Rubin v. Archuleta et al
Filing
17
ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS by Chief Judge Marcia S. Krieger on 3/22/18. (pglov)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 17-cv-00224-MSK
JULI IRENE RUBIN,
Applicant,
v.
THE HONORABLE DAVID ANTHONY ARCHULETA,
BOULDER COUNTY COURT, BOULDER, COLORADO, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS
This matter is before the Court on the Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 (ECF No. 1) (“Application”) filed, through counsel, by Juli Irene Rubin
(“Applicant”). Applicant is challenging the validity of her judgment of conviction of County
Court, Boulder County, Colorado case number 15T327. After reviewing the entire record in this
action, the Court FINDS and CONCLUDES that the Application should be denied and the case
dismissed with prejudice.
I. BACKGROUND
On December 9, 2015, the Boulder County Court entered a judgment of conviction
against Applicant on a jury verdict finding her guilty of Driving Under the Influence Per Se,
Driving While Ability Impaired, and Failure to Obey a Traffic Control Device. (ECF No. 1-3 at
1
2). The trial court imposed a fine of $1,000.00 and sentenced Applicant to 48 hours of
community service.1 (ECF No. 1 at 2).
On direct appeal, the Boulder County District Court summarized the facts relevant to
Applicant’s conviction as follows:
Defendant was arrested on suspicion of driving under the influence
(“DUI”) on February 7, 2015. Officer Jeremy Simenson and Corporal Kevin
Marples of the University of Colorado Police Department stopped Defendant after
observing Defendant fail to stop at a red turn light. Officer Simenson smelled an
odor of alcohol on Defendant and observed Defendant had slow, slurred speech
and red, watery eyes. At the direction of Officer Simenson, Defendant performed
roadside maneuvers. Officer Simenson observed various clues that caused him to
conclude an arrest was appropriate for driving under the influence. Officer
Simensen advised Defendant according to Colorado’s Express Consent Law, and
Defendant elected to take a breath test. The Intoxilyzer 9000 (“I-9000”) testing
device reported a result of breath alcohol content (“BAC”) in the amount of .086
g/210L.
Defendant was charged with Driving Under the Influence Per Se, Driving
While Ability Impaired, and Failure to Obey a Traffic Control Device. The People
filed a December 3, 2015 Motion in Limine to exclude evidence challenging the
Colorado Department of Public Health and Environment’s (“CDPHE”)
determination that the I-9000 is a scientifically reliable instrument for testing
breath alcohol content, to which Defendant filed a Response. The case proceeded
to trial on December 8 and 9, 2015. At the outset of the trial, the trial court
granted the People’s Motion in Limine regarding the I-9000 and excluded
evidence challenging that the I-9000 was scientifically reliable. On December 9,
2015, the jury found Defendant guilty of Driving Under the Influence Per Se,
Driving While Ability Impaired, and Failure to Obey a Traffic Control Device.
(ECF No. 1-3 at 1-2).
On August 4, 2016, the Boulder County District Court affirmed Applicant’s judgment of
conviction. (Id. at 9). The Colorado Supreme Court denied Applicant’s petition for writ of
1
Two circuit courts have recognized that a community service obligation constitutes custody for habeas
corpus jurisdictional purposes under 28 U.S.C. § 2254. See Barry v. Bergen County Probation Dept., 128
F.3d 152, 161 (3d Cir. 1997); Nowakowski v. New York, 835 F.3d 210, 217 (2d Cir. 2016). See also
Nasious v. Two Unknown B.I.C.E. Agents at the Arapahoe County Justice Center, 657 F. Supp.2d 1218,
1229 n.5 (D. Colo. 2009) (recognizing that the Third Circuit has held that the habeas custody
requirement was satisfied by a community service obligation).
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certiorari on January 17, 2017. (ECF No. 1-5).
