Bynum v. People of the State of Colorado, The

Filing 24

Amended 22 ORDER to Dismiss in Part and for Answer. Claim One and the discovery issue in Claim Two are procedurally barred from federal habeas review and dismissed from this action. Within thirty days Respondents are directed to file an answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases. Within thirty days from the date of this Order the Respondents shall file with the Clerk of the Court a copy of the complete record of Mr. Bynum's state court proceedings. Respondent Catherine P. Adkisson is dismissed as an unnecessary party to the action, by Chief Judge Wiley Y. Daniel on 4/29/11. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 10-cv-02916-WYD
CECIL BYNUM,
Applicant,
v.
WARDEN MILYARD, and
CATHERINE P. ADKISSON, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

AMENDED ORDER TO DISMISS IN PART AND FOR ANSWER

I.

Background
Applicant Cecil Bynum is in the custody of the Colorado Department of

Corrections at the Sterling, Colorado, Correctional Facility. Mr. Bynum, acting pro se,
has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. In
an order entered on February 1, 2011, Magistrate Judge Boyd N. Boland directed
Respondents to file a Pre-Answer Response limited to addressing 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 intend to raise either or both
of those affirmative defenses in this action. On February 22, 2011, Respondents filed
their Pre-Answer Response. Mr. Bynum filed a Reply on March 11, 2011.
Mr. Bynum was convicted by a jury of possession of more than one gram of a
schedule II controlled substance (cocaine) in Denver County District Court Case No.
05CR1502 and was sentenced as an habitual criminal to twenty-four years of

incarceration. Mr. Bynum filed a direct appeal that was denied by the state’s highest
court on August 4, 2008. The conviction, therefore, was final on November 2, 2008.
See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Mr. Bynum filed a Colo. R.
Crim. P. 35(c) postconviction motion on September 4, 2008, in which a petition for
certiorari review was denied on November 15, 2010.
Mr. Bynum asserts three claims in the Application, including: (1) a violation of his
due process rights and ineffective assistance of counsel regarding the loss of
transcripts; (2) a violation of his due process rights and an ineffective assistance of
counsel regarding discovery; and (3) a violation of his due process rights and an
ineffective assistance of counsel regarding his arrest. Respondents concede in the PreAnswer Response that Mr. Bynum’s Application is timely and his ineffective assistance
of counsel claims stated in Claims Two and Three are exhausted, but they argue that
Claim One and the due process claim stated in Claim Two are procedurally defaulted in
state court.
II.

Analysis
The Court must construe liberally the Application and all other pleadings because

Mr. Bynum is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the
Court should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
A.

Exhaustion/Procedural Default

Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus
may not be granted unless it appears that the applicant has exhausted state remedies
or that no adequate state remedies are available or effective to protect the applicant’s

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rights. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is
satisfied once the federal claim has been presented fairly to the state courts. See
Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the
federal issue be presented properly “to the highest state court, either by direct review of
the conviction or in a postconviction attack.” Dever, 36 F.3d at 1534.
Furthermore, the “substance of a federal habeas corpus claim” must have been
presented to the state courts in order to satisfy the fair presentation requirement. Picard
v. Connor, 404 U.S. 270, 278 (1971); see also Nichols v. Sullivan, 867 F.2d 1250, 1252
(10th Cir. 1989). Although fair presentation does not require a habeas corpus petitioner
to cite “book and verse on the federal constitution,” Picard, 404 U.S. at 278 (internal
quotation marks omitted), “[i]t is not enough that all the facts necessary to support the
federal claim were before the state courts,” Anderson v. Harless, 459 U.S. 4, 6 (1982)
(per curiam). A claim must be presented as a federal constitutional claim in the state
court proceedings in order to be exhausted. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). The requirement of exhaustion of state remedies in federal
habeas cases dictates that a state prisoner must “give the state courts a full opportunity
to resolve any constitutional issues by invoking one complete round of the State's
established appellate review process.” O'Sullivan, 526 U.S. at 845.
“The exhaustion requirement is not one to be overlooked lightly.” Hernandez v.
Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). A state prisoner bringing a federal
habeas corpus action bears the burden of showing that he has exhausted all available
state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).

