Cousett v. People of Colorado, The et al

Filing 36

ORDER denying the 8 Amended Application for Writ of Habeas Corpus filed by Preston Cousett. No certificate of appealability will issue because Applicant has not made a substantial showing that jurists of reason would find it debatable whether the jurisdictional and procedural rulings are correct and whether the Application states a valid claim of the denial of a constitutional right. By Judge Raymond P. Moore on 3/19/2015. (tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Raymond P. Moore
Civil Action No. 14-cv-02615-RM
PRESTON COUSETT,
Applicant,
v.
PAM PLOUGHE, Warden, Skyline Corr. Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING § 2254 APPLICATION

Applicant, Preston Cousett, is in the custody of the Colorado Department of
Corrections (CDOC) and is incarcerated at the Skyline Correctional Center in Canón
City, Colorado. He has filed an Amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 8) challenging the validity of his convictions and
sentence imposed in El Paso County, Colorado, District Court Case No. 04CR1331.
Respondents have filed an Answer (ECF No. 32), and Applicant was afforded the
opportunity to file a Reply. Having considered the same, along with the state court
record, the Court will deny the Application.
I. BACKGROUND
In November 2007, Applicant was convicted by a state district court judge in El
Paso County District Court Case No. 06CR313 of numerous counts of aggravated
robbery, attempted robbery, menacing, and theft, as well as several crime of violence

counts. (ECF No. 16-1, at 6-20). He was sentenced to an aggregate prison term of 20
years with the CDOC. (Id. at 26-27).
Applicant’s convictions and sentences were affirmed on direct appeal in People
v. Cousett, No. 08CA0356 (Colo. App. Sept. 22, 2011) (unpublished) (ECF No. 16-7).
The Colorado Supreme Court denied Applicant’s petition for certiorari review on
February 27, 2012.
On August 13, 2012, Applicant filed a state post-conviction motion for sentence
reconsideration and reduction of mandatory sentence. (ECF No. 16-1, at 24). The
state district court denied the motion on August 20, 2012. (Id.). Applicant did not
appeal the order.
On November 13, 2012, Applicant filed a motion for post-conviction relief
pursuant to Colo. Crim. P. Rule 35(c), which was denied summarily by the state district
court on November 20, 2012. (Id. at 24; see also ECF No. 16-4). The Colorado Court
of Appeals affirmed the district court’s order in People v. Cousett, No. 13CA0007, Colo.
App. July 31, 2014) (unpublished) (ECF No. 16-2). Applicant did not seek certiorari
review in the Colorado Supreme Court.
Applicant initiated a § 2254 proceeding in this Court on September 22, 2014.
The operative pleading is the Amended Application, filed on November 13, 2014 (ECF
No. 8). Although the Amended Application purports to assert five claims, Applicant’s
allegations can be distilled into two claims for relief. Applicant asserts that his
convictions violated the Fourteenth Amendment Due Process Clause and his Fifth
Amendment privilege against self-incrimination because his confession to police

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officers was: (1) coerced; and (2) obtained in violation of his Miranda1 rights, where his
waiver of the right to counsel was not knowing and voluntary.
In the Pre-Answer Response, filed on November 24, 2014 (ECF No. 16),
Respondents conceded that the original Application was timely-filed under the AEDPA
one-year limitation period set forth in 28 U.S.C. § 2244(d). (Id. at 4-7). Respondents
further conceded that Applicant exhausted state court remedies for his first claim. (Id.
at 15). Respondents contended, however, that claim two was unexhausted, and
procedurally barred, because Applicant no longer has a state court remedy available to
him. (Id. at 15-17). In a January 20, 2015 Order, the Court dismissed claim two as
procedurally barred. (ECF No. 29; ECF No. 25, at 7).
The Court addresses the merits of claim one below.
II. LEGAL STANDARDS
A. 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.

1

Miranda v. Arizona, 384 U.S. 436 (1966).

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28 U.S.C. § 2254(d). The applicant bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
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 the
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 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
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 [(10 th Cir. 2006)] (internal
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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 judg ment 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 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 (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 w hether it is possible

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fairminded jurists could disagree that those arguments or theories are inconsistent with
the holding in a prior decision of [the Supreme] Court.” Id. Moreover, “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 federal court to grant a writ of habeas corpus only if the
relevant state 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 the petitioner
bears the burden of rebutting the presumption by clear and convincing evidence. “The
standard is demanding but not insatiable . . . [because] ‘[d]ef erence does not by
definition preclude relief.’” Miller–El v. Dretke, 545 U.S. 231, 240 (2005) (quoting
Miller–El v. Cockrell, 537 U.S. 322, 340 (2003)).

