Gladney v. People of Colorado et al

Filing 34

ORDER of Dismissal. ORDERED that the Second Amended Application is denied and the action is dismissed. FURTHER ORDERED that no certificate of appealability will issue. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied with leave to re-file in the Tenth Circuit. FURTHER ORDERED that all pending motions 33 are denied as moot, by Judge Lewis T. Babcock on 8/27/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02745-BNB
WILLIAM LAWRENCE GLADNEY,
Applicant,
v.
MR. COPENHAVEN, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, William Lawrence Gladney, is a prisoner serving two consecutive life
sentences (one federal and one state) and a consecutive 11-year sentence. He is
currently incarcerated at the federal facility in Atwater, California. Mr. Gladney initiated
this action by submitting to the Court a pro se Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C.
§ 2254 on November 21, 2011. Mr. Gladney is challenging the validity of his conviction
and sentence in Case No. 04CR3586 in the Adams County District Court of Colorado.
The Court must construe liberally the Application filed by Mr. Gladney because
he 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.
I. Background and State Court Proceedings
Following a jury trial in the United States District Court for the District of

Colorado, Mr. Gladney was found guilty of a RICO violation, conspiracy to distribute and
possess with the intent to distribute a controlled substance, and a federal weapons
violation. See United States v. Hutchinson, 573 F.3d 1011, 1019 (10th Cir. 2009). He
was sentenced to two concurrent life sentences and a consecutive sentence of eleven
years. Id.
After Mr. Gladney’s federal conviction, he was convicted by a Colorado jury of
first degree murder and sentenced to life without parole, to be served consecutive to his
federal sentences. See People v. Gladney, 250 P.3d 762, 765 (Colo. App. 2010). Mr.
Gladney’s conviction was affirmed on direct appeal, see id., and the Colorado Supreme
Court denied certiorari review on October 18, 2010, see Pre-Answer Resp. at Ex. C.
On March 21, 2012, Mr. Gladney filed a post-conviction motion pursuant to
Colorado Rule of Criminal Procedure 35(c). Respondent indicates that the Rule 35(c)
motion remained pending in the state court as of July 16, 2012.
Mr. Gladney initiated this action by filing a “Memorandum” on October 21, 2011.
He filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 on
November 21, 2011. On December 8, 2011, the Court dismissed the action for Mr.
Gladney’s failure to file a certified copy of his inmate trust fund account statement.
Mr. Gladney filed a motion to reconsider on February 6, 2012. On February 13,
2012, the Court granted the motion to reconsider and re-opened Mr. Gladney’s case,
finding that Mr. Gladney had demonstrated that his case manager had inadvertently
provided him with an account statement that was not certified. On March 1, 2012,
Magistrate Judge Boland directed Mr. Gladney to file an Amended Application and
include a statement of the claims that he intended to raise in this Court. After receiving
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an extension of time, Mr. Gladney submitted an Amended Application on May 15, 2012.
On May 21, 2012, Magistrate Judge Boland determined that the Amended
Application was deficient because it was not on the Court-approved form, and because
Mr. Gladney again failed to include a statement of the claims that he intended to raise.
Therefore, Magistrate Judge Boland directed him to file a Second and Final Amended
Application. Mr. Gladney submitted a Second Amended Application to the Court on
June 26, 2012. In the Second Amended Application, Mr. Gladney asserts the following
claims: (1) his right against double jeopardy was violated by the Colorado state
conviction; and (2) the trial court erred in admitting evidence of his involvement in drug
dealing as res gestae. See Second Amended Application at 5-6.
On June 26, 2012, Magistrate Judge Boyd N. Boland entered an order directing
Respondents to file a Pre-Answer Response and 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 intend to raise either or both of those defenses.
Respondent the Attorney General of the State of Colorado submitted a Pre-Answer
Response on July 16, 2012. On August 6, 2012, Mr. Gladney submitted a pro se
document titled “Petition to Correct a Misnomer”, which the Court will construe as a
Reply.
In the Pre-Answer Response, Respondent concedes that Mr. Gladney’s Second
Amended Application is timely. However, Respondent argues that Mr. Gladney’s claims
are unexhausted in the state courts and are now procedurally defaulted.

