Savajian v. Milyard et al

Filing 31

ORDER that all ineffective assistance of counsel claims asserted in Claim Three, except the sleeping jurors claim, are dismissed as procedurally barred. It is FURTHER ORDERED that within thirty days Respondents are directed to file an answer in com pliance with Rule 5 of the Rules Governing Section 2254 Cases that fully addresses the merits of Claims One, Two, and the remaining part of Claim Three. It is FURTHER ORDERED that within thirty days of the filing of the answer Mr. Savajian may file a reply if he desires. It is FURTHER ORDERED that no order for the state court record will issue as the record already has been secured by the Court, by Judge William J. Martinez on 1/30/2012. (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge William J. Martínez

Civil Action No. 11-cv-00913-WJM
GREGG J. SAVAJIAN,
Applicant,
v.
KEVIN MILYARD, Warden, Sterling Correctional Facility, and
JOHN SUTHERS, The Attorney General of the State of Colorado,
Respondents.

ORDER TO DISMISS IN PART AND FOR ANSWER

I. Background
Applicant Gregg J. Savajian is in the custody of the Colorado Department of
Corrections (DOC) at the Sterling, Colorado, Correctional Facility. Mr. Savajian, 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 April 13, 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 April 28, 2011, Respondents filed their Pre-Answer Response.
Subsequently, Mr. Savajian filed several motions, including a motion to amend.
Magistrate Judge Boland denied the motion to amend as unnecessary and instructed

Mr. Savajian to file either a reply or an amended application. Mr. Savajian filed a
request for clarification of the order to amend or reply. Magistrate Judge Boland again
directed Mr. Savajian to file either a reply or an amended application and granted an
extension of time to do so. Mr. Savajian filed a document on August 15, 2011, titled,
“Plaintiff’s Motion to Amend Habeas Corpus Pursuant to Federal Civil Rules of
Procedure, Rule 15(a)(1).” Doc. No. 20.
The Court construes the document as a Reply to Respondents’ Pre-Answer
Response, even though Mr. Savajian has captioned the document as a motion to
amend. Mr. Savajian also has submitted an Affidavit by his trial attorney, Renee
Cooper. Doc. No. 21. The Court will consider both the construed Reply and Affidavit in
determining the procedural posture of Claim Three.
Mr. Savajian was convicted by a jury of solicitation to commit first degree murder,
introduction of contraband, and possession of contraband in Jefferson County District
Court Case No. 03CR3131 and was sentenced to a total of twenty-four years in the
DOC. The Colorado Court of Appeals (CCA) affirmed Mr. Savajian’s conviction and
sentence. See People v. Savajian, No. 05CA0472 (Colo. App. Sept. 7, 2006). Mr.
Savajian filed a petition for certiorari review that was denied by the Colorado Supreme
Court (CSC) on March 12, 2007. Savajian v. People, No. 06SC767 (Colo. Mar. 12,
2007) (en banc).
Respondents assert, and Mr. Savajian does not deny, that he filed a Colo. R.
Crim. P. 35(c) postconviction motion on May 9, 2007, which he withdrew a short time
later. Mr. Savajian then filed a second Rule 35(c) postconviction motion, in which the
state district court conducted a hearing and denied the motion. The CCA affirmed the
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denial. See People v. Savajian, No. 08CA2485 (Colo. App. Oct. 21, 2010). Mr.
Savajian petitioned for a writ of certiorari from the CSC that was denied on February 22,
2011. Savajian v. People, 2010SC813 (Colo. Feb. 22, 2011).
Mr. Savajian asserts three claims in the Application, including:
(1) Violation of his Sixth and Fourteenth Amendment rights due to the
prosecution’s peremptory challenge against an African-American member
of the venire and to juror misconduct;
(2) Violation of his Fifth, Sixth, and Fourteenth Amendment rights due to
perjured testimony, mistaken in-court identification, and prosecutor
misconduct; and
(3) Violation of his right to effective assistance of trial counsel including:
(i) Failure to conduct an adequate investigation until two
weeks prior to trial;
(ii) Failure to prepare proper defense in that he was late to
every hearing and unprepared for trial;
(iii) Failure to obtain and present witnesses with exculpatory
testimony;
(iv) Failure to object to the mistaken identity by State’s only
eyewitness;
(v) Failure to object to sleeping jurors;
(vi) Failure to object to multiple instances of prosecutorial
misconduct;
(vii) Failure to investigate and provide transportation for
exculpatory defense witness;
(viii) Failure to object to prejudicial closing;
(ix) Failure to protect him from assault by other deputies
after his arraignment;
(x) Failure to secure refuted testimony against allegations by
State’s witness;
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(xi) Failure to object to misrepresentation of material
evidence; and
(xii) Failure to object to trial court’s exclusion of jury
instructions on a lesser charge.
Respondents concede the action is timely but contend that all the subclaims
under Claim Three, except for the sleeping jurors claim, are barred from federal habeas
review.
II. Analysis
The Court must construe liberally the Application, Reply, and other pleadings,
because Mr. Savajian 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.
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
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. People, 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
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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, 36566 (1995) (per curiam).
“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).
Respondents argue that the only ineffective assistance of counsel claim that was
raised and resolved in state court is trial counsel’s failure to alert the trial judge about
the sleeping jurors. Respondents contend that Mr. Savajian raised four claims of
ineffective assistance of counsel at the state district court level, including trial counsel’s
failure to (1) conduct adequate investigation, (2) subpoena Mr. Savajian’s cellmate as a
witness, (3) adequately cross-examine the state’s witness, and (4) alert the trial judge
about the sleeping jurors; but only the sleeping jurors claim was addressed at the
evidentiary hearing.1 Respondents further contend that all claims except the sleeping

