only when a suspect is “in custody.” United States v.
Chee, 514 F.3d 1106, 1112 (10th Cir. 2008). A suspect is in the “custody” of police
when he is “deprived of his freedom of action in any significant way or his freedom of
action is curtailed to a degree associated with formal arrest.” Id. (quotations and
citations omitted). The question is whether, under the totality of the circumstances, “a
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reasonable person in the suspect’s position would have understood the situation as the
functional equivalent of formal arrest.” Id. (quotations and alterations omitted).
The Tenth Circuit has set forth several factors which are relevant to the custody
determination, including whether the nature and length of the officers’ questioning was
accusatory or coercive and whether the police informed the defendant that he was free
to decline to answer the officers’ questions or that he could end the interview. See
United States v. Revels, 510 F.3d 1269, 1275 (10th Cir. 2007). In addition, the Tenth
Circuit directs the habeas court to consider whether the circumstances demonstrated a
“police-dominated atmosphere,” which turns on the following factors:
[S]eparation of the suspect from family or colleagues who could offer
moral support; isolation in nonpublic questioning rooms; threatening
presence of several officers; display of a weapon by an officer; physical
contact with the subject; and an officer’s use of language or tone of voice
in a manner implying that compliance with the request might be
compelled.
Stemple v. Workman, 2011 WL 1226902, at *3 (10th Cir. April 4, 2011) (unpublished
opinion) (quoting United States v. Jones, 523 F.3d 1235, 1240 (10th Cir. 2008)).
Having carefully reviewed the record, I conclude that, under the facts of this
case, Applicant was not in police custody at the time he made the statements at issue.
According to the testimony presented at the suppression hearing on December 8, 2006,
the police officers did not use any physical restraints to limit Applicant’s freedom of
movement during the investigatory stop. See Trial Court Transcript, 12/8/2006, p. 1922. Applicant was not handcuffed and the record does not demonstrate that he was
touched by the police officers in any threatening manner. Id. The police officers did not
use or display weapons and they made no threats, but spoke to Applicant calmly and in
11

a conversational manner. Id. Finally, as noted by the Colorado Court of Appeals,
Applicant was allowed to leave the scene to drive himself to a nearby park to use the
restroom. Id. These facts relied upon by the Colorado courts support the finding that
Applicant was not in custody. There is simply no indication that Applicant was in a
“police dominated” atmosphere at the time of the questioning. Stemple, 2011 WL
1226902, at *3. Therefore, I find that the Colorado Court of Appeals’ conclusion with
respect to Applicant’s Miranda claim is not an unreasonable application of Supreme
Court precedent, nor an unreasonable determination in light of the facts presented.
Accordingly, Applicant is not entitled to federal habeas relief on this claim and Claim
Two must be dismissed.
C.

