King v. Raemisch et al

Filing 18

ORDER dismissing this action with prejudice by Judge Lewis T. Babcock on 5/1/15. There is no basis on which to issue a certificate of appealability. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03204-LTB
JEFFERY DAVID KING,
Applicant,
v.
RICK RAEMISCH, Executive Director, Colorado Department of Corrections, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO DISMISS

Applicant, Jeffrey David King, a state prisoner in the custody of the Colorado
Department of Corrections, currently is incarcerated at the Arrowhead Correctional Center in
Canon City, Colorado. Applicant initiated this action by filing pro se an Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2254.
On January 6, 2015, Magistrate Judge Gordon P. Gallagher directed Respondents to file a
Response. Respondents submitted a Response on February 4, 2015 (ECF No. 13). Applicant
requested and received two extensions within which to file a reply, the last of which expired on
on March 31, 2015 (ECF No. 17). No reply has been filed.
The Court must construe the Application liberally because Applicant is not represented
by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). However, the Court does not “assume the role of advocate for the
pro se litigant.” See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss
the habeas corpus action.

A. Relevant Factual and Procedural History
In two separate indictments, the State of Colorado charged Mr. King with one count
each, per indictment, of: identity theft under CRS § 18-5-902(1)(c) (a Class 4 felony); forgery
under CRS § 8-5-102(1)(e) (a Class 5 felony); and possession of a forged instrument under CRS
§ 18-5-105 (a Class 6 felony) at 2011CR52 and 2011CR53 in Logan County. The State alleged
that Mr. King forged and filed forms to terminate his responsibility to pay restitution in previous
criminal cases by falsely representing that Attorney General John Suthers completed and signed
the forms. King, having waived his right to counsel, entered a nolo contendere plea to one count
of forgery in case number 11CR52, with a stipulated sentence of two years in prison. In
exchange, the
prosecution dismissed the other two counts in case number 11CR52 and all of the counts in case
number 11CR53.
Mr. King timely filed a motion to withdraw his plea under Colo. R. Crim. P. 35(c). On
his Form, he checked the box indicating that his basis for withdrawing his plea was newly
discovered evidence. In this regard, he asserted that he had recently learned that section C.R.S. §
18-5-105 prohibits convictions for both forgery and possession of a forged instrument based on
the same instrument. He further contended that had he known about section 18-5-105 when he
entered his plea, it is unlikely he would have taken the plea because he could prove that he did
not forge any documents.
The district court summarily denied King's motion finding that King waived any
challenge to the charges in the information or evidentiary support for those charges when he
entered his plea and King's recent discovery that two of the charges in the information would
merge if he was convicted of both after a trial did not constitute a recent discovery of material

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fact that would entitle him to relief. (ECF No. 13-7, p.2). Mr. King timely filed a Notice of
Appeal asserting that his plea should be withdrawn because it was not voluntarily and knowingly
made because he was led to believe that he could be convicted of both forgery and possession of
a forged instrument had he taken the case to trial. On March 13, 2014, the Colorado Court of
Appeals (CCA) affirmed the order of the District Court denying Applicant relief. On September
87, 2014, the Colorado Supreme Court (CSC) denied Applicant’s petition for writ of certiorari
(ECF No. 13-3).
Applicant filed the instant action on November 25, 2014 wherein he raises the following
claim.
Defendant's Plea was not voluntary [sic] made. Defendant pled "No Contest"
to Forgery, not because he was guilty of Forgery, but because he felt a jury would
see that since Defendant was allegedly in possession of an allegedly forged
document, he would be found guilty of both Forgery and Possession of a Forged
Document. Had defendant be [sic] made aware of the merger statute which states,
"A person may not be convicted of both forgery and criminal possession of a forged
instrument with respect to the same written instrument,” 18-5-108 C.R.S. Merger of
offenses; he would of [sic] elected to go to trial because he could prove that he did
not forge any document, even though he does not have to.
ECF No. 1, p. 5.
B. Procedural Requirements for Federal Habeas Corpus Review
Before this Court can address the merits of Applicant’s claim, it is necessary to examine
whether this Application fulfills the applicable procedural requirements under the federal habeas
corpus statute.
1.

