Nelson v. Trani et al

Filing 32

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS: the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [#1] filed by Applicant Harvey Nelson is DENIED; this case is DISMISSED WITH PREJUDICE; a certificate of appealability SHAL L NOT ISSUE under 28 U.S.C. § 2253(c) leave to proceed in forma pauperis on appeal is DENIED without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. By Judge Robert E. Blackburn on 9/2/15. (kfinn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-02151-REB
HARVEY NELSON,
Applicant,
v.
TRAVIS TRANI, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
Blackburn, J.
This matter is before me on the pro se Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (“the Application”) [#1]1 filed by Applicant
Harvey Nelson. Respondents filed an Answer to Application for Writ of Habeas
Corpus (“the Answer”) [#28], and Mr. Nelson filed a Reply to Answer to Application
for Writ of Habeas Corpus (“the Reply”) [#30].
I must construe and have construed the Application and other papers filed by Mr.
Nelson liberally because he is not represented by an attorney. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 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.

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[#1] is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s electronic case filing and management system (CM/ECF). I use this convention
throughout this order.

After reviewing the pertinent portions of the record in this case, including the
Application, the Answer, the Reply, and the state court record, I conclude that the
Application should be denied and the case dismissed with prejudice.
I. BACKGROUND
Mr. Nelson is challenging the validity of his conviction and sentence in El Paso
County District Court case number 06CR542. He was convicted of a number of drug
offenses and found to be an habitual criminal. He is serving a sentence of seventy-two
years in state prison.
On direct appeal Mr. Nelson argued that “the trial court erred in denying his
motion to suppress evidence based on police officers’ allegedly unconstitutional entry
and search of his residence.” People v. Nelson, 296 P.3d 177, 181 (Colo. App. 2012).
He specifically claimed his Fourth Amendment rights were violated. (See [#13-2].) The
relevant factual background was described by the Colorado Court of Appeals as follows:
A. Evidence
The following evidence was presented at the
suppression hearing. On January 27, 2006, police officers
went to an apartment building after receiving a tip from an
anonymous informant that narcotics distribution was
occurring in apartment 114. Officer Andrews spoke to the
apartment manager, who informed him that a man who was
not named on the lease was residing in the unit and had paid
the rent.
Officer Andrews, who was in police uniform, was
assisted by Officer Eberhart, who was wearing plain clothes.
The officers wanted to conduct a “knock and talk” with the
apartment’s occupants to gather more information and seek
consent to search the apartment. Therefore, they
determined that Officer Eberhart would knock on the door,
while Officer Andrews stayed out of sight.
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Officer Eberhart knocked on the apartment door,
waited approximately one minute, and knocked again. A
voice from inside asked who it was, and Officer Eberhart
responded, “Maintenance.” Nelson opened the door and
stood “directly in front of” it. Officer Eberhart was able to see
another man inside the apartment. At that point, Officer
Andrews walked up behind Officer Eberhart, and the other
man inside ran toward the back of the apartment. Officer
Andrews entered the apartment in pursuit of the man, while
Officer Eberhart pulled Nelson to the ground in the doorway
to keep him from interfering with Officer Andrews.
Officer Andrews testified that, when Nelson opened
the door, he saw a glass pipe commonly used for smoking
marijuana on a table inside the apartment. When he noticed
the other man running, he assumed that he was fleeing,
destroying evidence, or trying to obtain a weapon. Officer
Andrews chased him out the back door of the apartment,
where the man dropped a knife. The officer then
apprehended him, recovered packets of methamphetamine
from his pockets, and brought him back inside the
apartment.
B. Factual Findings and Legal Conclusions
The trial court first determined that Nelson had
standing to challenge the search of the apartment because
he was in the apartment with the written lessee’s consent.
The court also determined that the officers’ decision
to use a ruse to get Nelson to open the door was not
improper and did not violate the Fourth Amendment, as the
officers “merely used a false statement at the door to have
the door opened.”
The court next concluded that the warrantless entry
into the apartment was constitutional. The court found that
the glass pipe was in plain view and gave the officers
probable cause to believe evidence of a crime was inside.
The other man’s flight toward the back of the apartment and
out of Officer Andrews’s view amounted to exigent
circumstances justifying the entry “to apprehend the suspect
and to ensure that no weapon was used, or about to be
used, and to preserve the evidence.”
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Nelson, 296 P.3d at 181-82.
The Colorado Court of Appeals agreed generally with the trial court’s findings but
remanded the case for further proceedings. The appellate court first determined the
warrantless entry into Mr. Nelson’s apartment did not violate the Fourth Amendment
because the use of the “maintenance” ruse to get him to open the apartment door was
not illegal, and the subsequent warrantless entry was justified by exigent circumstances
and probable cause. See id. at 182-86. Concerning the search of the apartment, the
Colorado Court of Appeals agreed with Mr. Nelson that his girlfriend’s consent to
search, which was given after the initial warrantless entry, was not valid as to him. See
id. at 186. The Colorado Court of Appeals next determined that a search warrant
obtained by the police after the warrantless entry and consent search was supported by
sufficient probable cause even without consideration of the evidence unlawfully
discovered during the consent search. See id. at 186-187. However, the Colorado
Court of Appeals remanded for further proceedings “to determine whether the
independent source exception to the exclusionary rule permitted the recovery and use
at trial of the items seized pursuant to the warrant, despite the prior illegality of the
consent search.” Id. at 188. On January 14, 2013, the Colorado Supreme Court denied
Mr. Nelson’s petition for writ of certiorari. (See [#13-6].)
On August 9, 2013, the trial court held an evidentiary hearing to consider the
issue for which the case was remanded by the Colorado Court of Appeals. (See [#13-1]
at 11.) On September 11, 2013, the trial court entered an order rejecting Mr. Nelson’s
arguments. (See id.) Mr. Nelson did not appeal.

