Moore v. Lengerich et al
Filing
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ORDER DISMISSING 28 U.S.C. § 2254 PETITION FOR LACK OF JURISDICTION. ORDERED: 1. Petitioner's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 1 is DISMISSED for lack of subject matter jurisdiction, or, alternati vely, DENIED on its merits; 2. The Magistrate Judge's October 10, 2017 Recommendation 30 is VACATED AS MOOT, or, alternatively, ADOPTED;3. The Clerk shall enter judgment accordingly and shall terminate this case. All parties shall bear their own fees and costs, by Judge William J. Martinez on 6/15/2018. (dhans, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-1739-WJM-KMT
DAMEION MOORE,
Petitioner,
v.
JOSEPH LENGERICH, Warden, Buena Vista Minimum Center, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER DISMISSING 28 U.S.C. § 2254 PETITION FOR LACK OF JURISDICTION
Petitioner Dameion Moore (“Moore”) is a prisoner in the custody of the Colorado
Department of Corrections (“CDOC”). He seeks a writ of habeas corpus under
28 U.S.C. § 2254, claiming that his convictions in state court for possessing and
distributing the same quantum of illegal narcotics violate the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution. (ECF No. 1.) On October 10,
2017, United States Magistrate Judge Kathleen M. Tafoya issued a recommendation
that the Court deny Moore’s petition (“Recommendation”). (ECF No. 30.) Moore has
filed an objection (“Objection”). (ECF No. 31.) Respondents filed no response.
For the reasons set forth below, the Court finds that it lacks jurisdiction over
Moore’s petition because his eighteen-month sentence imposed on the possession
count had already been served when he filed the petition. Alternatively, the Court
agrees with the Magistrate Judge that Moore is not entitled to habeas relief.
I. BACKGROUND
In Colorado state court, a jury convicted Moore of possessing a controlled
substance in violation of Colorado Revised Statutes § 18-18-403.5, and also of
distributing a controlled substance in violation of Colorado Revised Statutes § 18-18405. (ECF No. 1 at 2.) Although there was some question in state-court proceedings
whether the jury had based its convictions on separate incidents (i.e., possessing a
particular quantum of drugs but distributing a different, discrete quantum of drugs) (see
ECF Nos. 1-4, 1-7), Respondents no longer dispute that the jury convicted for
possessing and distributing the same quantum of drugs (see ECF No. 26). The state
trial judge imposed a sentence of eighteen months on the possession count, and a
concurrent sentence of ten years on the distribution count. (ECF No. 1-1 at 2.)
Moore appealed to the Colorado Court of Appeals (“CCA”), arguing that his
double-conviction and double-sentencing for the same act violated the U.S.
Constitution’s Double Jeopardy Clause. (See ECF No. 1-3.) For reasons discussed in
more detail below, the CCA disagreed, finding that the Colorado Legislature intended
distribution and possession to be charged and punished separately, and such legislative
intent nullified any Double Jeopardy objection. (See ECF No. 1-1 at 3–5.)
About two weeks later, Moore petitioned the CCA for rehearing. (ECF No. 5.) A
few days after Moore filed that petition, the Colorado Supreme Court issued People v.
Davis, 352 P.3d 950 (Colo. 2015), which addressed an almost identical issue and held
that Double Jeopardy barred the double convictions—thus calling into doubt whether
the CCA had reached the correct conclusion in Moore’s case about the Colorado
Legislature’s intent. The CCA nonetheless denied the petition for rehearing, and, on
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April 18, 2016, the Colorado Supreme Court denied certiorari, with two justices
dissenting. (ECF No. 1-2.)
Moore did not institute state post-conviction collateral review proceedings, but
instead filed his § 2254 petition in this Court on July 7, 2016. (ECF No. 1.)
Respondents have explicitly waived any objection they may have based on Moore’s
choice not to pursue his claims through state collateral review. (See ECF No. 9 at 2;
ECF No. 13 at 1.)
