Fuller v. Warden et al

Filing 39

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS: 37 Motion for Leave to File Out of Time is GRANTED. 1 Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 is DENIED. by Judge R. Brooke Jackson on 1/18/17. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 16-cv-00891-RBJ
LARRY FULLER,
Applicant,
v.
WARDEN, Arkansas Valley Correctional Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
______________________________________________________________________
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

Applicant, Larry Fuller, has filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. ' 2254 (Docket No. 1) challenging the validity of his criminal
conviction in the District Court of Weld County, Colorado. Respondents have filed an
Answer (Docket No. 23). Applicant did not file a Reply brief by the court-ordered
deadline, after being granted three extensions of time. On January 17, 2017, Applicant
filed a Motion for Leave to File [Reply] Out of Time for Excusable Neglect/Justifiable
Excuse (Docket No. 37), along with a tendered Reply (Docket No. 38). The Court will
grant the motion to file out of time. Having considered the Application, Respondents’
Answer, the Applicant’s Reply and the state court record, the Court will deny the
Application.

1

I. BACKGROUND
On March 11, 2009, Applicant was convicted in Weld County District Court Case
No. 08CR1227 of possession of chemicals or supplies to manufacture a controlled
substance. (Docket No. 10-2 at 2). He was adjudicated a habitual offender and
sentenced to an aggregate 96-year prison term with the Colorado Department of
Corrections. (Id. at 2, 13-14).
Applicant=s conviction was affirmed on direct appeal in People v. Fuller (Fuller I),
No. 09-1578 (Colo. App. Nov. 23, 2011) (unpublished). (Docket No. 10-2). The
Colorado Supreme Court denied his petition for certiorari review on June 18, 2012.
(Docket No. 10-8).
Applicant subsequently filed a motion for post-conviction relief pursuant to Colo.
Crim. P. Rule 35(c), which was denied by the state district court on December 24, 2012.
(Docket No. 10-1 at 7). The Colorado Court of Appeals affirmed in People v. Fuller
(Fuller II), No. 13-46 (Colo. App. Nov. 26, 2014) (unpublished). (Docket No. 10-3).
Applicant’s petition for certiorari review was denied by the Colorado Supreme Court on
August 24, 2015. (Docket No. 10-13).
On April 19, 2016, Applicant filed his federal application under 28 U.S.C.
' 2254 raising the following claims:
1. Applicant’s Fourth Amendment rights were violated when the trial court
failed to suppress the contents of a suitcase that was seized illegally.
(Docket No. 1 at 4-7).
2. Applicant’s Fifth Amendment due process rights were violated when the
prosecution knowingly presented, and the trial court knowingly allowed the
jury to hear, perjured testimony by a police officer. (Id. at 7-9).

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3. There was insufficient evidence to prove beyond a reasonable doubt that
Applicant knew the suitcase contained chemicals for making methamphetamine.
(Id. at 9-11).
4. Applicant’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963),
California v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488
U.S. 51 (1988), were violated by the police’s failure to test the suitcase for
fingerprints before having it destroyed. (Id. at 11-17).
5. Applicant’s right to an impartial jury under the Sixth and Fourteenth
Amendments was violated by the trial court’s failure to inquire into the prosecutor’s
alleged improper and/or ex-parte disclosure of Applicant’s prior convictions to the
jury. (Id. at 17-19).
6. Applicant’s right to an impartial jury under the Sixth and Fourteenth
Amendments was violated by the trial court’s mailing of letters to jurors,
after the defense sought their contact information, ensuring they knew they
were not required to speak with anyone about their jury service. (Id. at
19-21).
7. Applicant=s right to a jury trial, as interpreted in Blakely v. Washington, 542
U.S. 296 (2004), was violated when the trial court, rather than a jury, made the
sentence-enhancing determination that Applicant’s conviction constituted his
second conviction for such an offense. (Id. at 21-24).
8. Applicant=s Sixth Amendment right to the effective assistance of counsel was
violated when counsel: (1) failed to investigate fully all of the charges and evidence
against Applicant; (2) failed to obtain expert testimony on issues dealing with the
chemical make-up and manufacture of methamphetamines; (3) failed to consult
with experts in the field of the chemical make-up and manufacture of
methamphetamines; (4) relied only on the prosecution’s expert witnesses on
matters relating to the chemical make-up and manufacture of methamphetamines;
(5) failed to inform Applicant that the prosecution had given notice of intent to file
habitual criminal charges, when the prosecution had stated that no habitual
criminal charges would be filed if he waived his preliminary hearing; (6) failed to
request a postponement of the preliminary hearing to determine if the prosecutor’s
actions in coercing and/or inducing Applicant to waive his preliminary hearing
constituted illegal and/or unethical behavior; (7) failed to argue that the
prosecution had illegally coerced and/or induced Applicant’s waiver of the
preliminary hearing; (8) failed to adequately argue that the evidence used against
Applicant was illegally seized; (9) failed to argue that the prosecution knew that
Applicant’s convictions were obtained through the use of perjured testimony; (10)
failed to argue that the court knew that Applicant’s convictions were obtained
through the use of perjured testimony; (11) failed to adequately argue that the
evidence against Applicant was insufficient to establish his guilt beyond a
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reasonable doubt; (12) failed to adequately argue that the evidence used against
Applicant was knowingly and intentionally destroyed by law enforcement
personnel, thereby depriving him of the use of materially exculpatory evidence at
trial in order to prove his “actual innocence”; (13) failed to subject the prosecution’s
case to meaningful adversarial testing; (14) failed to use the photos taken from
the refurbished 7-Eleven surveillance video to impeach and/or rebut Baxter’s
testimony regarding the suitcase; (15) failed to inform Applicant that the
prosecution had violated his right to an impartial jury trial when it engaged in ex
parte communications with the jury; (16) failed to adequately argue that the
prosecution had violated his right to an impartial jury trial when it engaged in ex
parte communications with the jury; (17) failed to inform Applicant that the trial
judge violated his right to an impartial jury trial when he engaged in ex parte
communications with the jury; (18) failed to adequately argue that the trial judge
violated Applicant’s right to an impartial jury trial when he engaged in ex parte
communication(s) with the jury; (19) failed to argue that the trial judge violated
Applicant’s right to a jury trial on the charged Count 3: Possession Of Chemicals
Or Supplies to Manufacture a Controlled Substance – Schedule II by utilizing facts
and evidence not presented to the jury in order to substantially modify the
sentencing range of the charged count; and, (20) met with Applicant only four
times over the course of one year for a total of two hours.
In the Pre-Answer Response, Respondents conceded that the Application is timely
under the one-year limitation period set forth in 28 U.S.C. § 2244(d). (Docket No. 10 at
5-8). Respondents further conceded that Applicant exhausted state court remedies for
claim one. (Id. at 13). Respondents argued, however, that claim three was
unexhausted and claims two, four, five, six, seven and eight were procedurally defaulted
(Id. at 13-25).
In a previous Order, the Court dismissed claims two, four, five, six, and seven as
procedurally defaulted. (Docket No. 14). The Court ordered Respondents to file an
Answer addressing the merits of exhausted claims one and three. The Court further
deferred ruling on the applicability of a procedural bar to the twenty
ineffective-assistance-of-counsel (IAC) allegations asserted in claim eight, under
Martinez v. Ryan, __ U.S. __, 132 S.Ct. 1309 (2012), pending receipt of the state court
4