II. Exhaustion and Procedural Default
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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. 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 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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A federal court is strictly limited in considering issues on habeas review when a
state court has deemed the issue procedurally barred. See Hammon v. Ward, 466 F.3d
919, 925 (10th Cir. 2006). A claim is precluded from federal habeas review when it has
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). “A state court remains free under [Michigan v. Long, 463 U.S. 1032 (1983)] to
rely on a state procedural bar and thereby to foreclose federal habeas review to the
extent permitted by [Wainwright v. Sykes, 433 U.S. 72 (1977)].” See Harris v. Reed,
489 U.S. 255, 264 (1989).
Respondent argues that Mr. Gladney has failed to exhaust Claims One and Two
because he did not raise these claims on direct appeal as asserting federal
constitutional claims. Upon review of Mr. Gladney’s opening brief on direct appeal, the
Court agrees that Mr. Gladney failed to satisfy the fair presentation requirement for
Claims One and Two. See Pre-Answer Resp. at Ex. G, p. 12-35. With respect to his
first claim (violation of double jeopardy), Mr. Gladney argued in the state courts that
Colorado had adopted a statute, Colorado Revised Statute § 18-3-301, which limited
the circumstances under which Colorado may prosecute a defendant for conduct
already prosecuted by the federal government. Id. at 12-21. He asserted that the
statutory conditions for prosecution under Colo. Rev. Stat. § 18-3-301 were not met in
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his case, and that the statute provides a complete defense to any subsequent state
prosecution. Id. In the claim he raises in this Court, Mr. Gladney now asserts that his
constitutional right against double jeopardy has been violated. However, the test for
whether a defendant has been charged twice for commission of the same crime, in
violation of double jeopardy, was set forth in Blockburger v. United States, 284 U.S. 299
(1932). In his claim in the state courts, Mr. Gladney did not discuss or apply the
Blockburger test; instead, he focused on the argument that the state court had violated
Colo. Rev. Stat. § 18-3-301 in prosecuting him. See Pre-Answer Resp. at Ex. G, p. 1221. Mr. Gladney relied primarily on Colorado state case law in developing his argument
that the trial court erred in denying his motion to dismiss the case. Id.
Likewise, with respect to Mr. Gladney’s second claim (trial court erred in
admitting evidence of his involvement in drug dealing), Mr. Gladney again relied on
Colorado state case law in developing this claim. Mr. Gladney argued in the state
courts that Colorado should abolish the res gestae doctrine and that the evidence of his
drug dealing was inadmissible under Colorado evidentiary rules. Id. at 17-25. While it
is true that the admission of evidence can rise to the level of a due process violation,
“the alleged error [must be] so grossly prejudicial that it fatally infected the trial and
denied the fundamental fairness,” before habeas relief is available. Bullock v. Carver,
297 F.3d 1036, 1055 (10th Cir. 2002) (quotations and brackets omitted); see also
Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (observing that “the Constitution
guarantees criminal defendants a meaningful opportunity to present a complete
defense” (quotations omitted)). In this case, Mr. Gladney did not develop a federal
constitutional argument that his due process rights were violated by the admission of
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evidence that rendered his trial “fundamentally unfair”. See id. Instead, he challenged
the admission of the evidence under Colorado state law. See Pre-Answer Resp. at Ex.
G, p. 22-35.
In order to allow the state courts the opportunity to act on or correct the
constitutional violations Mr. Gladney alleges, he must do more than just invoke magic
words which may possibly be interpreted to raise a constitutional claim. Instead, he
must provide legal theory explaining how the decisions of the state court violated the
particular federal constitutional rights he claims were violated. See, e.g., Anderson, 459
U.S. at 78 (claim on direct appeal that jury instruction was reversible error did not fairly
present due process challenge to instruction for habeas exhaustion purposes); Picard,
404 U.S. at 276-77 (holding that habeas petitioner failed to fairly present federal claim to
state court where, despite presenting all necessary facts, petitioner failed to assert
specific argument that he later tried to raise in federal court); see also Thomas v.
Gibson, 218 F.3d 1213, 1221 n. 6 (10th Cir. 2000) (holding that petitioner’s general
state court claim was insufficient to exhaust his later, more specific federal habeas
claim). Accordingly, the Court finds that Mr. Gladney has failed to exhaust state court
remedies for Claims One and Two, because he did not raise these claims as asserting
federal constitutional violations.
Moreover, with limited exceptions that are not applicable to these claims, the
Colorado Rules of Criminal Procedure bar Mr. Gladney from raising a claim in a postconviction motion that could have been raised on direct appeal, or that was already
raised on post-conviction appeal. See Colo. R. Crim. P. 35(c)(3)(VI) (“The court shall
deny any claim that was raised and resolved in a prior appeal or postconviction
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proceeding on behalf of the same defendant”); Colo. R. Crim. P. 35(c)(3)(VII) (“The
court shall deny any claim that could have been presented in an appeal previously
brought or postconviction proceeding previously brought”); see also People v. Bastardo,
646 P.2d 382, 383 (Colo. 1982) (stating that post-conviction review is not available to
address under a recently contrived constitutional theory issues that were raised
previously). Therefore, the Court finds that Mr. Gladney has procedurally defaulted
Claims One and Two.
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.” Fairchild v. Workman, 579 F.3d 1134, 1141 (10th Cir. 2009)
(citing Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008) cert. denied 130 S. Ct.
238 (2009)); see also 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. Gladney’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. Gladney 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
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for a claim was not reasonably available to [applicant].” McCleskey v. Zant, 499 U.S.
467, 493-94 (1991) (internal quotation marks omitted).
Mr. Gladney has failed to show cause for the default and actual prejudice as a
result of the alleged violation of federal law or demonstrate that failure to consider his
claims will result in a fundamental miscarriage of justice. As a result, Mr. Gladney’s
claims are procedurally barred from federal habeas review and this action will be
dismissed.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Applicant files a notice of appeal he must also pay the full $455 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Second Amended Application is denied and the action is
dismissed because Applicant’s claims are procedurally barred. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied with leave to re-file in the Tenth Circuit. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 27th day of

August

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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