On October 10, 2017, Judge Tafoya issued her Recommendation, reasoning that
this Court could not go behind the CCA’s conclusion that the Colorado Legislature had
authorized separate convictions and punishments for possession and distribution. (ECF
No. 30 at 7.) Moore timely filed his Objection. (ECF No. 31.)
II. STANDARD OF REVIEW
When a Magistrate Judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” The Court has therefore reviewed all the filings to date and has reached
its own independent conclusion in this matter. That review, however, prompted the
Court to question whether it has subject matter jurisdiction, as explained below. See
Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (“When a requirement goes to subjectmatter jurisdiction, courts are obligated to consider sua sponte issues that the parties
have disclaimed or have not presented. Subject-matter jurisdiction can never be waived
or forfeited.” (citation omitted)).
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III. ANALYSIS
A.
General Standards of § 2254 Review
Moore seeks a writ of habeas corpus under 28 U.S.C. § 2254(d):
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim—
(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.
This statutory scheme can be broken out into a series of questions:
1.
Is the petitioner in custody pursuant to the judgment of a state court?
2.
Was the claim on which the petitioner bases his or her petition adjudicated
on the merits in state court—or in other words, did the petitioner raise his
or her claim in state post-conviction proceedings?
3.
Did the state court’s decision on the petitioner’s claim contradict or
unreasonably apply federal law as established clearly by the United States
Supreme Court? Or, alternatively, did the state court’s decision on the
petitioner’s claim rely on an unreasonable determination of facts in light of
the evidence presented to the state court?
The parties’ filings and the Recommendation address only the first variant of the third
question: whether the state court contradicted or unreasonably applied clearly
established federal law. There is a serious question, however, regarding the first
question: whether Moore is “in custody” for purposes of his § 2254 petition.
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B.
“In Custody” in the Present Circumstances
“The custody requirement [under § 2254] is jurisdictional.” Mays v. Dinwiddie,
580 F.3d 1136, 1139 (10th Cir. 2009). Whether a § 2254 petitioner is “in custody” for
jurisdictional purposes is judged by: (1) identifying the conviction the petitioner
challenges and then (2) inquiring whether the petitioner was “incarcerated by reason of
[the challenged conviction] at the time the petition was filed.” Spencer v. Kemna, 523
U.S. 1, 7 (1998).
Here, Moore is challenging his possession conviction as unconstitutionally
duplicative of his distribution conviction. If the Court were to agree with Moore’s Double
Jeopardy argument, the result under Colorado law would be that his possession
conviction (and its eighteen-month sentence) would merge into his distribution
conviction, leaving only the distribution conviction (and its ten-year sentence). See
Davis, 352 P.3d at 958 (“When a jury convicts a defendant for both possession and
distribution of the same quantum of drugs, then, the trial court should merge the
possession conviction into the distribution conviction for sentencing.”). This reality may
suggest mootness, but that is a separate inquiry. See Spencer, 523 U.S. at 7. The
Court points out that Moore will serve a ten-year sentence no matter what, not to raise
the issue of mootness, but rather to emphasize that his Double Jeopardy challenge
cannot be considered a simultaneous attack on both his possession and distribution
convictions. His distribution conviction will stand, unaltered, regardless of what this
Court does with his possession conviction. So, to repeat, the conviction at issue is
Moore’s possession conviction and the accompanying eighteen-month sentence.
The judgment of conviction entered on December 13, 2012. (See ECF No. 1
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at 1.) Moore filed his § 2254 petition in this Court on July 7, 2016—three years, six
months, and twenty-four days later. By that time, Moore’s eighteen-month possession
sentence surely had been served.