1

The Court notes that in Mr. Savajian’s postconviction motion he raised all of the
ineffective assistance claims that he now raises in this action. See Savajian, Case No.

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jurors claim were procedurally defaulted because the claims were abandoned or waived
on appeal. Respondents also contend that Mr. Savajian fails to show a fundamental
miscarriage of justice in barring the claim from federal habeas review.
In his Reply, Mr. Savajian concedes that the ineffective assistance of counsel
claims not addressed in his Rule 35(c) postconviction motion now are procedurally
defaulted in state court. See Reply at 4. Mr. Savajian, however, asserts that because
of newly discovered evidence he has demonstrated a fundamental miscarriage of
justice, resulting in a basis for this Court to excuse the default.
The Court has reviewed Mr. Savajian’s opening brief in his Rule 35(c) appeal. In
the brief, counsel asserts that Mr. Savajian raised the following ineffective assistance of
counsel claims in his postconviction motion before the state district court: (1) failure to
conduct an adequate investigation into jail house logs and video surveillance to prove
state’s witness had limited access to Mr. Savajian, especially on the date Mr. Savajian
was to have solicited state’s witness to commit murder; (2) failure to subpoena Mr.
Savajian’s cellmate to testify in support of defense theory; (3) failure to adequately
cross-examine two prosecution witnesses; (4) failure to explore prosecution witness’s
inability to identify Mr. Savajian at court; (5) failure to impeach witness’s testimony
regarding his statements about Mr. Savajian’s girlfriend; and (6) failure to alert the trial
court that two jurors were sleeping during testimony. Pre-Answer Resp.,
Attach 11 at 6-8. Each of these claims also were presented to the CCA in the opening
brief. Id. at 9-17.

03CR3131, Flat File at 323-52.

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The CCA, however, only addressed the merits of the sleeping jurors claim
because counsel for Mr. Savajian announced at a hearing before the evidentiary
hearing that only ineffective assistance of counsel claim to be presented would be the
sleeping jurors claim. Pre-Answer Resp., Attach. 13 at 10. The district court then ruled
that unless Mr. Savajian supplemented the postconviction motion no other issues would
be addressed at the evidentiary hearing. Relying on state case law,2 the CCA found
that Mr. Savajian’s request, through counsel, for a evidentiary hearing and ruling on only
the sleeping jurors claim had the effect of abandoning or waiving the other claims.
A claim is held procedurally barred from federal habeas review if it is obvious that
an unexhausted claim would be procedurally defaulted in state court. Steele v. Young,
11 F.3d 1518, 1524 (10th Cir. 1993) (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 Mr. Savajian’s ineffective assistance claims. Id. Thus, all of Mr.
Savajian’s ineffective assistance claims, except the sleeping jurors claim, are subject to
an anticipatory procedural bar. See Anderson v. Sirmons, 476 F.3d 1131, 1139 n. 7
(10th Cir. 2007).

2

The CCA relied on Feldstein v. People, 410 P.2d 188, 191 (1966), abrogated on other
grounds by Deeds v. People, 747 P.2d 1266 (Colo. 1987), for the proposition that a moving
party must see to it that the court rules on a matter that he urges, and the trial court should be
afforded the opportunity to so rule. Otherwise, the matter will not be considered on a writ of
error. The CCA also based its decision on People v. Young, 923 P.2d 145, 149 (Colo. App.
1995), and People v. Ridenour, 878 P.2d 23, 28 (Colo. App. 1994), in which the CCA found that
if a defendant fails to request a ruling on an ineffective assistance of counsel claim from the trial
court the claim is waived on appeal as is his right to assert an error on appeal.