record and Respondents’ argument in the Answer as to whether any of the IAC
allegations have substantial merit. (Id.).
The Court addresses claims one, three and eight below.
II. APPLICABLE 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.
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 of the relevant state court decision. See Greene v. Fisher, ___ U.S. ___, 132
S.Ct. 38, 44 (2011). Clearly established federal law Arefers 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.
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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). AThe 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 Aunreasonable application@ clause is an
objective inquiry. See Williams, 529 U.S. at 409-10. A[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
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incorrectly. Rather that application must also be unreasonable.@ Id. at 411. A[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.
Harrington, 562 U.S. at 101 (internal quotation marks omitted). In conducting this
analysis, the court Amust 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.
Under this standard, Aonly the most serious misapplications of Supreme Court
precedent will be a basis for relief under ' 2254.@ Maynard, 468 F.3d at 671; see also
Harrington, 562 U.S. at 88 (stating that Aeven 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.
Harrington, 562 U.S. at 102.
A[R]eview 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, 563 U.S. 170, 181 (2011).
7

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. AThe
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)).
B. Pro Se Litigant
Applicant is proceeding pro se. The court, therefore, Areview[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 an applicant to an application of different
rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

8

III. ANALYSIS OF CLAIMS
A. Claim One
For his first claim, Applicant asserts that his Fourth Amendment rights were
violated when the trial court failed to suppress the contents of a suitcase that was seized
illegally. (Docket No. 1 at 4-7).
1. controlling federal law
The Fourth Amendment protects against unreasonable search and seizure and is
generally enforced through the exclusionary rule. See, e.g., Illinois v. Gates, 462 U.S.
213, 254 (1983); Stone v. Powell, 428 U.S. 465, 482-87 (1976). In Stone, the Supreme
Court limited federal habeas review for alleged Fourth Amendment violations based on
the Court’s determination that any additional contribution gained from consideration of
search-and-seizure claims of state prisoners on collateral review is small in relation to the
associated costs. 428 U.S. at 493-94. The Court held that “where the State has
provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state
prisoner may not be granted federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was introduced at his trial.” Stone, 428
U.S. at 494.
The Supreme Court has not defined precisely the phrase “opportunity for full and
fair litigation.” See Gamble v. State of Oklahoma, 583 F.2d 1161, 1164 (10th Cir. 1978).
In Gamble, the Tenth Circuit determined that the phrase:
includes, but is not limited to, the procedural opportunity to raise or
otherwise present a Fourth Amendment claim. It also includes the
full and fair evidentiary hearing contemplated by Townsend [v. Sain,
372 U.S. 293 (1963)]. Furthermore, it contemplates recognition and
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at least colorable application of the correct Fourth Amendment
constitutional standards.
Id. at 1165. “Thus, a federal court is not precluded from considering Fourth Amendment
claims in habeas corpus proceedings where the state court willfully refuses to apply the
correct and controlling constitutional standards.” Id.
2. state court proceedings
Applicant filed a motion to suppress the contents of a suitcase searched by the
police outside of a 7-Eleven store. (State Court R., Court File, at 66; see also 12/5/08
and 12/9/08 Hrg. Trans.). Following an evidentiary hearing, the trial court denied the
motion, reasoning that the evidence seized was in the officer’s plain view. (State Court
R., Court File at 138-39).
Defense counsel subsequently filed a Motion to Reopen the Motions
[Suppression] Hearing Based on New Evidence. (State Court R., Court File at 150).

In

the motion, counsel argued that footage of the surveillance video taken at the 7-Eleven
“shows evidence that directly contradicts Officer Baxter's testimony at the motions
hearing . . . in regards to the search conducted of the suitcase.” (Id. at 150).
Specifically, counsel argued:
During the motions hearing on December 9, 2008 a surveillance video was
admitted into evidence for consideration in regards to outstanding motions.
This video was a high speed copy and hard to view clearly. Counsel
indicated at the end of the motions hearing and at pretrial readiness on
February 17, 2009 a normal speed video was being obtained and may be
relevant to the motions issues. On February 25, 2009 a normal speed copy
of the video was provided to the office of defense counsel. Counsel did not
received the video until February 26, 2009. A stipulated copy of the normal
speed copy of the video is attached.

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Footage of the video at normal speed shows evidence that directly
contradicts Officer Baxter's testimony at the motions hearing. Specifically in
regards to the search conducted of the suitcase.
The video clearly shows the suitcase is zipped when it is placed
outside of the store, prior to Officer Baxter searching the suitcase. No one is
shown unzipping the suitcase on the video. It also shows Officer Baxter
putting on gloves prior to approaching the suitcase, further the video seems
to show Officer Baxter touching and/or moving the suitcase. The video does
not seem to show Officer Baxter coughing after being near the suitcase.
The video does not seem to show a flashlight being used by Officer Baxter,
which he testified to using at the motions hearing.
(Id. at 150-51).
The People argued in response that:
The evidence presented to this Court does not support a finding of a need to
reopen the motions hearing for further evidence and delay the trial. This
Court has sworn testimony from two separate officers that the suitcase was
not touched or opened until after Officer Baxter observed the suspected
methamphetamine lab. The evidence presented to the Court by the
defendant can at worst be described as inconclusive and at best can be
said to completely support the testimony of Officers Baxter and Petrucci.
There is no evidence that has been presented to this Court that directly
conflicts with the evidence the Court relied upon in denying the defendant's
motion to suppress evidence.
(Id. at 158).
Following the trial court’s in camera review of the “normal speed copy of the video,”
as well as still photos redacted from the surveillance tape, the trial court denied the motion
to re-open the suppression hearing on the first day of trial. (Id. at 162; 3/3/09 Hrg. Tr.;
Docket No. 10-2 at 12).1

1 The transcript of the trial court’s oral ruling on the first day of trial, March 9, 2009, is not part of the state
court record. Counsel for Respondents represents in the Answer brief that he spoke to the state court
clerk about the missing transcript. (Docket No. 23 at 47, n.3). The clerk responded that for some
unknown reason, there is no transcript of that portion of the court proceedings on March 9, 2009. (Id.).

