Redwine v. Medina et al
Filing
34
ORDER Denying 28 USC § 2254 Application. ORDERED that the habeas corpus application is denied, and the action is dismissed with prejudice. Each party shall bear his own costs and attorney's fees. No certificate of appealability will issue. Leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 5/3/13. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Lewis T. Babcock
Civil Action No. 12-cv-01217-LTB-KLM
TERRENCE S. REDWINE,
Applicant,
v.
ANGEL MEDINA (Warden), and
THE ATTORNEY GENERAL OF THE STATE OF [COLORADO] JOHN W. SUTHERS,
Respondents.
ORDER DENYING 28 U.S.C. § 2254 APPLICATION
Applicant, Terrence S. Redwine, was a prisoner in the custody of the Colorado
Department of Corrections and incarcerated at the correctional facility in Limon,
Colorado, when he filed pro se an application for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 (ECF No. 1) challenging the second revocation of his probation and
subsequent resentencing to a four-year term of imprisonment. He does not challenge
his conviction. He currently is on parole. He has paid the $5.00 filing fee. ECF No. 12.
On May 10, 2012, 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), if Respondents intended to raise either or both of defenses in this action.
On May 24, 2012, Respondents filed a pre-answer response (ECF No. 8) to the habeas
corpus application, arguing that Mr. Redwine’s claims were unclear and unexhausted
except perhaps part of claim three. On June 6, 2012, Mr. Redwine filed a reply (ECF
No. 11) to Respondents’ pre-answer response.
On June 29, 2012, the Court ordered Mr. Redwine to file within thirty days an
amended application asserting exhausted claims that complied with the pleading
requirements of Rule 2(c) of the Rules Governing Section 2254 Cases in the United
States District Courts and Rule 8 of the Federal Rules of Civil Procedure. ECF No. 13.
On July 12, 2012, Mr. Redwine filed the amended application (ECF No. 14).
On July 17, 2012, the Court ordered Respondents to file a second pre-answer
response to the amended application. On July 26, 2012, Respondents filed the second
pre-answer response (ECF No. 16). On August 17, 2012, Mr. Redwine filed a reply
titled “Motion to Dismiss Pre-Answer Response and Dismiss Claim One and Claim Two”
(ECF No. 17), asking to dismiss his first and second claims and proceed only on his
third claim. On August 24, 2012, he filed a notice of change of address (ECF No. 18)
informing the Court he would be on parole effective August 29, 2012.
On September 11, 2012, the Court entered an order (ECF No. 23) granting Mr.
Redwine’s August 17 motion to dismiss claims one and two, dismissing as not
cognizable in a habeas corpus action claim three to the extent it asserted that the trial
court violated state law by imposing a four-year prison sentence, and ordering an
answer from Respondents within thirty days as to the remaining and exhausted portion
of claim three asserting that the evidence was insufficient to sustain the probation
revocation. The September 11 order allowed Mr. Redwine to file a reply, if he desired,
within thirty days from the filing of the Respondents’ answer. Also on September 11 the
Court entered a separate order (ECF No. 21) for the state court record.
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On October 12, 2012, the state court record was filed. See ECF No. 25. On
November 19, 2012, the Court entered a second order (ECF No. 26) for Respondents to
file within fourteen days the answer, which had not been filed by November 11, 2012, as
directed. On November 28, 2012, Respondents filed their answer (ECF No. 27). Later
on November 28, Respondents filed an amended answer (ECF No. 28). Mr. Redwine
did not file a reply.
On April 11, 2013, the Court entered an order for a supplemental state court
record because the record submitted on October 12 was missing the complete
transcript from the second revocation hearing held on June 16, 2009, which was
pertinent to the remaining claim in Mr. Redwine’s amended application pending before
the Court. On April 29, 2013, after an extension of time, the supplemental state court
record was filed.
The Court must construe Mr. Redwine’s filings liberally because he 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 should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, remaining claim three and the amended application will be dismissed.
I. Factual and Procedural Background
On June 19, 2008, a jury convicted Mr. Redwine in Denver District Court Case
No. 07CR7213 on one count of distribution of a controlled substance. ECF No. 8, ex. A
(state register of actions) at 10. On July 22, 2008, he was sentenced to three years of
intensive supervised probation (ISP), with drug treatment as a condition of probation.
ECF No. 8, ex. A at 9-10.
