Harlan v. Dauffenbach

AMADEUS HARLAN, Applicant, v. WARDEN SCOTT DAUFFENBACH,and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

Civil Action No. 18-cv-00072-MSK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

February 19, 2019

Chief Judge Marcia S. Krieger

OPINION AND ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254

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, filed pro se by Applicant Amadeus J. Harlan. The Application challenges the validity of Applicant's criminal conviction in Case No. 2008CR1681 in the Jefferson County District Court in Golden, Colorado. After reviewing the Application, the June 11, 2018 Answer, the September 18, 2018 Reply, the December 24, 2018 Addendum, and the state court record, the Court FINDS and CONCLUDES that the Application should be denied and the case dismissed with prejudice.

The Court has determined that the Application can be resolved on the parties' briefing and that an evidentiary hearing is not necessary. Applicant's Request for an Evidentiary Hearing, ECF No. 30, therefore, will be denied. Furthermore, under Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts only when an evidentiary hearing is warranted is a judge required to appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A." Without a need for a hearing, Applicant's motions for appointment of counsel, ECF Nos. 29 and 33, will be denied as moot. Swazo v. Wyo. Dep't of Corr. State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994) (Decisions regarding appointment of counsel in habeas corpus proceedings generally are "left to the court's discretion.").

I. BACKGROUND

The Court first revisits the factual background set forth in the Colorado Court of Appeals (CCA) August 4, 2016 Opinion, which affirmed Applicant's conviction and sentence.

In the summer of 2007, defendant met R.S. when he and R.S. worked in the same office building. When they met, defendant claimed to be a former Denver Broncos player and told R.S. that he was starting his own company. He told R.S. that he wanted her to work for him, so R.S. filled out a job application and gave defendant a photocopy of her driver's license.

According to R.S., she and defendant also flirted and, occasionally, hugged and kissed. Although R.S. denied being in an "intimate relationship" "in the traditional sense," she did admit that, on one occasion, she had had sex with defendant in a car parked in a parking garage.

Later, in fall 2007, defendant went to Empire Lakewood Nissan (the Nissan dealership) to purchase a Nissan Maxima. There, defendant told an employee that he was a former Denver Broncos player, showed a tattoo of a Super Bowl emblem on his arm, and said that he wanted to buy the Maxima for a girlfriend. Defendant paid for the car with a check.

Within a short time, however, defendant's check bounced. At that point, the Nissan dealership's finance director contacted defendant to figure out how he wanted to pay for the Maxima. Defendant told the finance director that he would finance the vehicle in his girlfriend's name; that way, when he paid the loan balance in cash (once funds became available), the Maxima would be in his girlfriend's name.

To complete the loan transaction, defendant had a Nissan dealership employee follow him to R.S.'s office building. When they arrived, defendant introduced the employee to a woman. After the introduction, the employee told the woman that he had some documents that she needed to sign, but he did not tell her that the paperwork was for purposes of financing a car. Defendant then saidthat he wanted to speak with the woman alone, so he took the paperwork from the employee, and he and the woman walked to the back of the office space.

When the two returned, defendant gave the Nissan dealership employee the signed loan documents.

In December 2007, R.S.'s fiancé received a call from a bank about an unpaid loan on a Nissan Maxima. R.S. soon realized that defendant had used her information-obtained as part of R.S.'s job application process-to-obtain a loan to purchase the Nissan Maxima. She also learned that he used her information to obtain a loan to purchase a Chevy Avalanche in Arapahoe County (the Arapahoe County incident).

R.S. later filed a report with the police. She told an officer that she had given defendant her information as part of filling out a job application. However, she did not tell the officer that she had had sex with defendant.

Defendant was arrested and, in connection with the Nissan Maxima purchase (the transaction at issue in this case), charged with aggravated motor vehicle theft, section 18-4-409(2), (3)(b), C.R.S. 2015; identity theft, Ch. 326, sec. 1, § 18-5-902(l)(a), (f), 2009 Colo. Sess. Laws 1737; and nine habitual criminal counts. Defendant was also charged in connection with the Arapahoe County incident, but those charges were dismissed by the Arapaho County district attorney's office after a preliminary hearing.

At trial, defendant's theory of defense was that R.S. had agreed to finance the Nissan Maxima and had given him permission to sign her name on the loan documents. He contended that R.S. had fabricated her allegations because her fiancé would otherwise have learned that she had been having an affair with defendant.

At the close of evidence, defendant requested that the court instruct the jury on two lesser nonincluded offenses: forgery, section 18-5-102, C.R.S. 2015, and criminal impersonation, section 18-5-113, C.R.S. 2015.

The jury convicted defendant of the charged offenses and the lesser nonincluded offenses he requested. The trial court later found him guilty of the habitual criminal counts. The court sentenced defendant to forty-eight years in prison on the aggravated motor vehicle theft count, with all other sentences to run concurrently.

The People of the State of Colo. v. Amadeus Harlan, No. 15CA0101, 1-4 (Colo. App. Aug. 4, 2016); ECF No. 1-1 at 3-6.

Applicant initiated a 28U.S.C. § 2254 action in this Court on January 10, 2018. ECF No. 1. Magistrate Judge Gordon P. Gallagher directed Respondents to file a Pre-Answer Response and to address the affirmative defenses of timeliness under 28 U.S.C. § 2244(d), and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A) if Respondents intended to raise either or both in this action. ECF No. 5.

Respondents filed a Pre-Answer Response, ECF No. 12, on February 1, 2018. Applicant filed a Reply to the Pre-Answer Response, ECF No. 14, on February 12, 2018. On April 23, 2018, the Court entered an Order for Answer in Part, Dismissal in Part, and State Court Record, ECF No. 22. The April 23 Order dismissed Claim Six and the rape claim in Claim Three and directed Respondents to file an answer that addresses the remaining claims in Claim Three and Claims One, Two, Four, Five, Seven, and Eight. ECF No. 22 at 13.

The remaining claims for review on the merits are as follows:

1) The trial court violated Applicant's due process rights when it admitted evidence regarding a separate criminal case that had been filed against Applicant but ultimately was dismissed;

2) The trial court violated Applicant's due process rights when it allowed the prosecution to present inadmissible prior evidence;

3) The prosecution committed misconduct when it used language that inflamed the passions and prejudices of the jury, utilized improper propensity arguments, and misstated the evidence in closing arguments;

4) The trial court violated Applicant's due process rights when it allowed the prosecution to introduce inadmissible hearsay that negated a fact that was essential to Applicant's defense;

5) The trial court's cumulative errors denied Applicant his right to a fair trial under the state and federal constitutions;

7) The trial court violated Applicant's due process rights when it precluded defense counsel from contacting the jurors after the trial to obtain evidence that is clearly permissible under CRE 606(b); and8) Applicant was entitled to a jury trial on the habitual criminal charges.

ECF No. 1 at 2-36.

Respondents filed an Answer, ECF No. 31, on June 11, 2018, addressing the remaining claims on the merits. Applicant filed a Reply, ECF No. 32, on June 25, 2018, and an Addendum to his Response, ECF No. 34, on December 24, 2018. After reviewing the Application, Respondents' Answer, Applicants Reply and Addendum, and the state court record, the Court concludes that the Application should be dismissed with prejudice for the following reasons.

II. STANDARDS OF REVIEW

A. Pro Se Standard of Review

Applicant is proceeding pro se. The Court, therefore, reviews the Application liberally and holds the pleading "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) (citations omitted). 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). An applicant's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 958 (10th Cir. 2002).

B. 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

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