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In Claim One, Mr. Bynum contends that the record of a preliminary hearing was
either lost or not transcribed, specifically the portion of the hearing that involved Mr.
Bynum’s first attorney’s request to preserve the dashboard video from the arresting
police officer’s vehicle and the testimony of one of the arresting officers. Mr. Bynum
also asserts that the trial court and the Colorado Court of Appeals (CCA) violated his
due process rights because neither court would address his request for the preliminary
hearing transcript. Mr. Bynum further contends that his second appointed attorney was
ineffective in not having the preliminary hearing proceeding transcribed to determine the
consistency of the arresting officer’s testimony at trial.
The Court has reviewed Mr. Bynum’s opening brief in the appeal of his Colo. R.
Crim. P. 35(c) postconviction motion. Although the brief is repetitive and disjointed, it is
clear that Mr. Bynum did not assert in the brief the issues he raises in Claim One. In the
brief, Mr. Bynum asserted that the second-appointed trial counsel was ineffective in not
determining whether the police car had a dashboard video camera and in not seeking
testimony from the other four officers who were present during his arrest.
The other issues Mr. Bynum raised include: (1) postconviction court’s abuse of
discretion in construing his request for a loan of transcripts as a Rule 35(c)
postconviction motion; (2) trial court’s error in not addressing his previous municipal
trespass tickets; and (3) a due process rights violation because his identification records
and personal property were seized and not returned to him for thirteen months.
Although in the opening brief Mr. Bynum did discuss his inability to obtain the
transcript of the preliminary hearing, he did not raise a violation of his due process rights
with respect to this claim. Mr. Bynum also concedes that the due process claims he

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raised in his opening brief did not relate to his preliminary hearing due process
violations. Reply at 8. He further concedes that he did not raise an ineffective
assistance of counsel claim regarding the police officer’s inconsistent statements in the
trial court. Reply at 5. Mr. Bynum, however, argues that he was not required to raise
either the due process claim or the ineffective assistance of counsel claim until it was
determined that a transcript of the preliminary hearing either was lost or did not exist.
To the extent Mr. Bynum raised the due process and ineffective assistance of
counsel claims (asserted in Claim One) in his reply and petition for rehearing on appeal,
the United States Court of Appeals for the Tenth Circuit has found that raising an issue
in a reply brief is “too late” for an appeal court to consider the issue. See Bethurum v.
Zavaras, 2009 WL 3601242, No. 08-1267 (10th Cir. (D. Colo.) Nov. 3, 2009) (not
selected for publication) (citing People v. Czemerynski, 786 P.2d 1100, 1107 (Colo.
1990)). In Czemerynski, the Colorado Supreme Court, relying on 9 Wright and Miller,
Federal Practice and Procedure § 3974 (1977) (issue not raised in original brief
normally not considered by court), refused to consider an argument on appeal that was
not raised at trial or in a defendant’s opening brief. Id. at 1107; accord People v.
Salinas, 55 P.3d 268, 270 (Colo. App. 2002) (court refused to consider issue raised for
first time in reply brief). Mr. Bynum, therefore, has failed to present Claim One in a full
round of the State’s established appellate review process as required by O’Sullivan. As
a result the CCA did not address the issues in Claim One and the claim is not
exhausted.
In Claim Two, Mr. Bynum asserts that his due process rights were violated
because he was denied discovery regarding whether the patrol cars at the scene of his

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arrest had dashboard video cameras. The Court reviewed Mr. Bynum’s reply and
petition for rehearing on appeal to determine if he raised a due process claim regarding
the discovery issue. Although Mr. Bynum asserted in the reply and the petition that the
failure to preserve the discovery issue violated his due process rights, Mr. Bynum again
failed to present this claim in a full round of the State's established appellate review
process as required by O’Sullivan. Therefore, the Court finds that Mr. Bynum failed to
exhaust the due process issue in Claim Two.
Unexhausted habeas claims are precluded from federal habeas review when the
claims have been defaulted in state court on an independent and adequate state
procedural ground. Steele v. Young, 11 F.3d 1518, 1521 (10th Cir. 1993) (citations
omitted). “A state procedural ground is independent if it relies on state law, rather than
federal law, as the basis for the decision . . . . For the state ground to be adequate, it
must be strictly or regularly followed and applied evenhandedly to all similar claims.”
See Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (internal quotations and
citations omitted). Also, if it is obvious that an unexhausted claim would be procedurally
defaulted in state court the claim is held procedurally barred from federal habeas
review. Steele, 11 F.3d at 1524 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991); Harris v. Reed, 489 U.S. 255, 269-70 (1989)).
The Colorado Rules of Criminal Procedure prohibit successive postconviction
Rule 35 motions with limited exceptions. See Colo. R. Crim. P. 35(c)(3)(VI) and (VII).
The exceptions are not applicable to Claim One or the due process issued in Claim
Two. Id. For Mr. Bynum not to raise the ineffective assistance of counsel claim or the
due process claim until his reply or petition for rehearing on appeal, there is neither a