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As a general rule, federal courts “do not review issues that have been defaulted
in state court on an independent and adequate state procedural ground, unless the
default is 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, 501 U.S. at 730. A federal court may
proceed to the merits of a procedurally defaulted habeas claim if the applicant
establishes either cause for default and actual prejudice or fundamental miscarriage of
justice if the merits of a claim are not reached. See Demarest v. Price, 130 F.3d 922,
941 (10th Cir. 1997). Mr. Savajian’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).
To demonstrate cause for his procedural default, Mr. Savajian 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, 143 F.3d at 1319. Mr.
Savajian, 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 establish cause for a
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procedural default.” Murray, 477 U.S. at 488-89.
The Court has reviewed the state court record, specifically the transcript for the
postconviction evidentiary hearing regarding Mr. Savajian’s ineffective assistance of
counsel claims. See Case No. 03CR3131, Postconviction Hr’g Tr., Sept. 8, 2008.
During this hearing, Mr. Savajian asserted dismay with appointed counsel in not
proceeding with all the ineffective assistance claims that he had identified in his pro se
postconviction motion filed prior to counsel being appointed. Id. The postconviction
court denied Mr. Savajian’s request for new counsel and proceeded with the sleeping
jurors issue, which was the only issue presented by counsel. Id.
A claim that a collateral counsel failed to present all claims and ignored requests
to present certain claims is not sufficient to show cause for procedural default. See
Parkhurst v. Shillinger, 128 F.3d 1366, 1371 (10th Cir. 1997) (an applicant is not entitled
to assistance of counsel in a postconviction motion) (citing Pennsylvania v. Finley, 481
U.S. 551, 555 (1987)). Usually, “ineffective representation in state post-conviction
proceedings is inadequate to excuse a procedural default.” See Spears v. Mullin, 343
F.3d 1215, 1255 (10th Cir. 2003); Coleman, 501 U.S. at 757 (“[A]ny attorney error that
led to the default of [ ] claims in state court cannot constitute cause to excuse default in
federal habeas.”); Parkhurst, 128 F.3d at 1371; 28 U.S.C. 2254(i)

(Ineffectiveness of counsel in a state collateral postconviction proceeding is not a
ground for relief in a § 2254.)
Most recently, the United States Supreme Court found basis for ineffective
assistance of counsel in a state postconviction proceeding. See Maples v. Thomas, ---9

S.Ct. ----, 2012 WL 125438 (Jan. 18, 2012). The facts in Maples, however, easily are
distinguishable from those in this case. In Maples, the applicant’s attorneys did not
inform him that they had changed employment and were unable to represent him in
their new job. Maples, 2012 WL 125438, *4. Also, no other attorney from the law firm
moved to substitute counsel or inform the court of the change in applicant’s
representation. Id. The Supreme Court determined that applicant’s attorneys
abandoned him, left him unrepresented at a critical time in his postconviction
proceeding, and left him unaware of his need to proceed pro se, resulting in a failure to
file a timely appeal after the trial court denied the postconviction motion. Id. at *10-*15.
The Supreme Court also noted that applicant had been sentenced to death, appointed
attorneys in death penalty cases in Alabama are undercompensated and selected
based on low eligibility requirements, and neither attorney in this case had tried a
penalty phase of a capital case. Id.
In contrast, Mr. Savajian had representation in both the district court and the
appellate court in his postconviction proceeding. In the district court, his attorney
reviewed the merits of his claims and determined that only one of Mr. Savajian’s
ineffective assistance of counsel claims had merit. His attorney did not abandon him.
The district court had the opportunity to address Mr. Savajian’s concerns. Mr. Savajian
appeared before the court at the evidentiary hearing and he stated his concerns and
desire to proceed with all of the ineffective assistance claims.
As stated above, a collateral counsel’s refusal to present certain claims is not
sufficient to show cause for procedural default. See Parkhurst, 128 F.3d at 1371.
Therefore, officials did not interfere and cause compliance with the State’s procedural
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rule to be impracticable. The Court need not address whether Mr. Savajian has shown
prejudice because he has failed to demonstrate cause.
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). To
demonstrate a fundamental miscarriage of justice, Mr. Savajian 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. Savajian 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. Savajian asserts newly discovered evidence based on a statement by his trial
attorney that a state witness committed perjury. Mr. Savajian attached the trial
attorney’s statement to Document No. 21, an affidavit he prepared. The trial attorney’s
statement does not present any new reliable evidence that demonstrates Mr. Savajian
actually is innocent or show that a factor external to the defense impeded his ability to
comply with the state’s procedural rule. The trial attorney’s statement only goes to the
credibility of the state’s witness, which was already before the jury at trial. Nothing in
the statement is newly discovered evidence that would support a finding that Mr.
Savajian did not solicit the state witness to murder a sheriff deputy. As a result, all
ineffective assistance claims, except the sleeping jurors claim, are barred in a federal
habeas action.
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III. Conclusion
Accordingly, it is
ORDERED that all ineffective assistance of counsel claims asserted in Claim
Three, except the sleeping jurors claim, are dismissed as procedurally barred. 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 Claims One, Two, and the remaining part of Claim Three. It is
FURTHER ORDERED that within thirty days of the filing of the answer Mr.
Savajian may file a reply if he desires. It is
FURTHER ORDERED that no order for the state court record will issue as the
record already has been secured by the Court.
Dated this 30th day of January, 2012.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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