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Mr. Nelson asserts in the Application the same claims he raised on direct appeal.
He specifically contends his Fourth Amendment rights were violated because the knockand-talk contact was not based on consent (claim one), there was no probable cause
(claim two), the plain view doctrine does not apply (claim three), the trial court relied on
the wrong standard in analyzing whether the glass pipe was drug paraphernalia (claim
four), there were no exigent circumstances (claim five), and the independent source
doctrine does not apply (claim six).
II. ANALYSIS
Respondents argue that Mr. Nelson’s Fourth Amendment claims are not
cognizable in this habeas corpus action based on the Supreme Court’s decision in
Stone v. Powell, 428 U.S. 465 (1976). Under Stone, “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.” Stone, 428 U.S. at 494
(footnotes omitted); see also Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir. 1992). A
full and fair opportunity to litigate a Fourth Amendment claim in state court includes the
procedural opportunity to litigate the claim as well as a full and fair evidentiary hearing.
See Miranda, 967 F.2d at 401. A full and fair opportunity to litigate also “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).
Here, it is Mr. Nelson’s burden to demonstrate he was denied a full and fair opportunity
to litigate his Fourth Amendment claims in state court. See Young v. Conway, 715

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F.3d 79, 92 (2d Cir. 2013) (Raggi, Circuit J., dissenting from denial of reh’g en banc);
Peoples v. Campbell, 377 F.3d 1208, 1224 (11th Cir. 2004); Sanna v. Dipaolo, 265
F.3d 1, 8 (1st Cir. 2001); Woolery v. Arave, 8 F.3d 1325, 1328 (9th Cir. 1993); Davis v.
Blackburn, 803 F.2d 1371, 1372 (5th Cir. 1986) (per curiam); Doleman v. Muncy, 579
F.2d 1258, 1266 (4th Cir. 1978).
Mr. Nelson does not challenge the adequacy of the evidentiary hearings on his
motion to suppress, and he does not dispute the fact that he had a procedural
opportunity to litigate his Fourth Amendment claims in the Colorado courts. In fact, as
shown above, Mr. Nelson’s Fourth Amendment claims were the subject of extensive
litigation in the state court proceedings: he raised the Fourth Amendment issues in the
trial court prior to trial; the trial court denied his motion to suppress following an
evidentiary hearing on that motion; the Fourth Amendment issues were raised and
addressed on direct appeal; and the trial court held another evidentiary hearing on
remand from the Colorado Court of Appeals. In Smallwood v. Gibson, 191 F.3d 1257,
1265 (10th Cir. 1999), it was sufficient that petitioner filed a motion to suppress, trial
counsel adequately apprised the trial court of the factual basis for the Fourth
Amendment claim, appellate counsel presented the issue on direct appeal, and the
state courts “thoughtfully considered the facts underlying [the] Fourth Amendment
claim” but rejected it on the merits by applying appropriate Supreme Court precedents.
Mr. Nelson cannot demonstrate in this action that he was denied a similar opportunity.
With respect to colorable application of the correct standards, Mr. Nelson refers
in his Reply to the Tenth Circuit’s statement that “[d]eference to state court