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On September 4, 2008, Mr. Redwine appealed. ECF No. 8, ex. A at 9. On
September 30, 2008, during the pendency of Mr. Redwine’s direct appeal, the trial court
revoked probation after Mr. Redwine admitted a probation violation. ECF No. 8, ex. A at
8. The trial court regranted three years of ISP, with ninety days in jail and inpatient drug
treatment as a condition of probation. Id. Respondents contend there is no indication in
the state court record that Mr. Redwine appealed from this revocation and
resentencing.
On June 16, 2009, again during the pendency of direct appeal, the trial court,
after a hearing, revoked probation a second time, resentencing Mr. Redwine to a fouryear prison sentence, plus sixty months of mandatory parole. ECF No. 8, ex. A at 7.
On July 6, 2010, Mr. Redwine initiated an appeal from the revocation and resentencing.
ECF No. 8, ex. A at 6, ex. H (“Motion to Accept the Notice of Appeal and Designation of
Record as Timely Filed”) at 2-3.
On January 20, 2011, the Colorado Court of Appeals affirmed the judgment of
conviction entered upon the jury verdict finding Mr. Redwine guilty of unlawful
distribution of a controlled substance. ECF No. 8, ex. I (People v. Redwine, No.
08CA1835 (Colo. Ct. App. Jan. 20, 2011) (not published)). The information submitted in
support of Respondents’ pre-answer response shows the Colorado Supreme Court
denied certiorari review on differing dates, i.e., on March 19, 2011 (ECF No. 8, ex. J),
March 22, 2011 (ECF No. 8, ex. A at 5), and April 21, 2011 (ECF No. 8, ex. A at 6).
On July 11, 2011, while the appeal from the second revocation was pending, Mr.
Redwine filed a postconviction motion pursuant to Rule 35(b) of the Colorado Rules of
Criminal Procedure seeking reconsideration of the four-year prison term imposed after
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the second revocation. ECF No. 8, ex. A at 6. On September 21, 2011, the trial court
denied the motion. ECF No. 8, ex. A at 5. Mr. Redwine did not appeal.
On November 17, 2011, the Colorado Court of Appeals affirmed the probation
revocation and four-year prison sentence. ECF No. 8, ex. D (People v. Redwine, No.
10CA1370 (Colo. Ct. App. Nov. 17, 2011) (not published)). On March 19, 2012, the
Colorado Supreme Court denied certiorari review. ECF No. 8, ex. B.
On May 9, 2012, Mr. Redwine filed his original habeas corpus application in this
Court asserting three claims (ECF No. 1). On July 12, 2012, he filed the amended
application also asserting three claims (ECF No. 14). On September 11, 2012, the
Court entered its order (ECF No. 23) granting Mr. Redwine’s August 17, 2012, motion to
dismiss claims one and two, and dismissing as not cognizable in a habeas corpus
action the portion of claim three asserting a state law claim. Pending before the Court is
the remaining portion of claim three in which Mr. Redwine challenges his four-year
prison sentence imposed following the second revocation as illegal.
II. Analysis
A. Standard of Review on the Merits
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.
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28 U.S.C. § 2254(d). Mr. Redwine bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
A claim may be adjudicated on the merits in state court even in the absence of a
statement of reasons by the state court for rejecting the claim. Harrington v. Richter,
131 S. Ct. 770, 784-85 (2011). In particular, “determining whether a state court’s
decision resulted from an unreasonable legal or factual conclusion does not require that
there be an opinion from the state court explaining the state court’s reasoning.” Id. at
784. Thus, “[w]hen a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law procedural principles to the
contrary.” Id. at 784-85. Even “[w]here a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief.” Id. at 784. In other words, the Court
“owe[s] 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, the Court
“must uphold the state court’s summary decision unless [the Court’s] independent
review of the record and pertinent federal law persuades [the Court] that its 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.
Although Richter concerned a state-court order that did not address any of the
defendant’s claims, its presumption is applicable when a state-court opinion addresses
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some but not all of those claims. Johnson v. Williams, 133 S. Ct. 1088, 1094-98 (2013).
For purposes of § 2254(d), when a state court rules against a defendant in an opinion
that rejects some of the defendant’s claims but does not expressly address a federal
claim, a federal habeas court must presume, subject to rebuttal, that the federal claim
was adjudicated on the merits. Id. at 1094-96. Federal habeas courts should not
assume that any unaddressed federal claim simply was overlooked because a state
court does not uniformly discuss separately every claim referenced by a defendant. Id.
