Duran v. Davis et al
Filing
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ORDER to Dismiss in Part: Claims 1, 4, and a portion of 3 are dismissed. Respondents are to file an answer within 30 days, and Applicant may file a reply within 30 days of the answer. By Judge Christine M. Arguello on 9/24/12. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-00877-CMA
RONALD DURAN,
Applicant,
v.
JOHN DAVIS, and
JOHN SUTHERS, Attorney General of the State of Colorado,
Respondents.
ORDER TO DISMISS IN PART
This matter is before the Court on the amended Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (Doc. # 9), filed pro se by Applicant, Ronald
Duran. Mr. Duran is challenging the validity of his conviction and sentence in Adams
County District Court case number 05CR3013.
On May 1, 2012, Magistrate Judge Boyd N. Boland ordered Respondents to file
a Pre-Answer Response limited to raising the affirmative defenses of timeliness under
28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C.
§ 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses in this
action. On June 20, 2012, Respondents filed their Pre-Answer Response (Doc. # 16)
arguing that Mr. Duran’s cognizable federal constitutional claims are unexhausted and
procedurally barred. On September 13, 2012, Mr. Duran filed a reply (Doc. # 23) to the
Pre-Answer Response.
The Court must construe the amended application and other documents filed
by Mr. Duran liberally 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 be an advocate for a pro se litigant. See Hall,
935 F.2d at 1110. For the reasons stated below, the Court will dismiss the action in
part.
I. BACKGROUND
Mr. Duran is a prisoner in the custody of the Colorado Department of Corrections
at the Sterling Correctional Facility in Sterling, Colorado. He was convicted by a jury
of robbery and third degree assault. After he subsequently was adjudicated to be an
habitual criminal, he was sentenced to twenty-four years in prison. The Colorado Court
of Appeals affirmed the judgment of conviction on direct appeal. See People v. Duran,
No. 07CA1744 (Colo. App. Apr. 30, 2009) (unpublished) (Doc. # 16-13.) On July 20,
2009, the Colorado Supreme Court denied Mr. Duran’s petition for writ of certiorari on
direct appeal. (See Doc. # 16-11.)
Following his direct appeal, Mr. Duran filed a number of letters and motions in the
trial court challenging the validity of his conviction. On August 12, 2009, Mr. Duran filed
a letter that the trial court construed as a motion pursuant to Rule 35(c) of the Colorado
Rules of Criminal Procedure and denied on August 25, 2009. (See Doc. # 16-1 at 9.)
On September 22, 2009, Mr. Duran filed a letter that the trial court construed as a
motion to reconsider the August 25, 2009 order and denied on October 5, 2009. (See
id. at 8.) On October 19, 2009, Mr. Duran filed a postconviction motion to vacate his
conviction that the trial court construed as a Rule 35(c) motion and denied on October
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23, 2009. (See id.) On May 12, 2010, Mr. Duran filed a postconviction Rule 35(c)
motion. (See id.) On May 17, 2010, the trial court denied the May 12 Rule 35(c) motion
for the following reason:
I have reviewed defendant’s most recent motion for
postconviction relief, filed May 12, 2010. This motion raises
the same issues previously asserted several times in prior
letters, motions, and a motion to reconsider. The motion is
DENIED for the same reasons previously stated. See
People v. Hartkemeyer, 843 P.2d 92 (Colo. App. 1992);
Crim. P. 35(c)(3)(VI); Crim P. 35(c)(3)(VII).
(Doc. # 16-9 at 2.)
On June 14, 2010, Mr. Duran filed a notice of appeal from the trial court’s May
17, 2010 order. (See Doc. # 16-1 at 8.) The Colorado Court of Appeals affirmed the
trial court’s order, reasoning that Mr. Duran’s claims “repeated the allegations raised
either in his previous motions or in his direct appeal” and, “[t]o the extent any of the
claims had not been raised previously, nothing prevented defendant from doing so.”
See People v. Duran, No. 10CA1205, slip op. at 5 (Colo. App. June 2, 2011)
(unpublished) (Doc. # 16-5 at 7). On October 24, 2011, the Colorado Supreme Court
denied Mr. Duran’s petition for writ of certiorari in the state court postconviction
proceedings. (See Doc. # 16-3.)
Mr. Duran asserts four numbered claims for relief in his amended application in
the instant action, each of which has various subparts. Mr. Duran contends in his first
claim for relief that the trial judge was biased against him in violation of his right to due
process. He specifically alleges in support of his first claim that the trial judge
misrepresented that Mr. Duran was not in the Adams County Jail on a certain date;
lacked subject matter jurisdiction to preside over Mr. Duran’s case; refused to dismiss
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the charges despite a violation of Mr. Duran’s Sixth Amendment rights; and presided
over Mr. Duran’s case even after recusing from the case. (See Doc. # 9 at 6.)