Applicant initiated this action on January 25, 2017, by asserting two claims in the
Application. First, she contends that the trial court violated her “Sixth Amendment right to
present a defense by precluding the presentation of evidence showing that the Certification of the
Intoxilyzer 9000 was false in that the required steps set forth in 5 CCR 1005-2(2013) had not
been completed.” (ECF No. 1 at 8). Applicant also asserts that the trial court violated her
“rights under the Sixth and Fourteenth Amendments in instructing the jury as to the Intoxilyzer
9000.” (Id. at 9).
On March 21, 2017, the Court rejected Respondents’ defense of exhaustion, and ordered
Respondents to file an answer that fully addresses the merits of both claims along with the
complete record of the state court proceedings. (See ECF No. 9). Respondents submitted the
state court record (ECF No. 12), and filed an Answer to Application (ECF No. 13) (“the
Answer”). On May 23, 2017, Applicant filed a Response to Colorado’s Answer (ECF No. 16)
(“the Traverse”).
II. STANDARD OF REVIEW
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) 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.
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28 U.S.C. § 2254(d). 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 Applicant seeks to apply
a rule of law that was clearly established by the Supreme Court at the time her conviction
became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law
“refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time
of the relevant state-court decision.” Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings in
cases where the facts are at least closely-related or similar to the
case sub judice. Although the legal rule at issue need not have had
its genesis in the closely-related or similar factual context, the
Supreme Court must have expressly extended the legal rule to that
context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established federal
law, that is the end of the Court’s inquiry under § 2254(d)(1). See id. at 1018.
If a clearly established rule of federal law is implicated, the Court must determine
whether the state court’s decision was contrary to or an unreasonable application of that clearly
established rule of federal law. See Williams, 529 U.S. at 404-05
A state-court decision is contrary to clearly established federal law
if: (a) “the state court applies a rule that contradicts the governing
law set forth in Supreme Court cases”; or (b) “the state court
confronts a set of facts that are materially indistinguishable from a
decision of the Supreme Court and nevertheless arrives at a result
different from [that] precedent.” Maynard [v. Boone], 468 F.3d
[665,] 669 [(10th Cir. 2006)] (internal quotation marks and
brackets omitted) (quoting Williams, 529 U.S. at 405). “The word
‘contrary’ is commonly understood to mean ‘diametrically
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different,’ ‘opposite in character or nature,’ or ‘mutually
opposed.’” Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable application of
clearly established federal law when it identifies the correct
governing legal rule from Supreme Court cases, but unreasonably
applies it to the facts. Id. at 407‑08.
House, 527 F.3d at 1018.
The Court’s inquiry pursuant to the “unreasonable application” clause is an objective
inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly. Rather that
application must also be unreasonable.” Id. at 411. “[A] decision is ‘objectively unreasonable’
when most reasonable jurists exercising their independent judgment would conclude the state
court misapplied Supreme Court law.” Maynard, 468 F.3d at 671. Furthermore,
[E]valuating whether a rule application was unreasonable requires
considering the 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 v. Richter, 562 U.S 86, 101 (2011) (internal quotation marks and citation omitted).
In conducting this analysis, the Court “must determine what arguments or theories supported or .
. . could have supported[] the state court’s decision” and then “ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of [the Supreme] Court.” Id. at 102. In addition, “review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on
the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
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Under this standard, “only the most serious misapplications of Supreme Court precedent
will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671; see also Richter, 562 U.S. at
102 (stating “that even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable”).
As a condition for obtaining habeas corpus from a federal court, a state prisoner
must show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.
Richter, 562 U.S. at 103.
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The Court reviews claims of 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
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 applicant bears the burden of rebutting the presumption by clear and convincing
evidence. “The standard is demanding but not insatiable . . . [because] ‘[d]eference does not by
definition preclude relief.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003)).
If a claim was not adjudicated on the merits in state court, and if the claim also is not
procedurally barred, the Court must review the claim de novo and the deferential standards of §
2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).