Claim Four

In his fourth claim, Applicant contends that the prosecution withheld key evidence
and discovery until the middle of the trial, in violation of his due process right. Amended
Application at 31-33.
In addressing this claim, the appellate court determined:
We next consider defendant’s contention that the trial court erred
in refusing to impose “meaningful sanctions” for the prosecution’s
numerous delays and discovery violations. Because defendant does not
establish he was prejudiced, we reject his contention.
“The choice of an appropriate sanction for a violation of a
discovery rule lies within the sound discretion of the trial court.” People v.
Daley, 97 P.3d 295, 298 (Colo. App. 2004). “An order imposing sanctions
will not amount to an abuse of discretion unless it is manifestly arbitrary,
unreasonable, or unfair.” Id.
When fashioning sanctions for a discovery violation, the court
should consider (1) the reasons the disclosure was not made; (2) the
extent of the prejudice, if any, to the opposing party; (3) the feasibility of
rectifying that prejudice by continuance; and (4) any other relevant
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circumstances. Id. The trial court should impose the least severe
sanctions that will remedy the violation. Id.
After defendant made numerous complaints of untimely discovery,
the trial court found that there had been “some delay in producing
information,” but that it did not have “anything to do with [the prosecutor]
or his office.” After continuing the trial for unrelated reasons, the court
noted that the parties should review the discovery and determine when
each piece was produced, and, if a piece was untimely produced and a
showing of prejudice could be made, its admissibility would be ruled on
during the trial.
Defendant contends the trial court should have imposed more
meaningful sanctions for the prosecutor’s failure to timely disclose
thousands of pages of discovery produced at the suppression hearing,
certain tape recordings seized from defendant’s home, and an envelope
that contained a letter written to J.S.’s mother-in-law.
However, at trial: (1) defense counsel conceded she could not
establish prejudice as to the documents turned over at the suppression
hearing; (2) defense counsel had one of the tapes reformatted because it
was inaudible, and had a “better version” of the transcript than that
provided by the police; and (3) the trial court excluded the envelope.
Therefore, because defendant has failed to indicate how the belated
production of these items prejudiced his case, see Salazar v. People, 870
P.2d 1215 (Colo. 1994) (failure to comply with discovery rules not
reversible absent demonstration of prejudice), we find no error.
Additionally, we are not persuaded prejudice can be established by
defendant’s assertion that untimely disclosure of the original envelope
prevented him from testing it for fingerprints or DNA, because speculation
regarding the possible exculpatory effect if evidence were available for
testing is not sufficient to establish prejudice. See Daley, 97 P.3d at 299.
People v. Manthey, No. 07CA0863 at 12-14.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that the
failure to disclose exculpatory evidence violates due process “irrespective of the good
faith or bad faith of the prosecution.” However, “[t]he United States Constitution, as
interpreted by Brady, does not require the prosecution to divulge every possible shred
of information that could conceivably benefit the defendant.” United States v. Kennedy,
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29 F.Supp.2d 662, 680 (D. Colo. 1998) (citing Moore v. Illinois, 408 U.S. 786, 795
(1972) (finding “no constitutional requirement that the prosecution make a complete and
detailed accounting to the defense of all police investigatory work on a case.”)).
Instead, a habeas applicant seeking relief for a Brady violation must establish
that: “(1) the prosecution suppressed evidence; (2) the evidence was favorable to the
accused; and (3) the evidence was material to the defense.” Trammell v. McKune, 485
F.3d 546, 551 (10th Cir. 2007) (quoting Snow v. Sirmons, 474 F.3d 693, 711 (10th Cir.
2007)). Favorable evidence “is material . . . if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (citation and internal
quotations omitted). A “reasonable probability” of a different result exists when the
suppression of evidence “undermines confidence in the outcome of the trial.” Id. at 434.
Therefore, the question is not whether disclosure of the suppressed evidence would
have more likely than not resulted in a different verdict, but whether in its absence,
defendant received a fair trial, i.e., a trial which resulted in a verdict worthy of
confidence. Id. Courts must “evaluate the materiality of withheld evidence in light of the
entire record in order to determine if the omitted evidence creates a reasonable doubt
that did not otherwise exist.” Trammell, 485 F.3d at 551 (internal quotation marks and
citations omitted).
In this case, Applicant argues that:
The discovery violations in this case were rampant and often with the
apparent attempt to break the will and back of the defense . . . . The failure
to provide disclosure even extended to the prosecutor. As noted above,
[K.S.’s] mother, Mrs. Simons, testified that she did give the prosecutor the
original letter and envelope sealed in a plastic bag prior to the first trial
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setting. The prosecutor’s failure to keep and produce these key items until
the middle of trial precluded DNA testing prior to trial. The mere exclusion
of the Simons’ envelope was not a sanction.
Amended Application at 31-32 (emphasis in original). Applicant further argues that:
The police and the prosecution violated both the letter and spirit of Rule 16
of the Colorado Rules of Criminal Procedure and the basic Fifth
Amendment due process rights of this Petitioner. The People withheld
key pieces of evidence until the middle of trial. The police and the
prosecution in this case chose which items to produce when, and played a
“cat with string” game where defense counsel is forced to chase the string
around, never reaching the end. The People produced the discovery in
this case only when they had to do so.
Id. at 32-33 (emphasis in original).
First, with respect to Applicant’s argument that the alleged discovery violations
violated Rule 16 of the Colorado Rules of Criminal Procedure, federal courts do not
grant habeas relief for errors of state law. See Estelle, 502 U.S. at 67. This is because
“[f]ederal habeas review is not available to correct state law evidentiary errors; rather it
is limited to violations of constitutional rights.” Thornburg v. Mullin, 422 F.3d 1113,
1128-29 (10th Cir. 2005). Second, in the Amended Application, Applicant fails to
identify any crucial evidence, other than the envelope, that was withheld by the
prosecution or the police department. Instead, Applicant focuses on the prosecution’s
failure to timely disclose the envelope.