11

Applicant appealed the trial court’s denial of the motion to suppress. (Docket No.
10-4 at 13-20).
In Fuller I, the Colorado Court of Appeals set forth the following relevant
background facts:
Defendant carried the suitcase with him into the store. The
suitcase was eventually placed outside the store directly next to the
entrance. While it was sitting outside the store, the suitcase was
unzipped approximately ten to twelve inches on top, leaving a gap
one inch wide. Without physically manipulating the suitcase, but
with the aid of a flashlight, Officer Baxter looked into the bag and
saw paraphernalia that he recognized as being used in the
manufacture of methamphetamine.
(Docket No. 10-2 at 3). The state appellate court then reviewed the applicable Fourth
Amendment principles:
Searches and seizures of private property must be reasonable.
U.S. Const. amend. IV. Warrantless searches and seizures are per
se unreasonable unless they are justified by an established
exception to the warrant requirement. See id.; Colo. Const. art. II, § 7;
People v. Kluhsman, 980 P.2d 529, 534 (Colo. 1999). The plain
view doctrine is one such established exception. Kluhsman, 980 P.2d at
534.
Under the plain view doctrine, law enforcement officers may
seize evidence that is plainly visible, without a proper search
warrant, provided that “(1) the initial intrusion onto the premises
was legitimate; (2) the police had a reasonable belief that the
evidence seized was incriminating; and (3) the police had a lawful
right of access to the object.” People v. Pitts, 13 P.3d 1218, 1222
(Colo. 2000).
(Id. at 4).
Applying the above legal authority, the Colorado Court of Appeals rejected
Applicant’s claim on the following grounds:

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Here, as defendant concedes, the officers’ presence at the 7-Eleven
store was legitimate.
To satisfy the second prong of the plain view doctrine, the
incriminating nature of the evidence must be “immediately apparent” to the
officer. [People v.] Alameno, 193 P.3d [830,] 834 [(Colo. 2008)]. An officer
must have “probable cause to associate the item with criminal activity
without conducting a further search.” Id.
Although defendant argues the incriminating nature of the evidence
was not immediately apparent because an officer needed to use a flashlight
to see the contents of the bag, and the use of a flashlight constitutes a
search, we disagree. See Texas v. Brown, 460 U.S. 730, 740 (1983) (“The
use of artificial means to illuminate a darkened area simply does not
constitute a search, and thus triggers no Fourth Amendment protection.”).
The trial court found that there was a large gap at the top of the suitcase,
which allowed Officer Baxter, with the aid of a flashlight, to see inside the
bag without opening it. The court further found that Officer Baxter, based on
his prior law enforcement experience, immediately determined that the
contents of the suitcase were incriminating upon viewing it with the aid of his
flashlight and without opening it. The record supports these findings, and
we will not disturb them on appeal.
The plain view doctrine also requires the police to have a lawful right
of access to the evidence seized. We are unpersuaded by defendant’s
argument that the police did not have lawful access to the suitcase because
defendant denied ownership of it, and thus, there was no reason to view its
contents.
The purpose of the lawful right of access requirement is to prevent
law enforcement from using the plain view exception to seize evidence that,
although in plain view from an officer’s legitimate vantage point, would
typically require the police to obtain a warrant before seizing the evidence.
See Horton v. California, 496 U.S. 128, (1990) (police had lawful access to
seize various weapons from the defendant’s home where weapons were in
plain view and police had a warrant to enter the home); . . . Coolidge v. New
Hampshire, 403 U.S. 443, 466 (1971) (“What the ‘plain view’ cases have in
common is that the police officer in each of them had a prior justification for
an intrusion . . . . The doctrine serves to supplement the prior justification
. . . .”).
Here, Officer Baxter had a lawful right of access to the suitcase,
which sat outside the entrance of the store. At the time the officer looked in
it, defendant had no reasonable expectation of privacy in the partially open
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suitcase, which was left unguarded and readily accessible to any passerby.
See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)
(a reasonable expectation of privacy exists when a person has exhibited an
actual, subjective expectation of privacy, and the expectation is one that
society is prepared to recognize as reasonable). No warrant was required
for the officer to look into the partially open suitcase without disturbing it.
See People v. Bostic, 148 P.3d 250, 256 (Colo. App. 2006) (officer had
lawful right of access to syringe where he could see it in drawer, which was
partially open).
We conclude the contents of the suitcase were admissible
under the plain view exception to the warrant requirement, and the
trial court did not err in denying defendant’s motion to suppress.
(Id. at 4-7).
3. analysis
The Court finds that the state trial and appellate court proceedings sufficed to
provide Applicant with an opportunity for full and fair litigation of his Fourth Amendment
claim. See Smallwood v. Gibson, 191 F.3d 1257, 1265 (10th Cir.1999) (holding that
petitioner was not entitled to habeas review of Fourth Amendment claim where
petitioner’s trial counsel informed the trial court of the factual basis for a Fourth
Amendment claim, appellate counsel presented the issue to the state appellate court on
direct appeal, and the state courts “thoughtfully considered the facts underlying
petitioner's Fourth Amendment claim” but rejected it on the merits by applying appropriate
Supreme Court precedents). The state courts relied on United States Supreme Court
Fourth Amendment precedent in resolving Applicant’s claim. (See State Court R., Court
File, at 138 (citing People v. Pitts, 13 P.3d 1218, 1222 (Colo. 2000) (which in turn relied on
U.S. Const. amend. IV and Arizona v. Hicks, 480 U.S. 321, 326-28 (1987)); Docket No.
10-2, at 4-7 (citing United States Supreme Court Fourth Amendment jurisprudence)).

14

Applicant’s mere disagreement with the results of the suppression hearing and the
motion to reopen that hearing does not demonstrate that the state courts failed to
recognize, or willfully ignored, controlling legal standards. Even if the trial court did not
make any specific factual findings or legal conclusions in denying the motion to reopen
the suppression hearing, the court was entitled to rely on its original order denying the
motion to suppress, after the court reviewed the slower speed video surveillance tape and
still shots and determined that there was nothing in that footage to warrant reopening the
hearing.
In the Application, Mr. Fuller rehashes arguments that were raised in his opening
brief on direct appeal (see Docket No. 10-4 at 17-20), and which were expressly rejected
by the state appellate court based on application of Fourth Amendment principles. His
contention that the state appellate court’s ruling was incorrect under People v. Grana, 527
P.2d 543 (Colo. 1974) (concluding that seized evidence was not in ‘plain view,’ given that
it “was found within a zippered compartment within a closed flight bag”) and People v.
Counterman, 556 P.2d 481, 483 (1976) (recognizing that “[t]he owner clearly had an
expectation of privacy with regard to his sealed knapsack which was sufficient to invoke
constitutional protections against unreasonable police intrusion.”) are not well-founded.
Grana and Counterman are inapposite here because the state courts found that “there
was a large gap on the top of the suitcase,” which allowed the police officer, with the aid of
a flashlight to see inside the bag without opening it. (State Court Record, Court File, at
138; see also Docket No. 10-2 at 5, citing Texas v. Brown, 460 U.S. at 740).