Finally, the Court’s analysis is not complete “[e]ven if the state court decision was
contrary to, or involved an unreasonable application of, clearly established federal law.” Bland
v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). “Unless the error is a structural defect in the
trial that defies harmless-error analysis, [the Court] must apply the harmless error standard of
Brecht v. Abrahamson, 507 U.S. 619 (1993) . . . .” Id.; see also Fry v. Pliler, 551 U.S. 112, 12122 (2007) (providing that a federal court must conduct harmless error analysis under Brecht
anytime it finds constitutional error in a state court proceeding regardless of whether the state
court found error or conducted harmless error review). Under Brecht, a constitutional error does
not warrant habeas relief unless the Court concludes it “had substantial and injurious effect” on
the jury’s verdict. Id., 507 U.S. at 637. “A ‘substantial and injurious effect’ exists when the
court finds itself in ‘grave doubt’ about the effect of the error on the jury’s verdict.” Bland, 459
F.3d at 1009 (citing O’Neal v. McAninch, 513 U.S. 432, 435 (1995)). “Grave doubt” exists when
“the matter is so evenly balanced that [the Court is] in virtual equipoise as to the harmlessness of
the error.” O’Neal, 513 U.S. at 435. The Court makes this harmless error determination based
upon a review of the entire state court record. See Herrera v. Lemaster, 225 F.3d 1176, 1179
(10th Cir. 2000).
III. ANALYSIS
A. Claim One
Applicant asserts the trial court violated her constitutional right to present a defense when
it excluded evidence showing that the certification of the Intoxilyzer 9000 (“I-9000”) was
fraudulently issued by the Colorado Department of Public Health and Environment—Laboratory
Services Division (“CDPHE”), because the CDPHE did not complete the required steps set forth
in 5 Colo. Code Regs. § 1005-2:1. (ECF No. 1 at 8). Respondents contend the state court
properly excluded evidence challenging the administrative process employed by the CDPHE to
certify that the I-9000 in general is a scientifically reliable instrument because admission of such
evidence would confuse the issues and mislead the jury. (ECF No. 13 at 15-18).
The Court must review whether the state appellate court’s determination of this issue was
contrary to, or an unreasonable application of clearly established federal law. As further
explained below, the Court finds that the state appellate court reasonably applied the relevant
standards established by the United States Supreme Court, and, appropriately concluded that
there was no federal constitutional error regarding the trial court’s exclusion of evidence.
1. Applicable federal law
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“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment . . ., or
in the Compulsory Process or Confrontation clauses of the Sixth Amendment . . ., the
Constitution guarantees criminal defendants a meaningful opportunity to present a complete
defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations and internal quotation marks
omitted). That includes the right to present relevant evidence. United States v. Scheffer, 523
U.S. 303, 308 (1998). Of course, “well-established rules of evidence permit trial judges to
exclude evidence if its probative value is outweighed by certain other factors such as unfair
prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South Carolina,
547 U.S. 319, 326 (2006) (citing Fed. R. Evid. 403); see also Crane, 476 U.S. at 689-90
(recognizing that “the constitution leaves the judges who must make these decisions ‘wide
latitude’ to exclude evidence that is ‘repetitive . . ., only marginally relevant’ or poses an undue
risk of ‘harassment, prejudice, [or] confusion of the issues.’”). The United States Supreme
Court, therefore, has recognized that the introduction of relevant evidence can be limited by the
State for valid reasons under well-established rules of evidence, but “[i]n the absence of any
valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of
the basic right to have the prosecutor’s case encounter and survive the crucible of meaningful
adversarial testing.” Crane, 476 U.S. at 689-91 (stating that “we have never questioned the
power of States to exclude evidence though the application of evidentiary rules that themselves
serve the interests of fairness and reliability—even if the defendant would prefer to see that
evidence admitted”); see also Montana v. Egelhoff, 518 U.S. 37, 53 (1996) (recognizing that a
constitutional right to present a complete defense does not provide “an unfettered right to offer
evidence that is incompetent, privileged, or otherwise inadmissible under standard rules of
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evidence”); Scheffer, 523 U.S. at 308 (holding that the rules of evidence restricting the ability to
present a defense cannot be “arbitrary” or “disproportionate”); Holmes, 547 U.S. at 326 (noting
that “[w]hile the Constitution thus prohibits the exclusion of defense evidence under rules that
serve no legitimate purpose or that are disproportionate to the ends that they are asserted to
promote” trial judges may rely on well-established rules of evidence, including Fed. R. Civ. 403
to exclude relevant evidence); Nevada v. Jackson, 569 U.S. 505, 509 (2013) (observing that
“[o]nly rarely” has the Supreme Court “held that the right to present a complete defense was
violated by the exclusion of defense evidence under a state rule of evidence.”).