Exhaustion Requirement
The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state

prisoner to exhaust available state court remedies before seeking federal habeas corpus relief.
To comply with the exhaustion requirement, a state prisoner first must have "fairly presented"

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his constitutional and federal law issues to the state courts through direct appeal, collateral
review, state habeas proceedings, mandamus proceedings, or other available procedures for
judicial review in accordance with the state’s procedural requirements. See, e.g., Castille v.
Peoples, 489 U.S. 346, 351 (1989). To "fairly present" a claim, a petitioner must present a
federal claim's factual and legal substance to the state courts in a manner that puts them on notice
that a federal claim is being asserted. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (per
curiam); Picard v. Connor, 404 U.S. 270, 277-78 (1971). Even if a state court fails to consider
the constitutional claim, it is still exhausted as long as the state court had the opportunity to
address it.
In addition, in order to exhaust his claims, a habeas corpus petitioner must "properly
present" his claims to the state courts. In this regard, a petitioner must invoke "one complete
round" of the applicable State's appellate review process, thereby giving the courts of that State
"one full opportunity" to resolve any issues relevant to such claims. O'Sullivan v. Boerckel, 526
U.S. 838, 845(1999). A state prisoner bringing a federal habeas corpus action bears the burden
of showing that he has exhausted all available state remedies. See Miranda v. Cooper, 967 F.2d
392, 398 (10th Cir. 1992).
2.

Procedural Default
Beyond questions of exhaustion, a federal court may be precluded from reviewing claims

under the “procedural default doctrine.” Gray v. Netherland, 518 U.S. 152, 162 (1996);
Coleman v. Thompson, 501 U.S. 722, 732 (1991). Like the exhaustion requirement, the
procedural default doctrine was developed to promote our dual judicial system and, in turn, it is
based upon the “independent and adequate state law grounds” doctrine.
It is well established that federal courts will not review questions of federal
law presented in a habeas petition when the state court's decision rests upon a
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state-law ground that is independent of the federal question and adequate to support
the judgment. In the context of federal habeas proceedings, the independent and
adequate state ground doctrine is designed to ensure that the States' interest in
correcting their own mistakes is respected in all federal habeas cases. When a
petitioner fails to properly raise his federal claims in state court, he deprives the State
of an opportunity to address those claims in the first instance and frustrates the
State's ability to honor his constitutional rights. Therefore, consistent with the
longstanding requirement that habeas petitioners must exhaust available state
remedies before seeking relief in federal court, we have held that when a petitioner
fails to raise his federal claims in compliance with relevant state procedural rules, the
state court's refusal to adjudicate the claim ordinarily qualifies as an independent and
adequate state ground for denying federal review.
Cone v. Bell, 556 U.S. 449, 465 (2009) (internal quotations and citations omitted).
“A state procedural ground is independent if it relies on state law, rather than federal law,
as the basis for the decision . . . . For the state ground to be adequate, it must be strictly or
regularly followed and applied evenhandedly to all similar claims.” Hickman v. Spears, 160
F.3d 1269, 1271 (10th Cir. 1998) (internal quotations and citations omitted). See also Dugger v.
Adams, 489 U.S. 401, 410, n. 6 (1989) (holding that a state rule is adequate to preclude federal
habeas corpus review if it is applied by state courts in “the vast majority of cases.”).
Moreover, if a habeas applicant “failed to exhaust state remedies and the court to which
the petitioner would be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred ... there is a procedural default.”
Coleman, 501 U.S. 722 at 735 n.1; see also Harris v. Reed, 489 U.S. 255, 269–70 (1989);
Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (“ ‘Anticipatory procedural bar’
occurs when the federal courts apply procedural bar to an unexhausted claim that would be
procedurally barred under state law if the petitioner returned to state court to exhaust it.”)
(citation omitted). Thus, if it is obvious that an unexhausted claim would be procedurally barred
in state court, the claim is subject to an anticipatory procedural bar and is procedurally barred
from federal habeas review.
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An applicant whose constitutional claims have not been addressed on the merits due to
procedural default can overcome the default, thereby allowing federal court review, if he or she
can demonstrate either: 1) “cause” for the default and “actual prejudice” as a result of the
alleged violation of federal law; or 2) failure to consider the claims will result in a “fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750.
C. Analysis
It is clear that Mr. King properly presented a challenge to his guilty plea to the state
courts because he raised it in his Rule 35 motion and presented it to all three levels of the
Colorado state courts. Notwithstanding, Respondents argue that his claim has been procedurally
defaulted. In this regard, Respondents admit that in his opening brief in the CCA, Applicant
fairly presented a claim that his guilty plea was constitutionally involuntary because he was
“coerced into believing” that the forgery and possession counts would be separate convictions.
In reviewing this claim, the CCA observed that applicant’s Rule 35(c) motion “did not allege
that his plea was constitutionally infirm.” Instead, the CCA observed, applicant had checked a
box on the Rule 35(c) form stating that the grounds for relief was newly-discovered evidence,
not that his plea was unconstitutionally coerced. The CCA further observed that “[n]ormally, we
decline to address this argument raised for the first time on appeal.” (ECF No. 13-5, p. 5). In the
next sentence, however, the CCA went on to state “[e]ven if we were to address this argument
and liberally construe [applicant’s] postconviction motion as stating such a claim, based on the
record, which included his written plea agreement and a transcript of the providency hearing, we
conclude that his plea complied with Crim. P. 11(b), and therefore, is constitutional.” The Court
then undertook a lengthy analysis of the relevant facts in concluding that Applicant’s guilty plea
was voluntarily made.