15

The Court finds that Applicant is not entitled to federal habeas review for his Fourth
Amendment claim because the state courts provided him an opportunity for full and fair
litigation of that claim. Claim one will be dismissed.
B. Claim Three
In his third claim, Applicant contends that there was insufficient evidence to prove
beyond a reasonable doubt that he knew the suitcase contained chemicals for making
methamphetamine. (Docket No. 1, at 9-11).
1. controlling federal law
A constitutional challenge to the sufficiency of the evidence is governed by
Jackson v. Virginia, 443 U.S. 307 (1979). Evidence is sufficient to support a conviction
as a matter of due process if, “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Coleman v. Johnson,

U.S.

, 132 S.Ct. 2060,

2064 (2012) (quoting Jackson, 443 U.S. at 319) (emphasis in the original). The court
looks at both direct and circumstantial evidence in determining the sufficiency of the
evidence. See Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998). A federal
habeas court’s review under Jackson is “sharply limited, and a court faced with a record of
historical facts that supports conflicting inferences must presume-even if it does not
affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor
of the prosecution, and must defer to that resolution.” Turrentine v. Mullin, 390 F.3d 1181,
1197 (10th Cir. 2004) (quotations and alterations omitted). See also Messer v. Roberts,
74 F.3d 1009, 1013 (10th Cir. 1996) (in reviewing the sufficiency of the evidence, the

16

federal habeas court “may not weigh conflicting evidence nor consider the credibility of
witnesses,” but must “‘accept the jury's resolution of the evidence as long as it is within
the bounds of reason.’”) (quoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir.
1993)).
“[F]ederal courts must look to state law for ‘the substantive elements of the criminal
offense,’ but the minimum amount of evidence that the Due Process Clause requires to
prove the offense is purely a matter of federal law.” Johnson, 132 S.Ct. at 2064.
2. state court proceedings
In Fuller I, the Colorado Court of Appeals applied a state law standard similar to
Jackson, see Docket No. 10-2 at 8, and rejected Applicant’s claim on the following
grounds:
Defendant was charged under section 18-18-405(1)(a), C.R.S.
2011. As pertinent here, that section provides that a person commits a
second degree felony if, as a second offense under the statute, he or she
possesses one or more chemicals, supplies, or equipment with the intent to
manufacture a controlled substance.
Defendant contends the prosecution failed to prove knowing
possession and intent to manufacture. A finding of knowing possession and
intent to manufacture can be premised on circumstantial evidence. People
v. Calise, 179 Colo. 162, 164-65, 498 P.2d 1154, 1156 (1972); People v.
Atencio, 140 P.3d 73, 75 (Colo. App. 2005).
The prosecution presented the following evidence at trial. The night
before police arrested defendant, he stayed at the house where Matthew
Lemmo resided. At some point during defendant’s stay, Lemmo’s wallet
went missing. He confronted defendant about the missing wallet, after
which defendant decided to leave the house. The first time Lemmo ever
saw the suitcase at issue was when defendant gathered “[defendant’s]
things,” including the suitcase, and left the house. A few minutes later,
Officer Pertucci saw defendant carrying the suitcase while walking down
the street away from Lemmo’s residence.

17

Defendant went to a nearby 7-Eleven store and was carrying the
suitcase when he entered the store. A store clerk saw defendant open the
suitcase inside the store and pull out his tattoo case from inside it. The clerk
testified that defendant was behaving in a way that was “protective,”
“defensive,” and “paranoid” about his suitcase.
Lemmo had followed defendant to the store to again confront
him about his missing wallet, which he believed defendant had stolen.
During this confrontation, Lemmo placed the suitcase outside the entrance
to the store.
Officer Baxter testified that after he arrived at the store, he
approached the suitcase and observed that it contained a mobile
methamphetamine lab with all of the equipment and supplies necessary to
produce methamphetamine.
The prosecution’s expert witness also testified that there was
no legitimate purpose to have the specific items found in the suitcase
(including Coleman fuel, glassware with connective tubing, a turkey baster,
muriatic acid, hydrogen peroxide, hydroiodic acid, and an aqueous solution
with pseudoephedrine) together in one place, except to make
methamphetamine.
We conclude that the circumstantial evidence presented, taken as a
whole and in the light most favorable to the prosecution, was sufficient to
support a finding beyond a reasonable doubt that defendant knew of the
contents of the suitcase and intended to manufacture methamphetamine.
Thus, the prosecution presented sufficient evidence to convict defendant of
this offense.
(Id. at 8-11).
3. analysis
The state appellate court=s factual findings are presumed correct in this § 2254
proceeding and are supported by the state court record. (See State Court R., 3/9/09
Trial Tr., Petrucci, Lemmo,and Tiller testimony; 3/10/09 Trial Tr., Baxter and Jorgenson
testimony). Applicant does not point to any clear and convincing evidence to rebut those
findings. Instead, he argues that the Colorado Court of Appeals ignored the Colorado

18

Supreme Court’s decision in People v. Calise, 498 P.2d 1154, 1156 (1972), which
recognized that “in a circumstantial evidence case the evidence must be consistent with
guilt and inconsistent with any reasonable hypothesis of innocence.” (See Docket No. 1
at 10). However, Applicant’s reliance on this portion of Calise is misplaced because it
was rejected by the following language in People v. Bennett, 515 P.2d 466 (Colo. 1973):
“[W]e now cast aside as outmoded and as confusing the requirement that the
prosecution's evidence, when wholly circumstantial, must exclude every reasonable
hypotheses other than that of guilt and no longer require such an instruction or such a test
to be applied.” Id. at 469. See also People v. Marques, 520 P.2d 113, 117 (Colo. 1974)
(stating that when the sufficiency of the evidence is challenged on appeal, the question is
whether a jury could reasonably conclude that the defendant’s guilt of the charged
offense was proven beyond a reasonable doubt, regardless of whether the evidence is
direct or circumstantial).
Applicant also cites People v. Atencio, 140 P.3d 73, 75 (Colo. App. 2005), for the
proposition that when a person is not in exclusive possession of the premises in which
chemicals or supplies to manufacture a schedule II controlled substance are found, an
inference of possession may not be drawn unless there is evidence tending to buttress
the inference of possession. (Docket No.1 at 11). Applicant argues that there was no
evidence presented at trial that “he exercised exclusive possession of the suitcase or that
he had knowledge of its contents.” (Id.). Instead, the evidence was that Applicant carried
the suitcase into the 7-Eleven, but Mr. Lemmo carried it back outside. (Id.).