2. State court proceedings
Before trial, the prosecution filed a motion in limine to exclude evidence challenging the
CDPHE’s determination that the I-9000 is a scientifically accurate and reliable instrument for
testing breath alcohol content. State Court R., at 129-36, 12/3/15 First Motion In Limine: I9000.
The trial court granted the motion in limine and excluded defense evidence challenging the
scientific reliability of the I-9000 device in general. State Court R., 12/8/15 Tr. at 5-14.
Applicant made an offer of proof to the trial court that the Director of Laboratory Services
Division of the CDPHE and signator on the certificate for the I-9000 used during Applicant’s
arrest would be called to testify that there is no document establishing “scientific standards of
performance” as required by 5 Colo. Code Regs. § 1005-2:1, 4.1.3.1. Id. at 14-15. Applicant
also proffered the “standard operating procedures for use of the Intoxilyzer 9000” as establishing
the “scientific standards of performance.” Id. at 15-17.
On direct appeal, Applicant asserted a denial of her right to present a defense when the
trial court prevented “the Defendant from challenging the alleged test result by showing that the
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certification was fraudulent as no standards of performance as required by 5 C.C.R. 10052(2013), § 4.1.3.1, had been established and therefor the certification of the instrument in
question as complaint with 5 C.C.R. 1005-2(2013) was false.” (ECF No. 1-2 at 12-14). She
further argued that the certificate providing that the I-9000 was scientifically reliable and
accurate “creates an irrational determination prohibited by law.” (Id. at 15).
The Boulder County District Court, sitting as an appellate court, construed the “precise
issue” as “whether Defendant should have been allowed to present evidence challenging whether
the CDPHE had established scientific standards of performance.” (ECF No. 1-3 at 3). The state
appellate court determined that while the establishment of scientific standards of performance to
certify the accuracy of the I-9000 in general has “some relevance . . . such general attack on the
administrative actions or inactions of the CDPHE would confuse the issues at trial, which
confusion substantially outweighs the probative value of such evidence under C.R.E. 403.” (Id.
at 3-4). The state appellate court further explained that nothing precluded Applicant from
offering evidence concerning the accuracy of the specific I-9000 used during her arrest,
including attacking the accuracy of the testing device used, the qualifications of the operator, or
how the test was administered. (Id. at 4). In finding no federal constitutional error, the state
appellate court stated as follows:
[t]he Supreme Court of Colorado held that the proper inquiry to determine
if the exclusion of defense impeachment evidence rises to the level of federal
constitutional error is “whether the trial court’s evidentiary ruling, in and of itself,
deprived the defendant of any meaningful opportunity to present a complete
defense.” Krutsinger v. People, 219 P.3d 1054, 1061 (Colo. 2009). However, not
every restriction on a defendant’s attempt to challenge the reliability of evidence,
nor every erroneous evidentiary ruling in favor of such a restriction, amounts to
federal constitutional error. Id. at 1062. The trial court has “wide latitude” to
make such restrictions by way of evidentiary rulings. Id. The standard for
determining whether the defendant’s right to present a defense has been violated
by a trial court’s evidentiary ruling depends upon his opportunity to subject the
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prosecutor’s case to “meaningful adversarial testing.” Id. A defendant’s right is
violated only when he is “denied virtually his only means of effectively testing
significant prosecution evidence.” Id.