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The Supreme Court has noted that “[t]he question whether a state court's reference to
state law constitutes an adequate and independent state ground for its judgment may be rendered
difficult by ambiguity in the state court's opinion.” Harris v. Reed, 489 U.S. 255, 261, 265
(1983). “[I]f it fairly appears that the state court rested its decision primarily on federal law, this
Court may reach the federal question on review unless the state court's opinion contains a plain
statement that its decision rests upon adequate and independent state grounds.” Id. (citing
Michigan v. Long, 463 U.S. 1032, 1042 (1983)).
Here, it is not at all clear that the CCA expressly rejected applicant’s appellate claim by
applying its rule against addressing appellate claims not presented below. The Court’s use of the
term “normally” suggests otherwise. See Pike v. Guarino, 492 F.3d 61, 74 (1st Cir. 2007) (“a
federal court always must be chary about reaching a conclusion, based upon a speculative
analysis of what a state court might do, that a particular claim is procedurally foreclosed.”);
Lines v. Larkin, 208 F.3d 153, 165 (3d Cir. 2000) (noting that “federal courts should be most
cautious before reaching a conclusion dependent upon an intricate analysis of state law that a
claim is procedurally barred.”). Moreover, in his petition for certiorari to the CSC, Applicant
explained that “[t]he [Rule 35] form does not explicitly have an option designating that the
defendant is seeking to withdraw a plea because he or she did not enter it knowingly or
voluntarily.” ECF No. 13-6, p.12. Applicant argued that he had included the factual basis for
his assertion and that the Court should have addressed his claim as one of attacking the
voluntariness of his plea.
What is clear from the record is that the CCA did evaluate the factual basis upon which
the voluntariness of the guilty plea claim is premised. With that in mind, it is difficult to imagine
how the interests of comity will be disserved by permitting a federal court, taking cognizance of