19

Even though Mr. Lemmo exercised temporary control over the suitcase in placing it
outside the 7-Eleven store, other evidence was consistent with the inference that the
suitcase belonged to Applicant, including: Mr. Lemmo’s testimony that had never seen
the suitcase until Applicant carried it with him when leaving Mr. Lemmo’s home earlier
that day; Officer Petrucci’s testimony that he saw Applicant carrying the suitcase while
walking down the street away from Lemmo’s residence; the store clerk’s testimony that
Applicant entered the 7-Eleven carrying the suitcsase, pulled out a tattoo case from inside
it, and was acting “protective,” “defensive,” and “paranoid” about the suitcase. (See
State Court R., 3/9/09 Trial Tr.). The circumstantial evidence at trial supported the jury’s
finding that Applicant possessed one or more chemicals, supplies, or equipment with the
intent to manufacture a controlled substance.
The state appellate court’s determination that the evidence was legally sufficient
to support Applicant’s conviction for violating § 18-18-405(1)(a), C.R.S., was not an
unreasonable application of the Jackson standard, nor was it based on an unreasonable
determination of the facts. Therefore, Applicant is not entitled to federal habeas relief for
claim three.
C. Claim Eight
In claim eight, Applicant asserts twenty sub-claims based on an alleged violation of
his Sixth Amendment right to the effective assistance of counsel. (Docket No. 1 at 25).
Applicant did not raise his IAC allegations before the state trial court in the state
post-conviction proceeding. Instead, he asserted the claims for the first time on appeal
in Fuller II. The Colorado Court of Appeals refused to address the claims on the

20

procedural ground that Applicant had failed to first raise them in the trial court. (Docket
No. 10-3 at 5-6). Respondents maintain that Applicant defaulted all of the allegations in
claim eight in the states courts pursuant to an adequate and independent state
procedural rule. (Docket No. 10 at 24).
In the Order to Dismiss in Part (Docket No. 14), the Court deferred ruling on the
Respondents’ assertion of the procedural default defense with respect to the Applicant’s
IAC claims, under Martinez v. Ryan, because Applicant was not appointed counsel in his
initial state post-conviction proceedings. In Martinez, the Supreme Court held:
Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the initial-review collateral proceeding,
there was no counsel or counsel in that proceeding was ineffective.
Id. at 1320.2 To constitute cause to excuse a procedural default, Applicant must show
that the procedurally defaulted IAC claim is “substantial”— i.e., has “some merit.” Id. at
1318. A claim that is “wholly without factual support” is not substantial. Id. at 1319.
1. controlling federal law
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must
show both that (1) his counsel=s performance was deficient (i.e., that identified acts and
omissions were outside the wide range of professionally competent assistance), and (2)
he was prejudiced by the deficient performance (i.e., that there is a reasonable probability
2 Respondents object to the Court’s sua sponte consideration of the potential applicability of Martinez to
excuse the Applicant’s procedural default of his IAC claims. (Docket No. 23 at 28-32). Respondents’
arguments are duly noted. However, because the state court record demonstrated that Applicant was not
appointed counsel to assist him with his state post-conviction motion in the district court (see Docket No.
10-1 at 8), the Court deemed it prudent, in an abundance of caution, to take Martinez into consideration in
ruling on the procedural default defense.

21

that but for counsel=s unprofessional errors the result would have been different).
Strickland v. Washington, 466 U.S. 668 (1984).
AA court considering a claim of ineffective assistance must apply a >strong
presumption= that counsel=s representation was within the >wide range= of reasonable
professional assistance.@ Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at
689). AWith respect to prejudice, . . . >[a] reasonable probability is a probability sufficient
to undermine confidence in the outcome.=@ Id. (quoting Strickland, 466 U.S. at 694). AThe

likelihood of a different result must be substantial, not just conceivable.@
Strickland, 466 U.S. at 693. I need not address both prongs of the Strickland inquiry if
Applicant’s claim fails on one. Id. at 697.
2. analysis
a. sub-claims 1, 11, 13 and 20
Applicant asserts that defense counsel was ineffective when she: failed to
investigate fully all of the charges and evidence against Fuller (sub-claim 1); failed to
adequately argue that the evidence against Fuller was insufficient to establish his guilt
beyond a reasonable doubt (sub-claim 11); failed to subject the prosecution’s case to
meaningful adversarial testing (sub-claim 13); and, met with Applicant only four times
over the course of one year for a total of two hours (sub-claim 20). (Docket No. 1 at 25).
Claims 1 and 13 are wholly conclusory, without any supporting factual allegations,
which is insufficient to state a viable IAC claim. See Cummings v. Sirmons, 506 F.3d
1211, 1228-29, 33-34 (10th Cir. 2007) (allegations based on unsubstantiated assertions
of fact are not sufficient to satisfy Strickland); see also United States v. Fisher, 38 F.3d

22

1144, 1147 (10th Cir. 1994) (ineffective assistance claim fails Awhere [petitioner's]
allegations are merely conclusory in nature and without supporting factual averments@).
Claim 11 is refuted by the state court record. Defense counsel moved for a
judgment of acquittal at the close of the prosecution’s case and argued in closing that the
prosecution failed to prove that the suitcase belonged to Applicant and that he knew what
was inside. (State Court R., 3/10/09 Trial Tr. at 125, 183-195). Applicant does not
explain what else defense counsel could have argued that would likely have resulted in a
different outcome at trial. He has thus failed to show that counsel’s performance was
deficient, or that any deficiency prejudiced him at trial.
Claim 20 is without merit because Applicant has not demonstrated a reasonable
probability that he would have been acquitted if defense counsel had met with him more
often and for longer periods.
The Court finds and concludes that IAC sub-claims 1, 11, 13 and 20 lack merit.
Therefore, the claims are not substantial under Martinez and will be dismissed as
procedurally barred.
b. sub-claims 2, 3 and 4
In sub-claims 2, 3, and 4, Applicant contends that defense counsel was ineffective
in failing to consult with experts and obtain expert testimony on issues dealing with the
chemical make-up and manufacture of methamphetamines; instead, defense counsel
relied on the prosecution’s expert witness. (Docket No. 1 at 25). Applicant does not
expound on these claims in his § 2254 Application.
Conclusory allegations are insufficient to support an IAC claim. See Cummings v.

23

Sirmons, 506 F.3d 1211, 1228-29, 33-34 (10th Cir. 2007) (allegations based on
unsubstantiated assertions of fact are not sufficient to satisfy Strickland); see also United
States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (ineffective assistance claim fails
“where [petitioner's] allegations are merely conclusory in nature and without supporting
factual averments”). Applicant fails to set forth specific facts to explain how defense
counsel’s consultation with and retention of an expert would have created a reasonable
probability of acquittal. Mere speculation about a more favorable outcome cannot
sustain a Sixth Amendment claim. See Strickland, 466 U.S. at 693.
Nonetheless, the Court will consider the specific arguments raised by Applicant in
his opening brief on appeal in the state post-conviction proceeding. Applicant
maintained that had defense counsel consulted an expert, counsel could have asserted,
on cross examination of the State’s chemist, that (1) because the chemist described the
suitcase as “remnants’ of a methamphetamine lab, Applicant could not have had “intent”
to manufacture because “intent” refers to plans for the future; (2) the suitcase did not
contain every ingredient necessary to actually make methamphetamine; and, (3) one of
the chemicals in the suitcase was determined to be water, not fuel as the State’s chemist
testified. (Docket No. 10-9 at 23).
With regard to Applicant’s first contention, his characterization of the State
chemist’s testimony is incorrect. The chemist testified that the items in the suitcase were
“used in the manufacture of, or were made available for the manufacture of
methamphetamine.” (State Court R., 3/9/09 Trial Tr., at 116-117). The State’s expert
also testified that the suitcase contained every chemical needed to make