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basis for an event that took place after the initiation of his prior appeal or his
postconviction proceeding, or evidence that could not have been discovered through the
exercise of due diligence. See Rule 35(c)(3)(VI) and (VII).
A procedural default may be “excused through a showing of cause and actual
prejudice or a fundamental miscarriage of justice.” Jackson v. Shanks, 143 F.3d 1313,
1317 (10th Cir. 1998). Application of this procedural default rule in the habeas corpus
context is based on comity and federalism concerns. See Coleman v. Thompson, 501
U.S. 722, 730 (1991). Mr. Bynum’s pro se status does not exempt him from the
requirement of demonstrating either cause and prejudice or a fundamental miscarriage
of justice. See Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994).
Construing his Application and all other pleadings liberally, Mr. Bynum does not
argue any basis for finding prejudice and a miscarriage of justice. To demonstrate
cause for his procedural default, Mr. Bynum must show that some objective factor
external to the defense impeded his ability to comply with the state’s procedural rule.
See Murray v. Carrier, 477 U.S. 478, 488 (1986). “Objective factors that constitute
cause include interference by officials that makes compliance with the State’s
procedural rule impracticable, and a showing that the factual or legal basis for a claim
was not reasonably available to [applicant].” McCleskey v. Zant, 499 U.S. 467, 493-94
(1991) (internal quotation marks omitted). Ineffective assistance of counsel may
establish cause excusing a procedural default. Jackson v. Shanks, 143 F.3d 1313,
1319 (10th Cir. 1998). Mr. Bynum, however, must show “some objective factor external
to the defense impeded counsel’s efforts to comply with the State’s procedural rule” and
have “presented to the state courts as an independent claim before it may be used to

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establish cause for a procedural default.” Murray, 477 U.S. at 488-89.
A fundamental miscarriage of justice occurs when “a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at
496. A “substantial claim that constitutional error has caused the conviction of an
innocent person is extremely rare.” Schlup v. Delo, 513 U.S. 298, 324 (1995). In order
to demonstrate a fundamental miscarriage of justice, Mr. Bynum first must “support his
allegations of constitutional error with new reliable evidence--whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence- -that
was not presented at trial.” Id. Mr. Bynum then must demonstrate “that it is more likely
than not that no reasonable juror would have convicted him in light of the new evidence”
Id. at 327.
Mr. Bynum knew prior to filing his postconviction motion about trial counsel’s
failure to pursue the police officer’s inconsistent testimonies. As for Mr. Bynum’s
unavailable transcript claim, Mr. Bynum filed a motion for “loaner transcripts” as early as
December 21, 2007, and was well aware of the unavailable transcript prior to filing his
postconviction motion on September 9, 2008. To the extent Mr. Bynum’s preliminary
hearing transcript claim has merit, he was not precluded from raising the unavailable
transcript claim as a violation of his due process rights at the time he filed his
postconviction motion. Mr. Bynum fails to show that a factor external to the defense
impeded his ability to comply with the state’s procedural rule. He also fails to present
any new reliable evidence that demonstrates he is actually innocent. As a result, Claim
One and the discovery issue in Claim Two are barred in a federal habeas action.
III.

Conclusion

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Based on the above findings, it is
ORDERED that Claim One and the discovery issue in Claim Two are
procedurally barred from federal habeas review and dismissed from this action. It is
FURTHER ORDERED that within thirty days Respondents are directed to file an
answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases that fully
addresses the merits of the ineffective assistance of counsel issue in Claim Two and all
of Claim Three as identified above. It is
FURTHER ORDERED that within thirty days of the filing of the answer Mr.
Bynum may file a reply if he desires. It is
FURTHER ORDERED that within thirty days from the date of this Order the
Respondents shall file with the Clerk of the Court, in electronic format if available, a
copy of the complete record of Mr. Bynum’s state court proceedings in Case No.
05CR1502, including all documents in the state court file and transcripts of all
proceedings conducted in the state court, but excluding any physical evidence (as
opposed to documentary evidence) not relevant to the asserted claims. It is
FURTHER ORDERED that Respondent Catherine P. Adkisson is dismissed as
an unnecessary party to the action. It is
FURTHER ORDERED that the Clerk of the Court is directed to send copies of
this Order to the following:

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(1)

Clerk of the Court
Denver County District Court
1437 Bannock Street Room # 256
Denver, Colorado 80202;

(2)

Assistant Solicitor General
Appellate Division
Office of the Attorney General
1525 Sherman Street
Denver, Colorado 80203; and

(3)

Court Services Manager
State Court Administrator’s Office
101 W. Colfax, Ste. 500
Denver, Colorado 80202

Dated April 29, 2011, at Denver, Colorado.
BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE

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