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those factual findings, to resolve the claim on its merits. Moreover, the interests of judicial
economy also will be served by addressing the merits of the claim here and now. Moreover, this
Court may review this claim on the merits under the authority set forth in 28 U.S.C. §
2254(b)(2), which provides that a federal court may deny a petitioner's claim on the merits
notwithstanding his failure to comply with state-law requirements. Accordingly, the Court will
address the merits of Applicant’s guilty plea claim.
D. Standard of Review
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.
28 U.S.C. § 2254(d). Mr. King 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 Mr. King 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
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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
[(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.
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,
[E]valuating whether a rule application was unreasonable requires considering the
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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, 562 U.S. at 101 (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, 562 U.S. at
102 (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, 562 U.S. at 103.
This deference was explained in Renico v. Lett, 599 U.S. 766 (2010) where the Supreme
Court reviewed the Court of Appeals for the Sixth Circuit's grant of a writ of habeas corpus to a
defendant who was retried for murder following the trial judge's grant of a mistrial after the jury
had deliberated for at least four hours following a relatively short, and far from complex, trial.
The Michigan Supreme Court had concluded there was no violation of the Double Jeopardy
Clause because the trial court exercised its sound discretion. The federal district court granted a

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writ of habeas corpus and the Sixth Circuit affirmed, both concluding that the trial court's
declaration of a mistrial constituted an abuse of discretion because there was no manifest
necessity. The Supreme Court reversed.
It is important at the outset to define the question before us. That question
is not whether the trial judge should have declared a mistrial. It is not even whether
it was an abuse of discretion for her to have done so-the applicable standard on direct
review. The question under AEDPA is instead whether the determination of the
Michigan Supreme Court that there was no abuse of discretion was "an unreasonable
application of ... clearly established Federal law." § 2254(d)(1).
Lett, 559 U.S. at 772-73. The Supreme Court further instructed:
It is not necessary for us to decide whether the Michigan Supreme Court's
decision-or, for that matter, the trial judge's declaration of a mistrial-was right or
wrong. The latter question, in particular, is a close one. As Lett points out, at a
hearing before the Michigan Court of Appeals, the state prosecutor expressed the
view that the judge had in fact erred in dismissing the jury and declaring a mistrial.
The Michigan Supreme Court declined to accept this confession of error, and in any
event-for the reasons we have explained—whether the trial judge was right or
wrong is not the pertinent question under AEDPA.
Id. at 778, n. 3 (emphasis added) (internal citation omitted). See also Schriro v. Landrigan, 550
U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a
federal habeas court, in its independent review of the legal question, is left with a ‘firm
conviction' that the state court was ‘erroneous.' ").
In making this determination, a federal court must accord a presumption of correctness to
a state court's factual findings, which a petitioner can rebut only by clear and convincing
evidence. 28 U.S.C. § 2254(e). Where a state court's factual findings are not made explicit, a
federal court's "duty is to begin with the [state] court's legal conclusion and reason backward to
the factual premises that, as a matter of reason and logic, must have undergirded it." Campbell v.
Vaughn, 209 F.3d 280, 289 (3d Cir. 2000). In determining what implicit factual findings a state
court made in reaching a conclusion, a federal court must infer that the state court applied federal