24

methamphetamine, except for phosphorous. (Id. at 117). Nothing in the State
chemist’s testimony negated Applicant’s intent to manufacture a schedule II controlled
substance. Applicant has not shown how he was prejudiced by defense counsel’s
failure to consult with an expert.
Applicant’s second contention is also contradicted by the state court record, which
reflects the following colloquy between defense counsel and the State’s chemist on cross
examination:
Q. You stated there was no phosphorous found when you tested these
samples; is that correct?
A. That’s correct. I did not analyze anything that had phosphorous in it.
Q. That’s a necessary ingredient, I guess, is the word you used, to make
methamphetamine?
A. In generation of HI, it is a necessary ingredient, yes.
(Id. at 118-119). Because defense counsel did cross examine the State’s expert about
the contents of the suitcase, Applicant has failed to show how he was prejudiced by
counsel’s failure to consult with an expert.
Finally, Applicant contends that if defense counsel had consulted experts, she
could have impeached the State’s expert with the fact that one of the alleged chemicals in
the suitcase – Coleman fuel – was in fact water. The Court finds no support in the record
for Applicant’s assertion. Although the State’s expert testified that he did not actually
extract and test the contents of the Coleman Fuel, there is nothing in the record to
suggest that the contents were water.
Moreover, even if defense counsel had retained an expert to testify that the
contents of the Coleman fuel tank were actually water, there is no reasonable probability
25

that the testimony would have affected the verdict. The state statute under which
Applicant was charged required that a defendant “possess one or more chemicals or
supplies or equipment with the intent to manufacture a controlled substance.”
§ 18-18-405(1)(a), C.R.S. (2008) (Emphasis supplied). The jury convicted Applicant
based on the contents of the suitcase, even though no phosphorous was found, because
the suitcase contained other items and ingredients necessary to manufacture
methamphetamine, including hydrochloric acid, pseudoephedrine, other chemicals,
glassware with rubber tubing coming out of it, a turkey baster and glass jars. (State
Court R., 3/10/09 Trial Tr. at 101-14).
The Court finds and concludes that IAC sub-claims 2, 3 and 4 lack merit.
Therefore, the claims are not substantial under Martinez and will be dismissed as
procedurally barred.
c. sub-claims 5, 6 and 7
Applicant asserts that defense counsel was ineffective in failing to: inform him that
the prosecution had given notice of intent to file habitual criminal charges, when the
prosecution had stated that no habitual criminal charges would be filed if he waived his
preliminary hearing (sub-claim 5); request a postponement of the preliminary hearing to
determine if the prosecution’s actions in coercing and/or inducing Applicant to waive his
preliminary hearing constituted illegal and/or unethical behavior (sub-claim 6); and, in
failing to argue that the prosecution had illegally coerced and/or induced Applicant’s
waiver of the preliminary hearing (sub-claim 7).

26

Contrary to Applicant’s assertions, the state court record reflects that the
prosecution’s offer to forgo habitual criminal charges was contingent upon Applicant’s
acceptance of a plea, not his waiver of the preliminary hearing. At a September 11, 2008
pre-trial hearing, the state district court inquired about the status of plea negotiations.
(State Court R., 9/11/08 Hrg. Tr. at 3). The prosecutor explained that he and defense
counsel had an “agreement” that the prosecution would “hold off” on filing habitual
charges until the disposition hearing, which was the next scheduled court appearance.
(Id.). The prosecutor further stated that “if we do not have a disposition at the next court
date those charges, in all likelihood, will be filed and we’ll proceed to trial.” (Id.). The
trial court told Applicant that he had “a lot to discuss with [his] attorney,” and Applicant
confirmed that he understood. (Id. at 3-4). Applicant then waived a preliminary hearing.
(Id. at 5). Prior to the waiver, defense counsel informed the trial court that she had
discussed the waiver with Applicant “at length” the night before. (Id.). The court gave
its own advisement and Applicant confirmed that he understood and wished to enter a
waiver. (Id. at 4-5). The trial court found that Applicant was knowingly, intelligently and
voluntarily waiving his right to a preliminary hearing. (Id.at 5). The case was set for
plea disposition on October 21, 2008. (Id.).
The parties appeared in court again on October 21, 2008 and informed the court
that they had failed to reach a plea disposition. (State Court R., 10/21/08 Hrg. Tr. at 2).
The prosecution stated that habitual criminal charges had been filed that morning. (Id.).
Defense counsel acknowledged “[w]e were aware that was coming, Judge.” (Id.).

27

Because the underlying premise of IAC sub-claims 7, 8 and 9 is refuted by the
state court record, the claims are not substantial under Martinez. See Lafler v. Cooper,
123 S.Ct. 1376, 1386 (2011) (recognizing that an IAC claim fails if the underlying premise
on which it is based lacks merit). Moreover, any claim by Applicant that he was unaware
that habitual criminal charges may be filed against him if he rejected the proffered plea
agreement is also belied by the state court record. Applicant was present in court for
both the September 11 and October 21, 2008 hearings.

As such, IAC sub-claims 7, 8

and 9 will be dismissed as procedurally barred.
d. sub-claim 8
In sub-claim 8, Applicant contends that counsel failed to adequately argue that the
evidence used against him was seized illegally. (Docket No. 1 at 25). In his opening
brief on appeal in the state post-conviction proceeding, Applicant asserted that counsel
rendered deficient performance by failing to play “in open court” a video of the suitcase
being carried in and out of the 7-Eleven. (Docket No. 10-9 at 22). Applicant maintained
that the suitcase was not open when it was placed outside, contrary to the police officer’s
testimony at the suppression hearing. Applicant further asserted in his state court
appeal that defense counsel should have accused the police officer witness of “perjury”
by arguing that the video contradicted the officer’s testimony. (Id.).
As discussed previously, defense counsel filed a motion to reopen the suppression
hearing before trial. See Section III.A., supra. Counsel contended in the motion that
“footage of the video at normal speed shows evidence that directly contradicts Officer
Baxter's testimony at the motions hearing . . . in regards to the search conducted of the

28

suitcase.” (Id. at 150). Counsel further argued:
The video clearly shows the suitcase is zipped when it is placed
outside of the store, prior to Officer Baxter searching the suitcase. No one is
shown unzipping the suitcase on the video. It also shows Officer Baxter
putting on gloves prior to approaching the suitcase, further the video seems
to show Officer Baxter touching and/or moving the suitcase. The video does
not seem to show Officer Baxter coughing after being near the suitcase.
The video does not seem to show a flashlight being used by Officer Baxter,
which he testified to using at the motions hearing.
In order to ensure Mr. Fuller's constitutional rights under the Fourth
Amendment of the United States Constitution and Article II §7 of the
Colorado Constitution, the motions hearing evidence must be reopened
with a hearing and the opportunity for cross examination.
(Id. at 151).
The state court record demonstrates that defense counsel zealously argued to
reopen the suppression hearing based on the slower speed video surveillance footage.
Moreover, Applicant does not explain why the trial court would have ruled differently had
the court played the surveillance tape in open court, as opposed to reviewing it in
chambers. Nor does Applicant explain how accusing the police officer of “perjury,” in
addition to arguing that the videotape contradicted the officer’s testimony, would have
resulted in a favorable outcome.
The Court has reviewed the copy of the surveillance videotape that was submitted
by Respondents as part of the state court record, as well as the video still shots. (See
State Court R., at Docket No. 24 (surveillance video); State Court R., 3/9/09 Hrg. Exhibits
(video still shots); see also Docket No. 23-4). The video footage is inconclusive as to
whether suitcase was partially unzipped (as the officer testified), or fully zipped, when it
was placed outside the 7-Eleven store. (See id).