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B. Pro Se Litigant
Applicant is proceeding pro se. The court, therefore, “review[s] his pleadings and
other papers liberally and hold[s] 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). Pro se status does not entitle
Applicant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957
(10th Cir. 2002).
III. ANALYSIS
Applicant contends that the admission at trial of his pre-trial confession to police
officers violated his Fifth Amendment and Fourteenth Amendment due process rights
because the confession was coerced, through threats and promises of leniency. (ECF
No. 8, at 6). He asserts that he only confessed towards the end of the police interview,
when the detective “beg[a]n to use foul language, hit on the table, and arouse[d] violent
emotion making me afraid not to confess.” (Id.).
The Fifth Amendment to the United States Constitution guarantees that “[n]o
person . . . shall be compelled in any criminal case to be a witness against himself.”

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U.S. CONST. amend. V. Further, due process prohibits conviction of a defendant
based, “in whole or in part, upon an involuntary confession.” Jackson v. Denno, 378
U.S. 368, 376 (1964). Incriminating statements obtained by government acts, threats,
or promises that permit the defendant's will to be overborne run afoul of the Fifth
Amendment and are inadmissible at trial as evidence of guilt. Malloy v. Hogan, 378
U.S. 1, 7 (1964). Without more, however, misrepresentations, ruses, and trickery by
questioning authorities do not render an otherwise voluntary confession involuntary.
Frazier v. Cupp, 394 U.S. 731, 739 (1969) (interrogator's misrepresentation to suspect
that accomplice had already confessed did not render suspect's confession coerced).
The determination of whether a defendant’s inculpatory statements are voluntary
requires consideration of the following factors, under a totality-of-the-circumstances
test: (1) the age, intelligence, and education of the defendant; (2) the length of the
detention; (3) the length and nature of the questioning; (4) whether the defendant was
advised of his constitutional rights; and (5) whether the defendant was subjected to
physical punishment. See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); see
also Mincey v. Arizona, 437 U.S. 385 (1978). But, it cannot be said that “a def endant's
mental condition, by itself and apart from its relation to official coercion, should ever
dispose of the inquiry into constitutional “voluntariness.”” Colorado v. Connelly, 479
U.S. 157, 164. See also id. at 167 (holding that “coercive police activity is a necessary
predicate to the finding that a confession is not ‘voluntary’ within the meaning of the
Due Process Clause of the Fourteenth Amendment”).

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A.

Factual background
The following summary of relevant facts is taken from the Colorado Court of

Appeals’ decision on direct appeal of Applicant’s conviction.
Police officers arrested defendant after they received an
anonymous tip related to a series of crimes committed in various area
businesses over a three-month period. Defendant confessed to the
crimes during a videotaped interview. He later moved to suppress his
statements, arguing that they were involuntary and resulted from promises
and threats made by officers during the interrogation. He did not argue a
violation of Miranda v. Arizona, 384 U.S. 436 (1966).
At the hearing on defendant’s motion, he argued that he had
denied involvement in the crimes during the first hour and a half to two
hours of the three-and-a-half hour interview, but that the interrogating
officers’ demeanor changed; the officers were rude, raised their voice, and
made religious references. Defendant further argued that this conduct
rendered his statements involuntary in light of his mental state. As to his
mental state, defendant pointed to a competency evaluation performed
three months after the interview that indicated he suffered from
hallucinations and to his own statements earlier in the interview that “God
is judging him,” and that he saw demons, was being watched, and needed
help. Because the officer told him he would not get help unless he
cooperated and told the truth, defendant claimed his mental state
rendered him unable to voluntarily decide to talk to the officers.
The trial court reviewed the videotaped interview (before the
hearing) and denied the motion after hearing arguments of counsel. The
Court found that there was no police misconduct during the interview and,
therefore, no logical reasons to suppress defendant’s statements. The
court said that although the officers raised their voices during the
interview, that conduct was limited and “fairly minimal” considering the
entire interview. The court observed that the officers did not yell, draw
their weapons, “[g]et into [defendant’s] face,” or make any threats. In
sum, the court found that it was a “professionally done interrogation.” As
for defendant’s demeanor, the court found that he appeared eager to talk
with the officers, repeating that he wanted to talk with them and would not
lie to them.
(ECF No. 16-7, at 3-5).2
2

See also State Court R., 4/30/07 Tr. of Suppression Hearing, at 1-10.