If a habeas petitioner challenges a sentence that has been fully served, the
petitioner is not “in custody” with respect to that sentence even though the petitioner
continues to serve time under a concurrently imposed, unchallenged sentence. Mays,
580 F.3d at 1137, 1140–41. Thus, when Moore filed this § 2254 action, he was not
“in custody” for purposes of the statute, and the Court lacked jurisdiction to hear his
Double Jeopardy challenge to the possession conviction. His petition should therefore
have been dismissed at the outset on this basis.
C.
Merits Analysis
Even if the Court possessed jurisdiction, Moore’s petition would still fail on its
merits for the reasons explained below.
1.
Contradiction/Unreasonable Application Standard
Whether a state court decision contradicted or unreasonably applied clearly
established federal law requires several inquiries of its own:
First, does the petitioner seek 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. More specifically,
clearly established law consists of Supreme Court holdings
in cases where the facts are at least closely-related or
similar to the case sub judice. Although the legal rule at
issue need not have had its genesis in the closely-related or
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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).
Assuming clearly established law is at stake, the next question is 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. . . .
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. 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 (internal quotation marks and citations omitted; certain
alterations incorporated).
This 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 v. Boone, 468 F.3d 665, 671 (10th Cir. 2006).
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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. It 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 v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and citation
omitted; certain alterations incorporated).
“[E]ven a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. at 102. “Section 2254(d) reflects the view that
habeas corpus is a guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through appeal.” Id. at 102–03
(internal quotations marks omitted). 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.
With these standards in mind, the Court turns to Moore’s arguments.
2.
Double Jeopardy Generally
Understanding Moore’s Double Jeopardy challenge requires understanding the
current state of Supreme Court law on the Double Jeopardy Clause.
The Fifth Amendment to the United States Constitution states that no person
“shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” For
many years, courts inquiring whether this proscription had been violated followed the
“Blockburger standard,” named for Blockburger v. United States, 284 U.S. 299 (1932).
There, the Supreme Court held, “[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine whether
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there are two offenses or only one, is whether each provision requires proof of a fact
which the other does not.” Id. at 304.
Later, however, the Supreme Court explained that Blockburger established only
a federal-law “rule of statutory construction”:
The assumption underlying the rule is that Congress
ordinarily does not intend to punish the same offense under
two different statutes. Accordingly, where two statutory
provisions proscribe the “same offense,” they are construed
not to authorize cumulative punishments in the absence of a
clear indication of contrary legislative intent.
Whalen v. United States, 445 U.S. 684, 691–92 (1980). Thus, Congress may impose
multiple punishments for the same act (e.g., by prohibiting that act through separate
statutes) so long as Congress’s intent to do so is clear. See Albernaz v. United States,
450 U.S. 333, 344 (1981).
Blockburger, however, “is not a constitutional rule.” Missouri v. Hunter, 459 U.S.
359, 368 (1983) (“Hunter”); see also id. (“Thus far, we have utilized [Blockburger] only
to limit a federal court’s power to impose convictions and punishments when the will of
Congress is not clear.”). If a state legislature
specifically authorizes cumulative punishment under two
statutes, regardless of whether those two statutes proscribe
the “same” conduct under Blockburger, a court’s task of
statutory construction is at an end and the prosecutor may
seek and the trial court or jury may impose cumulative
punishment under such statutes in a single trial.
Id. at 368–69.
This is the clearly established Supreme Court precedent applicable to the case at
hand. Moore must establish that the CCA’s decision in his case “was contrary to, or
involved an unreasonable application of,” this precedent. 28 U.S.C. § 2254(d)(1).
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3.
Application to Moore’s Case
In deciding Moore’s appeal, the CCA announced the following legal standard: “an
accused may be convicted of multiple offenses arising out of the same transaction if the
General Assembly makes clear its intent to punish the same conduct with more than
one conviction and sentence. People v. Abiodun, 111 P.3d 462, 465 (Colo. 2005).”
(ECF No. 1-1 at 3.) The CCA’s citation to Abiodun is important for at least two reasons.