Here, the Court’s exclusion of evidence regarding CDPHE’s “scientific
standards of performance,” or lack thereof, did not deprive Defendant of the “only
means of effectively testing” the accuracy of her BAC test result. The accuracy of
Defendant’s BAC test result is not dependent solely upon the scientific standards
of performance governing the certification of the I-9000, but depends upon
whether the device was operating properly and whether the test was properly
administered on the night in question.
As to the specific device’s operation, the record contains the “Intoxilyzer
9000 (I-9000) Instrument Performance Report” for Defendant’s EBAT, which
contained the calibration verification record, solution change record, calibration
adjustment record, 60-day exception message record, certification record, and
maintenance record for the I-9000, serial number 90-000367 used on Defendant.
Defendant was not deprived of meaningful adversarial testing of the accuracy of
the I-9000, number 90-000367, that was used on Defendant. Defendant also had
the opportunity to cross-examine Officer Simensen, the administrator of the BAC
test, in order to challenge the working order of the I-9000, as well as Officer
Simensen’s ability to properly operate the device. Defendant was therefore not
barred from “meaningful adversarial testing” of the accuracy of the BAC
determination. Accordingly, the Court finds no federal constitutional error.
(Id. at 4-5).
3. AEDPA standard of review
The Court finds the Boulder County District Court’s decision that the trial court did not
violate Applicant’s right to present a defense when it excluded evidence challenging the
certification of the I-9000 in general, was neither contrary to, nor an unreasonable application of
clearly established federal law.
As noted above, the relevant Supreme Court law consists of the general principles that
criminal defendants must be given a meaningful opportunity to present a complete defense, but
that “well-established rules of evidence permit trial judges to exclude evidence if its probative
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value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or
potential to mislead the jury.” See e.g., Holmes, 547 U.S. at 326.
Here, the trial court ruled in favor of the prosecution in excluding Applicant’s proffered
evidence regarding the validation and certification of the I-9000 as a scientifically reliable testing
device based on the CDPHE’s “scientific standards of performance” or lack therof. State Court
R., 12/8/15 Tr. at 5-17. The state appellate court agreed with the trial court’s decision, finding
that the probative value of this evidence was outweighed by the probability of confusing the
issues and misleading the jury. (ECF No. 1-3 at 4-5). The state appellate court further held that
exclusion of this evidence did not run afoul of federal law concerning a defendant’s right to
present a defense based on the evidentiary ruling at trial. (Id.)
Applicant has not demonstrated that the trial court’s decision to exclude evidence
pursuant to a well-established rule of evidence was arbitrary and disproportionate. Holmes, 547
U.S. at 324 (holding that the right to present a defense is abridged by evidence rules that are
arbitrary or disproportionate to the purposes they are designed to serve). Supreme Court
precedent makes clear that Applicant does not have an unfettered right to admit all evidence, and
that she must comply with established rules of evidence. Id. at 326; Montana, 518 U.S. at 53;
see also Dodd v. Trammell, 753 F.3d 971, 985-86 (10th Cir. 2013) (“[T]he Supreme Court has
never questioned the traditional reasons for excluding evidence that may have some relevance”
and has “only rarely” held that such a right “was violated by the exclusion of defense evidence
under a state rule of evidence.”). Citing Colorado Rule of Evidence 403, the state courts
exercised their “wide latitude” to exclude evidence concerning the CDPHE’s certification
process for the I-9000 in general. This decision is consistent with clearly established federal law,
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which has recognized that the National Highway Traffic Safety Administration has certified the
accuracy of the Intoxilyzer in admitting its test results at trial. See California v. Trombetta, 467
U.S. 479, 489 n.9 (1984) (recognizing the state department of health’s role in certifying the
Intoxilyzer as equipment of proven accuracy and reliability pursuant to accepted scientific
methods). See also United States v. Mason, 143 S. Supp.2d 1241, 1245-46 (D. Colo. 2001)
(explaining that “if the method of testing a breath sample is generally accepted in the scientific
community,” a failure to strictly comply “with Department of Health regulations does not
invalidate otherwise valid and reliable testing methods” in admitting the breath test results).