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law correctly. Marshall v. Lonberger, 459 U.S. 422, 433 (1982). “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 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
For federal habeas claims not adjudicated on the merits in state-court proceedings, the
Court must exercise its independent judgment. McCracken v. Gibson, 268 F.3d 970, 975 (10th
Cir. 2001). Any state-court findings of fact that bear upon the claim are entitled to a
presumption of correctness rebuttable only by clear and convincing evidence. Hooks v. Ward,
184 F.3d 1206, 1223 (10th Cir. 1999) (applying § 2254(e)(1)'s presumption of correctness to
state-court factual findings bearing upon the claim, even though the claim was not adjudicated
on the merits by the state court).
E. Guilty Pleas
Petitioner's claim concerns the adequacy of his nolo contendere plea. A defendant's plea
of guilty (and nolo contendere, which is treated as a guilty plea under Colorado law, People v.
Darlington, 105 P.3d 230, 234 (Colo. 2005)) amounts to a waiver of his constitutional right to a
trial by jury. The Supreme Court repeatedly has held that, as with any waiver of a constitutional
right, the Due Process Clause of the United States Constitution requires that a guilty plea be
made “knowingly, voluntarily and intelligently.” Boykin v. Alabama, 395 U.S. 238 (1969). The
constitutional standard is one that asks whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to the defendant. Id. at 243. To enter a plea
that is knowing and voluntary, the defendant must have a full understanding of what the plea
connotes and of its consequence. See United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir.
2002) (citations and internal quotation marks omitted). It is not necessary that the record reflect
a detailed enumeration and waiver of rights as a result of the guilty plea; rather the issue is

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simply whether the record affirmatively shows that the guilty plea was intelligent and voluntary.
Stinson v. Turner, 473 F.2d 913 (10th Cir. 1973). "Whether a plea is voluntary is a question of
federal law, but this legal conclusion rests on factual findings and inferences from those
findings." Fields v. Gibson, 277 F.3d 1203, 1212 (10th Cir. 2002) (citing Boykin ). The
determinations of factual issues made by a State court are presumed to be correct and the
applicant can rebut this presumption only with clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
In reviewing the merits of this claim, the CCA held as follows.
King contends that the entry of his plea was unconstitutionally obtained
because it was involuntary, unknowing, and unintelligent. But, his motion did not
allege that his plea was constitutionally infirm. Instead, he checked the box on the
Form 4 stating the grounds for his motion was newly discovered evidence and did
not check the box indicating that his conviction was entered in violation of the
constitution.
Normally, we decline to address this argument raised for the first time on
appeal. See DePineda v. Price, 915 P.2d 1278, 1280 (Colo. 1996) ("Issues not raised
before the district court in a motion for postconviction relief will not be considered
on appeal of the denial of that motion."); People v. Goldman, 923 P.2d 374, 375
(Colo. App. 1996). But, even if we were to address this argument and liberally
construe King's post-conviction motion as stating such a claim, based on the record,
which included his written plea agreement and a transcript of the providency hearing,
we conclude that his plea complied with Crim. P. 11(b) and, therefore, is
constitutional. See Crim. P. 11(b) (prior to accepting a guilty or nolo contendre plea,
the district court shall determine that (1) the defendant understands the nature of the
charges against him or her, the elements of the offenses to which he or she is
pleading guilty, and the effect of his or her plea; (2) the plea is voluntary and not the
result of undue influence or coercion on the part of anyone; and (3) there is a factual
basis for the plea)); see also Sanchez-Martinez v. People, 250 P.3d 1248, 1254 (Colo.
2011).
We note that the written plea agreement, which King signed, contained a
comprehensive explanation of the elements of the charge to which he was pleading
nolo contendere, the effect of that plea, the penalty to be imposed, and the rights he
was waiving. In addition, at the providency hearing,1 the court confirmed that King
understood what a nolo contendere plea meant, the binding nature of his plea, the
1