First, Abiodun held that, “[a]s long as the general assembly makes clear its intent
to punish the same offense with more than one conviction and sentence, it is not
constitutionally prohibited from doing so.” 111 P.3d at 465 (citing Hunter, 459 U.S. at
368–69). By citing this portion of Abiodun, the CCA identified the correct legal rule,
ultimately drawn from Hunter.
Second, Abiodun addressed a question very similar to the one faced by the CCA:
whether possession and distribution of the same quantum of drugs counts as one crime
or two. See Abiodun, 111 P.3d at 463–64. Importantly, at the time Abiodun was
decided, possession and distribution were both proscribed in the same statutory
section, namely, Colo. Rev. Stat. § 18-18-405(1)(a) (2000). See Abiodun, 111 P.3d at
464, 466. This was a crucial factor in the Colorado Supreme Court’s ultimate
conclusion that the Colorado Legislature did not intend possession and distribution to be
punished as separate crimes. See id. at 466 (“The entire range of conduct is
criminalized in a single subsection of a statute entitled simply, ‘Unlawful distribution,
manufacturing, dispensing, sale, or possession.’ (footnote omitted)); id. at 468 (“the
general assembly has . . . demonstrated an awareness that it can make clear its intent
to proscribe related activities as different crimes by naming each and segregating them
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in the criminal code, when it wishes to do so”).
This latter point was important to the CCA’s analysis in Moore’s case. After
Abiodun, but before Moore committed the conduct for which he was later convicted in
this case, the Colorado Legislature removed the simple possession offense from § 1818-405 and placed it by itself in a new location, § 18-18-403.5. See 2010 Colo. Legis.
Serv., ch. 259, §§ 3–4 (H.B. 10-1352). Noting this change, the CCA reasoned as
follows: “Because these offenses are described in different statutes and have different
titles, it is clear the legislature intended to punish these offenses separately.” (ECF No.
1-1 at 4.)
Moore disagrees with this reasoning, but Moore fails to grasp that his
disagreement does not raise a question of contradiction or unreasonable application of
“clearly established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). The CCA identified the correct rule from the U.S.
Supreme Court’s Hunter decision. In applying that rule, the CCA implicitly drew on
Abiodun’s reasoning regarding how to discern whether the Colorado Legislature stated
the specific intent to punish the same act under multiple proscriptions. But Abiodun’s
reasoning is an explanation of Colorado law about how to interpret legislative intent in
Colorado. If the CCA misapplied anything, it was only that, and such a misapplication
raises no question of federal law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990)
(“federal habeas corpus relief does not lie for errors of state law”).
At times, Moore has pointed to a statement in Meads v. People, 78 P.3d 290
(Colo. 2003), abrogated on other grounds by Reyna-Abarca v. People, 390 P.3d 816
(Colo. 2017), that a court inquiring whether the Colorado Legislature intended to doubly
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punish the same act must first look for “express legislative authorization,” and, if none
exists, “the court must ascertain whether the offenses are sufficiently distinguishable to
permit the imposition of multiple punishments.” Meads, 78 P.3d at 293. But this is only
a statement of Colorado law about how to discern the Colorado Legislature’s intent.
See id. (citing only Colorado case law in support of this two-step analysis). It is not a
statement of “clearly established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1). Moore does not point to, nor is this Court
aware of, any Supreme Court precedent clearly establishing the method by which state
courts must determine if their respective legislatures intended multiple proscriptions and
punishments to apply to the same act.
The distinction between clearly established federal law versus state law is also
why the Colorado Supreme Court’s later decision in Davis, supra, is irrelevant for
§ 2254 purposes. 1 In Davis, the Colorado Supreme Court faced the same question it
decided in Abiodun, although specifically from the perspective of whether simple
possession is a lesser included offense of distribution. 352 P.3d at 957–58. The
Colorado Supreme Court concluded that simple possession, despite its relocation to a
new statutory section, is a lesser included offense of distribution and therefore cannot
be punished separately. Id. at 957–58 & n.3.