Moreover, as explained by the state appellate court, Applicant’s proffered evidence
concerning the certification process for the I-9000 in general was not probative of the accuracy
of the specific I-9000 instrument used during her arrest, and did not preclude Applicant from
introducing other evidence challenging the specific I-9000 used, had she chosen to do so. See
e.g., Miskel v. Karnes, 397 F.3d 446, 453-55 (6th Cir. 2005) (denying habeas claim alleging a
violation of the constitutional right to present a defense where the trial court refused to admit
proffered testimony challenging the general reliability of the breath test device because there is
no clearly established Federal law on the issue, and the trial court’s decision was not contrary to,
or an unreasonable application of clearly established Federal law). The state appellate court’s
assessment of the evidence was not irrational.
In light of the AEDPA deference this Court must apply to the state court determination,
the Court cannot find that the Boulder County District Court’s decision “was so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. The Court concludes
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that the state appellate court’s decision was not contrary to, or an unreasonable application of
clear Supreme Court precedent. Therefore, Applicant is not entitled to habeas relief on claim
one.
B. Claim Two
Applicant asserts that the trial court violated her rights under the Sixth and Fourteenth
Amendment in instructing the jury as to the I-9000. (ECF No. 1 at 9). She challenges the
following jury instruction:
There has been evidence introduced before you that an analysis of the
defendant's breath was made by means of an Intoxilyzer to determine the amount
of alcohol in the defendant's breath at the time of the alleged offense or within a
reasonable time thereafter.
The court takes judicial notice that such testing device is a scientifically
and legally reliable and accurate device for determining the alcoholic content of
the breath. A judicially noticed fact is one which the court determines is not
subject to reasonable dispute and which the court has accepted as true. You may
or may not accept this fact as true. You may weigh it as you would any other
evidence.
However, before you accept the results of such test, it must be established
by the prosecution as follows:
• That the testing device was certified by the Colorado Department
of Public Health and Environment;
• That the testing device was working properly;
• The operator was qualified to conduct the test;
• The test was administered following proper procedures.
If the jury finds that there was a failure to strictly comply with the rules
and regulations of the Department of Health in the obtaining of a breath sample,
the jury may give such failure such weight as the jury deems appropriate in
evaluating the weight, if any, to give the breath test.
(Id. at 9-10); State Court. R., at 17, Jury Instruction No. 16.
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Respondents contend the challenged jury instruction was proper because it stated that the
I-9000 is a scientifically and legally reliable and accurate device for determining the alcohol
content of breath, which is a legislative fact under the state statutory scheme that gives power to
the CDPHE to certify these machines. (ECF No. 13 at 19). Respondents further argue this
instruction properly placed the burden on the prosecution to show that the I-9000 was certified
by the CDPHE, that it was working properly, that the operator was qualified to administer the
test, and that the test was administered following proper procedures. (Id. 19-22). Respondents
also assert that the challenged jury instruction contained a permissive presumption, because “it
only informs the jury that the class of device is generally reliable and accurate, but that they may
accept or reject that fact,” and it “requires proof that the Applicant’s individual test was properly
administered by a certified operator on a certified machine.” (Id. at 22-23).
1. Applicable federal law
The Due Process Clause requires the prosecution to prove every element of a charged
offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). To
demonstrate a constitutional error from a jury instruction in a state criminal trial, a habeas
petitioner must show (1) an “ambiguity, inconsistency, or deficiency” in the instruction, and, (2)
that there was “‘a reasonable likelihood’” that the jury applied the instruction in a way that
relieved the State of its burden of proving every element of the crime beyond a reasonable doubt.
Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009) (internal quotation marks and citations
omitted). See also Victor v. Nebraska, 511 U.S. 1, 6 (1994) (explaining that the constitutional
inquiry is “whether there is a reasonable likelihood that the jury understood the instructions to
allow conviction based on proof insufficient to meet the Winship standard.”). However, “not
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every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due
process violation." Middleton v. McNeil, 541 U.S. 433, 437 (2004).
In making this determination, the jury instruction “‘may not be judged in artificial
isolation,’ but must be considered in the context of the instructions as a whole and the trial
record.” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141,
147 (1973)). A “slight possibility” that the jury misapplied the jury instruction is not enough.
See Weeks v. Angelone, 528 U.S. 225, 236 (2000). "[A]s a general rule, errors in jury
instructions in a state criminal trial are not reviewable in federal habeas corpus proceedings,
unless they are so fundamentally unfair as to deprive petitioner of a fair trial and . . . due process
of law." Patton v. Mullin, 425 F.3d 788, 807 (10th Cir. 2005) (quotation omitted); see also
Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (holding that in considering a habeas claim based
on an improper jury instruction, the court must ask "whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates due process, not merely whether the
instruction is undesirable [or] erroneous") (quotations omitted)). In short, the pertinent question
“is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction
violates due process.’” Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147). As such, "[a] §
2254 petitioner has a heavy burden in attempting to set aside a state conviction based on an
erroneous jury instruction." Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir. 1997).
2. State court proceedings
On direct appeal, the Boulder County District Court provided the following analysis of
Applicant’s jury instruction claim:
Defendant argues the jury was improperly instructed as to the accuracy of
the EBAT results, since there is no presumption of admissibility for an I-9000
result under Colorado law.
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[ . . .]
The trial court took judicial notice of the scientific reliability and accuracy
of the device, but gave no such instruction as to how the court viewed the results.
In fact, the instruction clearly states that before the jury accepts the results, it
must find the prosecution has proved the testing device was certified by CDPHE,
the device was working properly, the operator was qualified to conduct the
test, and the test was administered following proper procedures. Further, no
presumption flows from the judicially noticed fact in Jury Instruction 16. The
instruction plainly instructs the jury that it may or may not accept this fact as true
and should weigh it as it would any other evidence. Therefore, the Court finds the
trial court did not improperly instruct the jury that there is a presumption of
admissibility for an I-9000 result under Colorado law. Accordingly, the Court
finds no violation of due process.
Defendant argues it was improper for the trial court to take judicial notice
of the accuracy and reliability of the testing instrument.
Pursuant to section 42-4-1301(6)(c), C.R.S, in all judicial proceedings in
any court of this state concerning alcohol-related traffic offenses, “the court shall
take judicial notice of methods of testing a person’s alcohol or drug level and of
the design and operation of devices, as certified by the department of public
health and environment, for testing a person’s blood, breath, saliva, or urine to
determine such person’s alcohol or drug level.” However, such “shall not prevent
the necessity of establishing during a trial that the testing devices used were
working properly and that such testing devices were properly operated.” § 42-41301(6)(c), C.R.S.
Further, as stated in 5 C.C.R. § 1005-2:1.2, “The Colorado department of
public health and environment has determined that results obtained from the
certified EBAT instrument are scientifically accurate, precise, and analytically
reliable when the certified EBAT instrument is properly operated as described in
this rule.” Rules and regulations promulgated by a governmental agency pursuant
to the agency's statutory authority and published in an official state publication,
such as Code of Colorado Regulations, may be judicially noticed. One Hour
Cleaners v. Indus. Claim Appeals Office of State of Colo., 914 P.2d 501, 504
(Colo. App. 1995).
The Colorado Supreme Court, in Bowers, explained that the legislature
delegated the authority “to prescribe scientifically valid procedures for chemical
testing that will . . . provide sufficient reliability to the testing method as to avoid
the necessity of formal evidentiary proof on this aspect of the testing process.”
716 P.2d at 474 (“The legislature obviously believed that the testing methods
prescribed . . . would be reasonably reliable, thus justifying the court in taking
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judicial notice of the testing method and thereby dispensing with the requirement
of formal proof on that matter.”).