Mr. Duran contends in his second claim for relief that his Sixth and Fourteenth
Amendment rights were violated because of improper jury selection. He alleges in
support of his second claim that the prosecution improperly was allowed two extra
peremptory challenges; two jurors (“S” and “W”) were dismissed for cause without an
opportunity for questioning by the defense; and he was forced to use a peremptory
challenge to remove a juror (“R”) after the trial court improperly denied a defense
challenge for cause. (See id. at 7.)
Mr. Duran contends in his third claim that his Sixth and Fourteenth Amendment
rights were violated as a result of judicial bias. He alleges in support of his third claim
that the trial judge failed to grant a mistrial when three necessary and indispensable
defense witnesses failed to appear; refused to allow two police officers to testify; and
refused to admit hearsay statements from nontestifying law enforcement officers under
the residual hearsay exception. (See id. at 8.)
Mr. Duran’s fourth claim is an ineffective assistance of counsel claim. He alleges
in support of his fourth claim that counsel failed to object to an erroneous jury instruction; failed to conduct pretrial discovery; failed to appear for trial on December 4, 2006;
failed to secure Mr. Duran’s appearance for the December 4, 2006 trial date; was
biased against Mr. Duran after he filed a complaint against her; failed to present
anything on March 23, 2007; told Mr. Duran’s family that he would spend the rest of
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his life in prison if he did not take a plea deal; refused to allow Mr. Duran to view
discovery materials; lied in a March 7, 2007 letter; and did not do the minimum job
required by due process. (See id. at 9.)
II. ONE-YEAR LIMITATION PERIOD
Respondents do not argue that this action is barred by the one-year limitation
period in 28 U.S.C. § 2244(d).
III. EXHAUSTION OF STATE REMEDIES
Respondents do raise the affirmative defense of exhaustion of state court
remedies. More specifically, Respondents contend that claims one, three, and four in
the amended application are unexhausted and procedurally barred. The Court agrees
that claims one and four and part of claim three are unexhausted and procedurally
barred.
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. Kan. 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.
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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, 36566 (1995) (per curiam).
Finally, “[t]he 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).
The Court first considers whether Mr. Duran exhausted state remedies for any of
his claims on direct appeal. Mr. Duran raised three claims in his opening brief on direct
appeal. (See Doc. # 16-16.) He argued in his first claim on direct appeal that the
trial court erred in dismissing for cause two jurors (“S” and “W”) challenged by the
prosecution without allowing defense counsel to question those jurors, which he
contends resulted in the prosecution being afforded two extra peremptory challenges.
(See id. at 14-22.) As noted above, Mr. Duran raises this argument in his second claim
in the amended application. Although Respondents argue that Mr. Duran’s second
claim in this action does not raise a cognizable federal constitutional claim, the Court
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declines to address that argument at this time. Respondents do not argue that
Mr. Duran failed to exhaust state remedies for his second claim in the amended
application.
Mr. Duran argued in his second claim on direct appeal that his constitutional right
to compulsory process and to present a defense was violated when the trial court failed
to grant his motion for a mistrial or alternatively consider his request for admission of
statements under the residual hearsay exception. (See id. at 22-30.) Mr. Duran argued
in support of this claim on direct appeal that a witness, Nikkole King, failed to appear
at trial, that the trial court denied a defense motion for a mistrial based on Ms. King’s
failure to appear, and that the trial court denied a defense motion to introduce
Ms. King’s statements through a law enforcement officer and a defense investigator
pursuant to the residual hearsay exception. As noted above, Mr. Duran raises similar
arguments in connection with his third claim in the amended application, although the
third claim in the amended application is postured as a judicial bias claim and is broader
than Mr. Duran’s second claim in his direct appeal. Construing the amended application
liberally, the Court finds that Mr. Duran is asserting within his third claim for relief in the
amended application the same constitutional right to compulsory process and to present
a defense claim that he raised on direct appeal. Respondents concede that Mr. Duran
exhausted state remedies for such a claim on direct appeal. (See Doc. # 16 at 32.)
However, to the extent Mr. Duran’s third claim in the amended application includes
additional factual allegations or is based on some other constitutional theory, the claim
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was not exhausted on direct appeal.Mr. Duran argued in his third claim on direct appeal
that the trial court erred in denying a motion to suppress evidence of the victim’s
identification card that was seized from Mr. Duran’s home. (See Doc. # 16-16 at 30-45.)
Mr. Duran does not raise any similar claim in the amended application.
Therefore, of the three claims Mr. Duran raised on direct appeal, he raises only
two of those claims in the amended application. As discussed above, Respondents do
not argue that claim two in the amended application should be dismissed for failure to
exhaust state remedies. Respondents also concede that Mr. Duran exhausted on direct
appeal a portion of his third claim in the amended application, which the Court construes as a claim that his constitutional right to compulsory process and to present
a defense was violated.