Importantly, Davis did not say—nor could it establish as a matter of federal law—
1
The CCA decided Moore’s case on May 14, 2015. (See ECF No. 1-1 at 1.) The
Colorado Supreme Court decided Davis on June 1, 2015. The fact that Davis post-dated the
CCA’s decision does not, by itself, make Davis irrelevant. Assuming arguendo that Davis
announces a principle of law applicable here, the rule of Davis could still apply because Moore’s
conviction had not become “final” for habeas purposes when Davis was announced. At a
minimum, Moore’s time for seeking Colorado Supreme Court and U.S. Supreme Court review
had not expired. See 28 U.S.C. § 2244(d)(1)(A); Gonzalez, 565 U.S. at 150.
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that dual punishments for greater and lesser-included offenses violate the Double
Jeopardy Clause. Rather, after Hunter, it is clear that such dual punishments would not
violate the Double Jeopardy Clause if the state legislature intended to impose dual
punishments. Davis thus turned on legislative intent, and in this respect, the court had a
unique advantage because a Colorado statute establishes that a defendant “may not be
convicted of more than one offense if * * * [o]ne offense is included in the other.” Colo.
Rev. Stat. § 18-1-408(1)(a); see also Davis, 352 P.3d at 957 (“Although the legislature
may define multiple offenses and authorize multiple punishments based on the same
behavior . . . , a defendant may not be punished multiple times for the same conduct if
‘[o]ne offense is included in the other,’ § 18-1-408(1)(a), C.R.S. (2014).”). In other
words, the Colorado Legislature had already stated its clear intent that it did not intend
multiple punishments if one crime is a lesser included offense of another. The only
question for the Colorado Supreme Court, then, was whether simple possession was a
lesser included offense of distribution, and—applying Colorado law—the court held that
the answer was “yes.” So, as before, the outcome did not turn on application of federal
law established by the U.S. Supreme Court.
If Moore has any claim, it would be based on the CCA’s refusal to rehear the
case, or the Colorado Supreme Court’s refusal to grant certiorari, thus (apparently)
treating him differently than the defendant in Davis. However, he has not advanced this
claim. Moreover, “the Fourteenth Amendment does not assure uniformity of judicial
decisions or immunity from judicial error. Were it otherwise, every alleged
misapplication of state law would constitute a federal constitutional question.” Beck v.
Washington, 369 U.S. 541, 554–55 (1962) (internal quotation marks and citations
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omitted; alterations incorporated); cf. Cummings v. Sirmons, 506 F.3d 1211, 1237 (10th
Cir. 2007) (“. . . Cummings has cited to no United States Supreme Court decisions, and
our own independent research has failed to produce any, holding that a state court’s
erroneous application of state criminal law can result in a violation of a criminal
defendant’s equal protection rights.”).
In sum, the only clearly established federal law regarding Double Jeopardy, for
§ 2254 purposes, is Hunter’s charge that the intent of the state legislature controls. For
present purposes, this Court is thus limited to asking, “Did the state court look to the
specific intent of its legislature?” If the answer is “yes,” the inquiry ends. The Court has
no jurisdiction to hold that a state court reached the wrong conclusion under state law
regarding the state legislature’s intent, even if a later state supreme court decision
appears to show as much. It is simply not a question of misapplying federal law.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.
Petitioner’s Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 (ECF No. 1) is DISMISSED for lack of subject matter jurisdiction, or,
alternatively, DENIED on its merits;
2.
The Magistrate Judge’s October 10, 2017 Recommendation (ECF No. 30) is
VACATED AS MOOT, or, alternatively, ADOPTED;
3.
The Clerk shall enter judgment accordingly and shall terminate this case. All
parties shall bear their own fees and costs.
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Dated this 15th day of June, 2018.
BY THE COURT:
______________________
William J. Martinez
United States District Judge
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