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consideration of Fourth Amendment claims does not require federal blindness to a state
court’s wilful refusal to apply the appropriate constitutional standard.” Gamble, 583
F.2d at 1165. However, Mr. Nelson does not identify any appropriate constitutional
standards relevant to his claims that the state court refused to apply. Instead, it is
apparent that he merely disagrees with the state court’s application of the correct Fourth
Amendment standards and the ultimate conclusion that his Fourth Amendment rights
were not violated. Such disagreement does not demonstrate the absence of a full and
fair opportunity to litigate his Fourth Amendment claims. See Matthews v. Workman,
577 F.3d 1175, 1194 (10th Cir. 2009) (rejecting petitioner’s argument that state court
misapplied Fourth Amendment doctrine in reaching wrong conclusions about probable
cause because that was not the proper question under Stone); see also Pickens v.
Workman, 373 F. App’x 847, 850 (10th Cir. 2010) (stating that “[t]he opportunity for full
and fair litigation is not defeated merely because a participant might prefer a different
outcome”). To the extent Mr. Nelson disagrees with the factual determinations made by
the state courts, he fails to present clear and convincing evidence to overcome the
presumption of correctness that attaches to those factual findings. See 28 U.S.C. §
2254(e)(1).
For all of these reasons I find and conclude that Mr. Nelson had a procedural
opportunity to litigate his Fourth Amendment claim as well as a full and fair evidentiary
hearing and that the Colorado courts made “at least colorable application of the correct
Fourth Amendment constitutional standards.” Gamble, 583 F.2d at 1165. As a result,
consideration of the merits of his Fourth Amendment claims is barred by Stone v.

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Powell and Mr. Nelson is not entitled to relief in this action.
III. COA & OFP
Under 28 U.S.C. § 2253(c)(2), this Court may issue a certificate of appealability
“only if the applicant has made a substantial showing of the denial of a constitutional
right.” Such a showing is made only when a prisoner demonstrates that jurists of
reason would find it debatable that a constitutional violation occurred, and that the
district court erred in its resolution. Mr. Nelson has not made a substantial showing of
the denial of a constitutional right. Therefore, a certificate of appealability is denied.
Under 28 U.S.C. § 1915(a)(3), the court certifies 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. Nelson files a notice of appeal, he also must pay the full 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. R. App. P. 24.
IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2254 [#1] filed by Applicant Harvey Nelson is DENIED;
2. That this case is DISMISSED WITH PREJUDICE; and
3. That a certificate of appealability SHALL NOT ISSUE under 28 U.S.C. §
2253(c); and
4. That leave to proceed in forma pauperis on appeal is DENIED without

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prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal
in the United States Court of Appeals for the Tenth Circuit
Dated September 2, 2015, at Denver, Colorado.
BY THE COURT:

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