29

The Court finds and concludes that IAC sub-claims 7, 8 and 9 lack merit.
Consequently, the claims are not substantial under Martinez and will be dismissed as
procedurally defaulted.
e. sub-claims 9 and 10
In sub-claims 9 and 10, Applicant asserts that defense counsel failed to argue that
the prosecution and the state trial court knew his convictions were obtained through the
use of perjured testimony. (Docket No. 1 at 25). In his opening brief on appeal in the
state post-conviction proceeding, Applicant asserted that: (1) the surveillance videotape
from the 7-Eleven store conclusively disproved the police officer’s testimony that the
suitcase was partially opened when he approached it; (2) the police officer therefore had
committed perjury when he testified to that effect; and, (3) the trial court and prosecutor
therefore knowingly allowed false testimony to be presented at trial, resulting in
Applicant’s conviction . (Docket No. 10-9 at 22).
As stated above, the surveillance videotape is inconclusive as to whether the
suitcase was partially open or fully zipped when the police officer approached it.
Accordingly, I find and conclude that IAC sub-claims 9 and 10 lack merit. Because the
claims are not substantial IAC claims under Martinez, they will be dismissed as
procedurally barred.
f. sub-claim 12
In sub-claim 12, Applicant argues that defense counsel failed to adequately argue
that the evidence used against him was knowingly and intentionally destroyed by law
enforcement personnel, thereby depriving him of the use of materially exculpatory

30

evidence at trial in order to prove his “actual innocence.” (Docket No. 1 at 25). In his
opening brief on appeal in the state post-conviction proceeding, Applicant asserted that
defense counsel failed to argue that the police lacked standard operating procedures
concerning the destruction of evidence; and, defense counsel should have argued that
Applicant’s fingerprints would not have been found on the items inside the suitcase if the
police had tested them. (Docket No. 10-9 at 24-25).
The state court record demonstrates that defense counsel did make the
arguments urged by Applicant. In November 2008, approximately four months before
trial, defense counsel filed a “Motion to Dismiss All Counts, or in the Alternative, Suppress
Evidence Based on an Illegal Destruction of Evidence.” (State Court R., Court File, at
92-95). In the motion, counsel argued that “[f]ailure to employ systemic procedures to
preserve evidence constitutes a violation of the defendant’s due process rights.” (Id. at
95). Counsel further maintained that the suitcase and its contents had apparent
exculpatory value before they were destroyed because “at no time did Mr. Fuller indicate
that he owned the suitcase, nor did he indicate that he knew what was inside of the
suitcase.” (Id. at 93). Counsel also asserted that “there is a clear possibility that some
of the items destroyed could have been tested for fingerprints or DNA.” (Id.).
The trial court rejected Applicant’s motion on the following grounds:
In this case, the responding members of the Task Force preserved thirteen
samples of all of the substances located on items in the suitcase for formal
chemical testing that are currently available for the defense to test. They
further photographed all containers and all items contained in the suitcase
as well as the suitcase itself. The items were then collected and destroyed
by the contracting hazardous materials company. The items were
destroyed due to the hazardous nature of many of the chemicals associated

31

with methamphetamine production. According to the prosecutions lay and
expert witnesses, many chemicals associated with the production of
methamphetamine are known to be both highly combustible and to contain
highly noxious fumes.
This court finds and concludes that the defendant has failed to satisfy the
second prong of the [People v.I] Greathouse, [742 P.2d 334 (Colo. 1987)]
test requiring that the evidence had exculpatory value that was apparent
before it was destroyed. This court agrees with the prosecution that a mere
claim by the defendant that the evidence may have had some possible
evidentiary value in terms of fingerprint testing or serology testing is not
enough to find a due process violation. The preservation of the suitcase and
other items destroyed by law enforcement would not have been dispositive
of the issue of whether the defendant knew the contents of the suitcase.
Further, there is no evidence to support an allegation of bad faith on behalf
of law enforcement. To the contrary, law enforcement followed procedures
similar to that of the DEA and EPA. Additionally three different eye
witnesses, including a Greeley Police Officer, observed the defendant in
direct possession of the suitcase and in fact carrying it around. These
observations are further supported by surveillance video which clearly
shows the defendant in possession of the suitcase, thus foreclosing any
argument that he was not in possession of the suitcase in which the
suspected methamphetamine lab was found.
(Id. at 141-42).
Applicant has not demonstrated that the trial court would have ruled differently had
counsel presented any additional arguments in support of the motion to suppress based
on the alleged intentional and illegal destruction of evidence. As such, IAC sub-claim 12
lacks merit, is not substantial under Martinez, and, therefore, will be dismissed as
procedurally barred.
g. sub-claim 14
In sub-claim 14, Applicant asserts that defense counsel should have used the still
shots from the enhanced surveillance videotape of the 7-Eleven to impeach and/or rebut

32

Officer Baxter’s testimony that the suitcase was partially open when he approached it and
looked inside. (Docket No. 1 at 25).
Officer Baxter testified at the suppression hearing and at trial that the suitcase was
unzipped about 10-12 inches and the opening was about one inch wide. (State Court R.,
12/9/08 Hrg. Tr. at 11; 3/10/09 Trial Tr. at 29-30). The officer’s testimony would not have
been refuted by the still shots of the videotape (Docket No. 23-4) because the quality of
the videotape and the distance of the surveillance camera from the suitcase did not allow
for a conclusive determination that the suitcase was fully zipped when Officer Baxter
approached it and looked inside. As such, counsel did not perform deficiently in failing to
use the still shots to attempt to impeach Officer Baxter. Further, there is no reasonable
probability that the outcome of the suppression hearing would have been different – i.e.,
that the contents of the suitcase would have been suppressed and no admitted as
evidence at trial – had counsel attempted to impeach Officer Baxter with the still shots.
The Court finds and concludes that IAC sub-claim 14 lacks merit. Therefore, the
claim is not substantial under Martinez and will be dismissed as procedurally barred.
h.

sub-claims 15, 16, 17 and 18

Applicant asserts in sub-claims 15 and 17 that defense counsel failed to inform him
that the prosecution and trial court violated his right to an impartial jury trial when they
engaged in ex parte communications with the jury after trial. (Docket No. 1 at 25). In
sub-claims 16 and 18, he argues that defense counsel failed to argue adequately that the
prosecution and trial court violated his right to an impartial jury trial when the prosecutor
and trial court engaged in ex parte communications with the jury after trial. (Id.).