The significance of the envelope was set forth in Applicant’s opening brief on appeal as
follows:
During trial, [K.S.’s] mother, Ms. Simons, testified that she received
an anonymous letter in 2004 that [J.S.] was gay and that he was having
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unprotected sex with men . . . . When asked in cross-examination about
the envelope in which the letters were included, Ms. Simons stated that
she had brought the original envelope to the prosecution. [citations
omitted].
....
During the lunch break, the prosecutor Mr. Stumpf told the Trial
Court that there was not a failure to provide discovery on this original
envelope because he had never had it before. The Trial Court ruled that
the envelope would not come into evidence.
....
[The prosecutor] then represented to the trial court, again in a
sidebar conference over the objection of defense counsel, that he had
forgotten that Ms. Simons had provided [the envelope] and it was really no
big deal anyhow. Yet it was undisputed that the production of the
envelope, during trial, did not allow for any testing for fingerprints, DNA,
etc.
Pre-Answer Response, Ex. B2 at 24-26 (emphasis in original).
Applicant asserts that he was prejudiced by the prosecution’s failure to timely
disclose the envelope because he would have had “the envelope seal tested for DNA to
exonerate him.” Amended Application at 32. However, Applicant fails to demonstrate
that the envelope was material, because he has not demonstrated “a reasonable
probability that, had [the envelope] been disclosed to the defense, the result of the
proceeding would have been different.” Kyles, 514 U.S. at 433. Materiality depends
upon the circumstances; when a habeas applicant’s claim rests on an alleged Brady
violation, relief is not warranted if his “conviction is supported by overwhelming evidence
of guilt.” Case v. Hatch, --- F.Supp.2d ----, 2011 WL 1126335, at *13 (D.N.M. March 28,
2011) (citing Leka v. Portuondo, 257 F.3d 89, 104 (2nd Cir. 2001)). That is, “[w]ithheld
favorable evidence . . . , in a context where the undisclosed material could have been
16

used to render the evidence of guilt ambiguous[,] has a more significant impact than
where the evidence of guilt is otherwise ample.” Id. (citing Spicer v. Roxbury Corr. Inst.,
194 F.3d 547, 561 (4th Cir. 1999)). In this case, I find that the evidence of Applicant’s
guilt was ample.
Applicant was convicted of stalking pursuant to Colo. Rev. Stat. § 18-9-111(4)(b)
(2008). The jury was instructed that the elements of the crime of stalking were: (1) that
the defendant, (2) in the State of Colorado, at or about the date and place charged, (3)
knowingly, (4) directly, or indirectly through another person, (5) repeatedly, (6) followed,
approached, contacted, placed under surveillance or made any form of communication
with, (7) [J.S.], (8) in a manner that would cause a reasonable person to suffer serious
emotional distress, and (9) did cause [J.S.], (10) to suffer serious emotional distress.
See Colo. Rev. Stat. § 18-9-111(4)(b) (2008); see also Trial Court Record, Jury
Instruction No. 11, p. 56.
At trial, J.S. testified that, after he ended his relationship with Applicant, Applicant
was frequently observed in J.S.’s neighborhood, and repeatedly contacted J.S. by email
and telephone. Trial Court Transcript, 2/12/2007, p. 166-175. J.S. also testified that he
moved to a new home in order to avoid Applicant, but still observed Applicant driving
near his new house. Id. J.S. stated that he was in constant fear of Applicant. Id. at
178-79. Further, police officers found surveillance logs in Applicant’s car that contained
extremely detailed observations of J.S.’s and K.S.’s activities, movements and
whereabouts. See Trial Court Record, People’s Exhibit 16. The surveillance logs held
voluminous notes indicating that Applicant was repeatedly contacting J.S., and other
members of his family, and that Applicant was driving by J.S.’s house and making notes
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of his whereabouts up to seven times per day. See id.
Considering all of the above, I find that Applicant’s convictions for stalking J.S.
and K.S. are “supported by overwhelming evidence of guilt.” Case, 2011 WL 1126335,
at *13. Even assuming that DNA evidence from the envelope demonstrated that the
letter was not sent by Applicant, there was ample evidence aside from the letter for a
reasonable jury to convict Applicant of stalking J.S. and K.S. Therefore, Applicant’s
claim that the early disclosure of the envelope would have altered the course of the
jury’s decision is no more than speculative. See Sandoval v. Ulibarri, 548 F.3d 902, 915
(10th Cir. 2008) (rejecting a Brady claim where appellant’s argument that a medical
report would have been exculpatory was merely speculative). Applicant has failed to
establish that the prosecution’s untimely disclosure of the envelope “undermines
confidence in the outcome of [his] trial.” Kyles, 514 U.S. at 434.
I find that the Colorado Court of Appeals’ conclusion with respect to Applicant’s
Brady claim is not an unreasonable application of Supreme Court precedent, nor an
unreasonable determination in light of the facts presented. Accordingly, I find and
conclude that Applicant is not entitled to federal habeas relief on his fourth claim.

IV.

Conclusion
I find that Applicant is not entitled to relief on any of his claims, and that his

Amended Application for a Writ of Habeas Corpus must be dismissed. Accordingly, it is
ORDERED that Applicant Steven A. Manthey’s Amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. No. 9) is DENIED and the action is
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DISMISSED WITH PREJUDICE. It is further
ORDERED that no certificate of appealability will issue because Mr. Manthey has
not made a substantial showing of the denial of a constitutional right.
Dated this 8th day of August, 2011.
BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE

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