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B. Application of AEDPA standard of review
The Colorado Court of Appeals evaluated Applicant’s claim under a state law
“totality of the circumstances” test similar to the federal standard (ECF No. 16-7, at 5-6),
and rejected the claim on the following grounds:
. . . [W]e have viewed the video of the interview and conclude that
the record supports the trial court’s findings regarding the absence of
police misconduct, the manner in which the officers conducted the
interview, and defendant’s eagerness to talk to the officers. Although one
officer spoke loudly and slapped the table for emphasis, the video shows
that the conduct was indeed “minimal” and “very limited,” as the trial court
found. The record supports the conclusion that the of ficers did not
promise or threaten defendant during the interview rather than
defendant’s contention that his will was overborne by official coercion.
[State case citation omitted]. Therefore, we conclude defendant’s
statements were voluntary, and the trial court properly denied the motion.
(Id. at 6-7).
Although the ultimate question of whether the Applicant’s confession was
voluntary is a legal question, subsidiary issues such as whether the police threatened
the Applicant or made promises of leniency are questions of fact. See U.S. v. Short,
947 F.2d 1445, 1449 (10th Cir.1991).
The state courts’ factual findings that the officers did not promise or threaten
Applicant during the interview are presumed correct and Applicant has not pointed to
any clear and convincing evidence to the contrary. The Court has watched the
videotaped police interview of Applicant.3 The tone of the detectives was calm and
conversational for the first part of the interview, where the Applicant denied any
involvement in a robbery that had occurred the previous day. The detectives suggested

3

State Court R., People’s Ex 43. at trial (DVD of Applicant’s police interview).

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to Applicant that if he was not truthful with them about the robbery, they would advise
the District Attorney’s office that he was a liar, who had shown no remorse for his
crimes. The detectives further told Applicant that this was his only opportunity to
explain his side of the story, and that they could not get him the “help he needs” unless
they knew the truth. Approximately 100 minutes into the interview, one of the
detectives showed Applicant a black ski mask that had been recovered by police
officers from Applicant’s apartment. The ski mask had eye slits cut into it. Applicant
admitted that the ski mask was his and that the only reason that eye slits would have
been cut into it was for the purpose of committing a robbery. At that point, the lead
interviewer’s demeanor changed briefly. He raised his voice, his questions became
more pointed and confrontational, he accused the Applicant of “playing him for a fool,”
used a few mild expletives, and slapped the table once or twice for emphasis. The
detective also told Applicant that witnesses had described him wearing the ski mask
and that the detective had “enough” to file criminal charges against him for aggravated
robbery.4 Applicant then confessed to the robbery, as well as to six other robberies
during the ensuing two hours. After Applicant confessed to the first robbery, the
detectives resumed a conversational tone for the remainder of the interview. Nothing in
the interrogation is indicative of an involuntary confession or error in the state court
conclusions.
The Colorado Court of Appeals’ findings that the detectives did not threaten
Applicant or make him any promises are consistent with the evidence presented in the

4

State Court R., People’s Ex. 43, DVD of Police Interview of Applicant.

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state court proceeding. Moreover, the other Schneckloth factors indicate that the
Applicant’s confession was voluntary. Applicant was provided with food and drink at the
beginning of the interview and was not hand-cuffed. The officers did not injure
Applicant physically or deny him physical necessities. In addition, Applicant was lucid
and responsive throughout the interview. Nothing that occurred during the interview
suggests that Applicant’s level of intelligence or education rendered his statements to
the police involuntary, or that he suffered from a mental impairment that was exploited
by the detectives. Further, the lead detective told Applicant at least twice during the
interview that Applicant did not have to talk to him and could stop talking at any time,
but Applicant never stated or gave indication that he wanted to conclude the interview.
And, finally, Applicant was given a Miranda advisement at the beginning of the
interview. He indicated he understood his rights and then waived them. Applicant did
not challenge the validity of that waiver in his direct appeal proceeding.
Under the totality of the circumstances of the police interview, the Court finds
that the Colorado Court of Appeals’ conclusion that Applicant’s confession was
voluntary, and that his will was not overborne by the conduct of the police, was not
contrary to, or an unreasonable application of Supreme Court law. The facts of this
case are not on point with other cases in which the Supreme Court has found that
coercive police conduct invalidated a defendant’s confession. See Connelly, 479 U.S.
at 163-164 at n. 1 (collecting cases where circumstances warranted Court’s conclusion
that police coercion was present). Moreover, even if the Court were to find fault with
some of the detectives’ conduct during the interview, it cannot be said that the state

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appellate court’s determination 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 . As a result, Applicant cannot is not
entitled to federal habeas relief.
IV. ORDERS
Accordingly, it is ORDERED:
1.

The Amended Application For a Writ of Habeas Corpus Pursuant to 28

U.S.C. § 2254 (ECF No. 8) is DENIED and this case is DISMISSED on the m erits.
2.

No certificate of appealability will issue because Applicant has not made a

substantial showing that jurists of reason would find it debatable whether the
jurisdictional and procedural rulings are correct and whether the Application states a
valid claim of the denial of a constitutional right.
Dated March 19, 2015, in Denver, Colorado.
BY THE COURT:

RAYMOND P. MOORE
United States District Judge

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