33

After Applicant’s trial, defense counsel filed a motion to access the jurors’ contact
information to ask them if they had, during trial, been inadvertently exposed to Applicant’s
prior criminal history. (Docket No. 10-9 at 19-20; see also State Court R., Court File, at
246-47). The trial court granted the motion, but mailed a letter to the jurors stating that
(1) defense counsel was requesting their contact information in order to have an
investigator contact them; (2) as the court had orally instructed them prior to discharge,
they did not have to talk to anyone about their jury service if they did not want to; and (3)
if they did not want to be contacted about their service in this case, they could inform the
jury commissioner of that, in writing, within twenty-one days. (State Court R., Court File,
at 248-49). The court’s order required defense counsel to wait until the twenty-one days
had run before contacting the jurors. (Id.).
Defense counsel filed an objection asserting that the letter to the jurors was an
improper ex parte communication because Applicant had not been given a chance to
object to the letter before it was mailed. (Id. at 250-51). Defense counsel further
maintained that the trial court’s letter had “chilled” Applicant’s “right to determine if his
conviction is proper.” (Id. at 251).
After the twenty-one days had passed, the trial court informed the parties in a
written order that only four of the thirteen jurors had requested that they not be contacted.
(Docket No. 23-8). Attached to the order were the four jurors’ letters, along with a
complete juror contact list. (Id.).

34

In his opening brief on appeal in the state post-conviction proceeding, Applicant
argued that defense counsel had failed to “steadfastly pursue arguing” that the trial court
had committed misconduct by mailing the letter to the jurors. (Docket No. 10-9 at 25).
The state trial courts are required to instruct jurors upon their discharge that it is
entirely the jurors' decision whether to talk to anyone about the case or their service as a
juror. See People v. Harlan, 109 P.3d 616, 636 (Colo. 2005) (citing CJI–Crim. 1:06). In
addition, one of the purposes of Colorado Rule of Evidence 606(b)(addressing inquiries
into the validity of a verdict) is to protect jurors from harassment and coercion. See id.;
see also Stewart v. Rice, 47 P.3d 316, 322 (Colo. 2002).
Applicant cites no legal authority for the proposition that a trial court errs in mailing
a letter to jurors containing a written version of the same instruction that the jury received
from the trial judge upon discharge of their jury service. Consequently, Applicant has
failed to demonstrate that counsel’s failure to more steadfastly pursue her objection fellow
below an objective standard of reasonableness. Further, Applicant cannot establish that
he was prejudiced as a result of counsel’s alleged failure to press the issue. Nine of the
thirteen jurors agreed to be contacted by defense counsel about their service in
Applicant’s case. Applicant does not explain why access to nine of the jurors was
insufficient to enable the defense to determine whether the jury was accidentally exposed
to Applicant’s criminal history.
The Court finds and concludes that IAC sub-claims 15, 16, 17 and 18 lack merit,
are not substantial under Martinez, and, therefore, will be dismissed as procedurally
barred.

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i. sub-claim 19
For sub-claim 19, Applicant asserts that defense counsel should have argued that
the trial judge violated his right to a jury trial with regard to Count 3 of the Information, by
utilizing facts and evidence not presented to the jury “in order to substantially modify the
sentencing range of the charged count.” (Docket No. 1 at 25).
Count 3 of the Information charged Applicant with possession of chemicals or
supplies with intent to manufacture a controlled substance – schedule II, in violation of
§ 18-18-405(1), (2)(a)(I)(A), C.R.S. (2008). (State Court R., Court File, at 15). A
sentence enhancer charged that this was Applicant’s second offense involving drug
distribution or manufacturing. (Docket No. 10-1, at 2-3). Applicant was also charged as
a habitual offender with eight separate prior felony convictions. (State Court R., Court
File, at 40; see also id. at 50).
The jury found Applicant guilty of the substantive offense. (State Court R., Court
File, at 209).3 At the sentencing hearing, the trial court determined that the conviction
was Applicant’s second offense. (State Court R., 6/11/09 Sentencing Hrg. Tr., at 48-49,
51). The court also found that the prosecution had proven Applicant’s eight prior felony
convictions. (Id. at 51).
The second offense enhancer elevated the offense from a class 3 felony to a class
2 felony, see § 18-18-405(2)(a)(I)(B), C.R.S. (2008), and therefore increased the related
maximum presumptive range of imprisonment from 16 to 24 years. See
§ 18-1.3-401(1)(a)(V)(A) (2008). The habitual criminal enhancer then required the court

3 The Count was re-numbered as Count 1 for purposes of the jury instructions and verdict forms.

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to impose a sentence of four times the maximum of the applicable presumptive range.
See § 18-1.3-801(2) (2008). The court imposed a mandatory sentence of 96 years.
(State Court R., 6/11/09 Sentencing Hr. Tr., at 61).
Applicant maintains that counsel should have argued that his right to a jury trial
was violated when the sentencing court, rather than the jury, found that the second
enhancer had been proven. However, there is no constitutional right to a jury
determination of whether a prior conviction occurred. See Apprendi v. New Jersey, 530
U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond that prescribed by the statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.”); see also Butt v. Hartley, No. 10-1062,
378 F. App’x 822, 826 (10th Cir. May 18, 2010) (unpublished) (recognizing that Apprendi
and Blakely v. Washington, 542 U.S. 296 (2004) “clearly exempt judicial fact-finding
regarding prior convictions from the rule that only a jury may constitutionally find facts
which increase a defendant’s maximum sentence”).
Consequently, the Court finds that IAC sub-claim 19 lacks merit. Therefore, the
claim is not substantial under Martinez and will be dismissed as procedurally barred.
IV. ORDERS
For the reasons discussed above, it is
ORDERED that the Motion for Leave to File [Reply] Out of Time for Excusable
Neglect/Justifiable Excuse (Docket No. 37), filed on January 17, 2017, is GRANTED. It
is

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FURTHER ORDERED that the Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. ' 2254 (Docket No. 1), filed, pro se, by Applicant, Larry Fuller, April 19, 2016,
is DENIED and this action is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that no certificate of appealability shall issue because
Applicant has not made a substantial showing of the denial of a constitutional right. 28
U.S.C. ' 2253(c)(2); Fed. R. Governing Section 2254 Cases 11(a); Slack v. McDaniel,
529 U.S. 473, 483-85 (2000). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. 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 See Coppedge v. United States, 369 U.S. 438
(1962). If Applicant files a notice of appeal he must also pay the full $505 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.
Dated January 18, 2017, at Denver, Colorado.
BY THE COURT:

R. BROOKE JACKSON
United States District Judge

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