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
Mr. Redwine 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 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
7
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. 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.
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,
8
[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching 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.
Richter, 131 S. Ct. at 786 (citation 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. 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, 131 S. Ct. at 786 (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, 131 S. Ct. 786-87.
The Court reviews claims asserting factual errors 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 the Court to grant a writ of habeas corpus only if the relevant state
9
court decision was based on an unreasonable determination of the facts in light of the
evidence presented to the state court. Pursuant to § 2254(e)(1), the Court must
presume that the state court’s factual determinations are correct and Mr. Redwine bears
the burden of rebutting the presumption by clear and convincing evidence. “The
standard is demanding but not insatiable . . . [because] ‘[d]eference does not by
definition preclude relief.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting MillerEl v. Cockrell, 537 U.S. 322, 340 (2003)).
If a claim was not adjudicated on the merits in state court, and if the claim also is
not procedurally barred, the Court must review the claim de novo and the deferential
standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th
Cir. 2004).
III. Claim Three
In the remaining portion of claim three, Mr. Redwine contends that the four-year
prison sentence imposed following the second revocation is illegal. ECF No. 14 at 8.
As previously stated, Mr. Redwine initially was sentenced to probation. When
that probation was revoked the first time, the trial court imposed a ninety-day jail
sentence, and directed Mr. Redwine’s counsel to get him into an inpatient treatment
program and return him to the court before expiration of the jail term. ECF No. 14 at 5.
However, Mr. Redwine contends defense counsel failed either to secure his admission
to inpatient treatment or return him to court before, or after, the jail term expired. ECF
No. 14 at 7. He then was released from jail, but failed to report to the probation
department. Id. He claims that at or near the time of his release, the Denver County
Sheriff failed to inform him of his obligation to report to probation. Moreover, he argues,
10
neither the Denver probation department nor the Denver Jail records informed him of
such an obligation. ECF No. 14 at 8. Thus, he believed he was released from jail “time
served,” id., and had no obligation to report to, or comply with, probation. He
subsequently was arrested, and suffered the second revocation and prison sentence
challenged here. ECF No. 14 at 12.
Respondents argue that claim three asserts a claim of insufficient evidence, i.e.,
that the evidence fails to support a conclusion, by a preponderance of evidence, that
Mr. Redwine violated probation after his release from the ninety-day jail term. On
appeal from the second revocation, Mr. Redwine argued a Fourteenth Amendment due
process violation resulting from the failure of the state's evidence to establish a
probation violation by a preponderance of the evidence. ECF No. 8, ex. G (opening
brief) at 14-18. He specifically argued that the Fourteenth Amendment requires a
showing that a probationer "unreasonably or willfully failed to comply with the terms of
his probation before the state can revoke probation." ECF No. 8, ex. G at 16. On
certiorari review, he raised the same argument. ECF No. 8, ex. C (petition for writ of
certiorari) at 10.
The minimum requirements of due process at a parole or probation revocation
hearing include: (1) written notice of the claimed violations of probation or parole; (2)
disclosure to the probationer or parolee of the evidence against him or her; (3) an
opportunity to be heard in person and to present witnesses and documentary evidence;
(4) the right to confront and cross-examine adverse witnesses; (5) a neutral and
detached hearing body; and (6) a written statement by the factfinders as to the evidence
relied on and the reasons for revoking probation or parole. Gagnon v. Scarpelli, 411
11
U.S. 778, 786 (1973) (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). The
principles of fundamental justice and fairness afford a probationer or parolee a
reasonable opportunity to explain away the accusation of a probation or parole violation.
See Morrissey, 408 U.S. at 484, n.12.
The Colorado Court of Appeals, in addressing Mr. Redwine’s appeal from the
trial court’s order revoking his probation and the sentence remanding him to DOC
custody, determined as follows:
Redwine first contends that the evidence did not
establish that he violated his probation by a preponderance
of the evidence because a police officer told him that a
computer did not show he was on probation and he relied on
the officer’s representation. We disagree.
“Whether probation has been violated is a question of
fact; whether probation should be revoked, once a violation
is found, is within the discretion of the trial court.” People v.
Ickler, 877 P.2d 863, 866 (Colo. 1994); see also People v.
Elder, 36 P.3d 172, 173 (Colo. App. 2001); People v.