The hearing transcript is attached to Respondents’ Answer as Exhibit H (ECF no. 13-8).
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penalty to be imposed, and that he was entering the plea voluntarily. Accordingly,
contrary to defendant's contention, we conclude that his plea was knowingly,
intelligently, and voluntarily entered. See Benavidez v. People, 986 P.2d 943, 951
(Colo. 1999) (a defendant's in-court affirmation that he understood the matters
described in the printed plea agreement provided sufficient compliance with Crim.
P. 11 (b)); People v. Chavez, 730 P.2d 321, 324-25 (Colo. 1986) (guilty plea was
constitutionally sound where providency hearing record showed that the court
explained the elements of and penalty for the offense, the defendant acknowledged
that he understood the charges and the penalty, that he was waiving certain rights,
and that he was admitting guilt to pled charges).
The order is affirmed.
ECF No. 13-5, pp. 4-7
The state court’s factual determinations that Petitioner's plea was made knowingly and
voluntarily and that Petitioner was competent to enter the plea are entitled to the presumption of
correctness. Marshall v. Lonberger, 459 U.S. 422, 431 (1983). Applicant has failed to rebut that
presumption with clear and convincing evidence. Id. Moreover, Applicant has failed to show
that the CCA’s determination was contrary to, or an unreasonable application of, federal law as
determined by the Supreme Court. In this regard, in order to make such a showing, Applicant
would have to cite to Supreme Court precedent clearly mandating that the Due Process Clause
mandates that trial courts advise Defendants about all potential merger statutes applicable to all
charges originally charged against them in their individual cases prior to accepting a plea of
guilty. This Court has conducted independent research and has not located any such precedent.
Given the lack of such a holding by the Supreme Court, it cannot be said that the state court
unreasonably applied clearly established Federal law. Woods v. Donald, 135 S.Ct. 1372, 1377
(2015) (“Because none of our cases confront “the specific question presented by this case,” the
state court's decision could not be “contrary to” any holding from this Court.”); see also Carey v.
Musladin, 549 U.S. 70, 76–77 (2006).
Moreover, Mr. King elected to represent himself and declined the trial court’s
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recommendation to obtain professional representation. Had he been represented by competent
counsel, presumably he would have been advised about the merger statute in relationship to the
benefits and risks of proceeding to trial. As the District Court noted, however, “the Court cannot
relieve Defendant of the natural consequences of self representation.” ECF no. 13-7, p. 2. See
McKaskie v. Wiggins, 465 U.S. 168, 177 (1984) ("a defendant who exercises his right to appear
pro se cannot thereafter complain that the quality of his own defense amounted to a denial of
effective assistance of counsel.") (quoting Faretta v. California, 422 U.S. 806, 834 n. 46
(1975)).2
Here, Mr. King has not met his burden of showing that the state court's decision is clearly
contrary to federal law as determined by the Supreme Court of the United States. Nor has he
shown that the state court's decision is an unreasonable application of clearly established federal
law as determined by the Supreme Court of the United States. In order for him to succeed on his
claim it is not enough to convince a federal court that in its independent judgment the state court
applied the law incorrectly, it must have applied the law in an “objectively unreasonable
manner.” Bell v. Cone, 535 U.S. 685, 698–699 (2002). Applicant has not made such a showing
and, therefore, is not entitled to habeas relief with respect to his claim. Cf. Hammons v.
Paskiewicz, 368 F. App’x 904, 907 (10th Cir. 2010) (“Our review of the record in this case,
including the transcript of the plea colloquy, convinces us that Mr. Hammons' guilty plea was
freely given, and not the product of coercion by anyone.”). Accordingly, it is

2

Finally, the Court notes that Mr. King was charged with six felonies: two counts of Identity Theft, a Class
4 felony, which requires a sentence of from two to six years incarceration; two counts of Forgery, a Class 5 felony, which
requires a sentence of from one to three years incarceration; and two counts of Possession of a Forged Instrument, a Class
6 felony, which requires a sentence of from one year to eighteen months incarceration. Even taking the merger statute
into consideration, had Mr. King proceeded to trial, he would have faced a possible maximum sentence of from two to
six years imprisonment if all of the counts were imposed to run concurrently or, if the counts were to run consecutively,
six to eighteen years (assuming convictions of the forgery and not possession counts) or six to fifteen years (assuming
convictions of the possession counts and not the forgery counts). Thus, his assertion now that he would have taken his
chances going to trial must be viewed with some skepticism.

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ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2254 filed by Applicant Jeffery David King is DENIED. It is
FURTHER ORDERED that this case is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that there is no basis on which to issue a certificate of
appealability pursuant to 28 U.S.C. § 2253(c).
DATED

May 1

, 2015.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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