Based on the CDPHE’s determination that the EBAT instruments are
scientifically reliable when certified, and the legislature’s authorization for the
court to take judicial notice of the methods of testing a person’s alcohol and of
design and operation of devices, the Court perceives no error in the trial court’s
judicial notice of the reliability of the I-9000 and the jury instruction to such
effect. The jury instruction accurately states the law that, while the court takes
judicial notice of the methods of testing and operation of devices, the prosecution
still bears the burden to establish the devices were working and operated properly.
See § 42-4-1301(6)(c), C.R.S.
(ECF No. 1-3 at 5-7).
3. AEDPA standard of review
The Boulder County District Court denied Applicant relief for her federal due process
claim by deciding that there was no federal law error at all. Therefore, the deferential AEDPA
standard of review applies. See Eizember v. Trammell, 803 F.3d 1129, 1138 n.1 (10th Cir.
2015).
The Boulder County District Court explained that pursuant to C.R.S. § 42-4-1301(6)(c), a
court “shall take judicial notice of methods of testing a person’s alcohol or drug level and of the
design and operation of devices, as certified by the department of public health and
environment.” (ECF No. 1-3 at 6). The state appellate court further noted that the Colorado
Supreme Court has determined that based on the statutory scheme, a court may take judicial
notice of the testing method because the legislature delegated the authority “to prescribe
scientifically valid procedures for chemical testing that will . . . provide sufficient reliability to
the testing method as to avoid the necessity of formal evidentiary proof on this aspect of the
testing process.” (Id.). The Boulder County District Court then determined that the trial court’s
jury instruction:
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“clearly states that before the jury accepts the result, it must find the prosecution
has proved the testing device was certified by CDPHE, the device was working
properly, the operator was qualified to conduct the test, and the test was
administered following proper procedures;”
“plainly instructs the jury that it may or may not accept [the judicially noticed
fact] as true and should weigh it as it would any other evidence;”
“did not improperly instruct the jury that there is a presumption of admissibility
for an I-9000 result under Colorado law;” and
“accurately states the law that, while the court takes judicial notice of the
methods of testing and operation of devices, the prosecution still bears the burden
to establish the devices were working and operated properly.”
(ECF No. 1-3 at 6-7).
These determinations of state law are binding on this federal habeas Court. See
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (recognizing that “[a] state court's interpretation of
state law, including one announced on direct appeal of the challenged conviction, binds a federal
court sitting in habeas corpus.”). Applicant has not shown that the instruction contained “some
‘ambiguity, inconsistency, or deficiency,’” as required by Supreme Court law. See Waddington,
555 U.S. at 190-91.
Further, the jury was instructed on the elements of Driving Under the Influence Per Se
and Driving While Ability Impaired under Colorado law, and there was sufficient evidence to
support Applicant’s conviction. State Court R., at 10-13, Jury Instruction Nos. 9-12; 12/9/15 Tr.
at 97-111. Namely, testimony that she ran a red light, and that the officer who arrested her
observed bloodshot eyes, slurred speech, the odor of alcohol in her car, an inability to accurately
complete a task implicating short term memory in her car, and a failure of the standardized field
sobriety tests he administered to Applicant. State Court R., 12/9/15 Tr. at 21-46. As such, there
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is no reasonable likelihood that the jury applied the instruction regarding the I-9000 in a way that
relieved the State of its burden of proving every element of the crime beyond a reasonable doubt.
Applicant cannot obtain federal habeas relief on her second claim.
IV. Conclusion
In summary, the Court finds that Applicant is not entitled to relief on her claims because
she fails to demonstrate the state court rulings were “so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at 103. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2254 (ECF No. 1) is denied and this case is dismissed with prejudice. It is further
ORDERED that there is no basis on which to issue a certificate of appealability pursuant
to 28 U.S.C. § 2253(c).
Dated this 22d day of March, 2018.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
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