Colabello, 948 P.2d 77, 79 (Colo. App. 1997). We will not
disturb the trial court’s decision to revoke probation unless
the decision is “against the manifest weight of the evidence.”
Elder, 36 P.3d at 174.
Because probation is a privilege, not a right, a court
may revoke probation if a probationer violates any condition
of a probation order. See Ickler, 877 P.2d at 866; Elder, 36
P.3d at 173. The prosecution has the burden of establishing
a violation of a condition of probation by a preponderance of
the evidence. See § 16-11-206(3), C.R.S. 2011; Ickler, 877
P.2d at 866. “The preponderance standard requires the fact
finder to determine whether the existence of a contested fact
is more probable than its nonexistence.” People v. Gay, 24
P.3d 624, 627 (Colo. App. 2000). The court need not find
that a defendant “willfully or unreasonably” failed to comply
with any terms of probation other than payment of
restitution.” Colabello, 948 P.2d at 80.
The trial court is in the best position to assess the
12
credibility of witnesses and weigh the evidence. See People
v. Trujillo, 189 Colo. 206, 209, 539 P.2d 1234, 1236 (1975).
Thus, a court’s finding that the probationer violated his
probation “will not be disturbed merely because there is a
conflict in the evidence.” Id.
Here, the evidence in the record supports the trial
court’s conclusion that Redwine violated the terms of his
probation. At the revocation hearing, Redwine’s probation
officer testified that, since the date he had filed the
complaint, Redwine had pleaded guilty in the Denver County
Court to possession of drug paraphernalia. The probation
officer also testified that he had never seen Redwine
because Redwine had not reported to probation and had not
signed the terms and conditions of his probation.
Redwine testified that, when he was released from
jail, he told the officer that he “was supposed to be still on
probation” but that the officer told him the computer showed
his “time [had] expired.” However, Redwine responded,
“Yes,” when asked if it was clear to him that the court had
granted him probation.
When his counsel inquired whether he “was under the
impression that [he] needed to go to [the drug treatment
facility]” when he was released from jail, Redwine
responded, “No. No, no, no. I was supposed to be released
. . . to probation.” Redwine further testified that “as long as
the computer was saying that, I went along with it, I let an
error be an error.”
The court found that Redwine’s testimony that he
thought his probation “just went away” did not “make sense,”
that it was not the first time Redwine had been on probation
in this case, and that he had “some familiarity with the
courtroom and the probation process” based on his record.
The court further found that Redwine “admitted to violating
the terms and condition[s] of [his] probation” and that the
“failure to report to the probation [department] in and of itself
is a violation.”
Because its findings are supported by the evidence in
the record, we conclude that the court did not abuse its
discretion when it found that there was a violation and
revoked Redwine’s probation.
13
ECF No. 8, ex. D at 4-7.
The state court’s factual findings are presumed correct in this proceeding and Mr.
Redwine has not rebutted those findings with any clear and convincing evidence. The
state appellate court reasonably concluded that sufficient evidence supported the trial
court’s decision to revoke probation, including Mr. Redwine’s own admission that he
violated the terms of his probation. Mr. Redwine had a reasonable opportunity to
explain away the probation violation at his revocation hearing, see Morrissey, 408 U.S.
at 484, n.12, and does not argue that the minimum requirements of due process at his
revocation hearing were not met. Id. at 489; see also Gagnon, 411 U.S. at 786. Thus,
the principles of fundamental justice and fairness were satisfied because Mr. Redwine
received the process to which he was due under state law. Based on my review of the
record, as supplemented, I do not find that the state appellate court’s resolution of Mr.
Redwine’s Fourteenth Amendment due process claim, even though the state appeals
court did not address the Fourteenth Amendment argument, see Johnson, 133 S. Ct. at
1094-98, was contrary to controlling Supreme Court law.
IV. Conclusion
For the reasons stated above, habeas corpus relief will be denied.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and therefore in forma pauperis
status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). If Mr. Redwine files a notice of appeal he also must pay the full
$455.00 appellate filing fee or file a motion to proceed in forma pauperis in the United
States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed.
14
R. App. P. 24.
Accordingly, it is
ORDERED that the habeas corpus application is denied, and the action is
dismissed with prejudice. It is
FURTHER ORDERED that each party shall bear his own costs and attorney's
fees. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant, Terrence S. Redwine, has not made a substantial showing of the denial of a
constitutional right. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this
3rd
day of
May
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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