The Court next will consider whether Mr. Duran exhausted state remedies for
any claims in the state court postconviction proceedings. Respondents argue, and the
Court agrees, that Mr. Duran did not fairly present any claims to the state’s highest court
in the postconviction proceedings. With respect to the state court postconviction
motions filed prior to May 17, 2010, Mr. Duran did not exhaust state court remedies for
any claims raised in those motions because he did not appeal the denial of any of those
motions. Therefore, any claims Mr. Duran raised in the postconviction motions filed
prior to May 17, 2010, are not exhausted because those claims were not fairly
presented to the state appellate courts. See Dever, 36 F.3d at 1534.
Mr. Duran did appeal from the denial of the postconviction motion he filed on May
17, 2010. However, the claims Mr. Duran raised in the May 17, 2010 post-conviction
motion also were not fairly presented to the state courts because both the trial court and
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the Colorado Court of Appeals determined that the claims Mr. Duran raised in his
postconviction motion filed on May 17, 2010, were procedurally barred under state law.
More specifically, the state courts determined that the claims Mr. Duran raised in his
postconviction motion filed on May 17, 2010, were barred by state procedural rules that
require courts to deny any claim that was raised and resolved in a prior appeal or
postconviction proceeding or that could have been raised in a prior appeal or
postconviction proceeding. See Fed. R. Crim. P. 35(c)(3)(VI) & (VII). Therefore, the
Court finds that Mr. Duran did not exhaust state remedies for any claims in the state
court postconviction proceedings. As a result, claims one and four and the portion of
claim three that was not raised on direct appeal are not exhausted.
Although Mr. Duran failed to exhaust state remedies for claims one and four
and a portion of claim three, the Court may not dismiss those claims for failure to
exhaust state remedies if Mr. Duran no longer has an adequate and effective state
remedy available to him. See Castille, 489 U.S. at 351. 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). “A state procedural ground is
independent if it relies on state law, rather than federal law, as the basis for the
decision.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). A state procedural
ground is adequate if it is “applied evenhandedly in the vast majority of cases.” Id.
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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. Duran’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. Duran 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). If Mr. Duran can demonstrate cause,
he also must show “actual prejudice as a result of the alleged violation of federal law.”
Coleman, 501 U.S. at 750. 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.
The Court finds that Colorado’s procedural rules that require the denial of claims
raised in a postconviction motion that actually were raised in a prior appeal or postconviction proceeding, or that could have been raised in a prior appeal or postconviction proceeding, are independent because they rely on state rather than federal
law. The Court also finds that these procedural rules are adequate because they are
applied evenhandedly by Colorado courts. See, e.g., People v. Vondra, 240 P.3d 493,
494 (Colo. App. 2010) (applying Fed. R. Crim. P. Rules 35(c)(3)(VI) & (VII) to reject
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claims actually raised in prior postconviction motion or that could have been raised in
a prior postconviction motion). In addition, Mr. Duran presents no argument that these
rules are not independent and adequate.
The fact that the Colorado Court of Appeals also determined Mr. Duran’s claims
on appeal from the denial of his May 17, 2010 postconviction motion lacked merit does
not undermine the state court’s procedural bar ruling. See Coleman v. Thompson, 501
U.S. 722, 733 (1991) (noting that a state court can look to federal law as an alternative
holding, so long as it clearly and expressly indicates that its decision is based on
independent and adequate state procedural grounds). Therefore, claims one and
four and the portion of claim three that was not raised on direct appeal are procedurally
defaulted and cannot be considered unless Mr. Duran demonstrates either cause and
prejudice or a fundamental miscarriage of justice. To the extent Mr. Duran may be
raising within these claims any argument that was not actually raised and rejected by
the state courts, the claims are subject to an anticipatory procedural default based on
the same state procedural rules. See Coleman, 501 U.S. at 735 n.1.
Mr. Duran argues in his reply to the Pre-Answer Response, apparently in an
effort to demonstrate cause for his procedural default, that the trial court improperly
construed his August 2009 and September 2009 letters to the trial court as Rule 35(c)
motions. He apparently contends that, if the trial court had not construed the August
2009 and September 2009 letters as seeking relief under Rule 35(c), his subsequent
postconviction motions would not have been procedurally barred under state law.
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The Court finds that this argument lacks merit because Mr. Duran did not appeal
from the trial court’s orders construing the August 2009 and September 2009 letters as
seeking relief under Rule 35(c). There also is no indication in the record before the
Court that Mr. Duran ever has argued to any state court that the August 2009 and
September 2009 letters improperly were construed as seeking relief under Rule 35(c).
As a result, the Court finds that Mr. Duran cannot demonstrate good cause for his
procedural default based on his argument that his August 2009 and September 2009
letters to the trial court improperly were construed as seeking relief pursuant to Rule
35(c). If Mr. Duran did not intend to seek relief under Rule 35(c) in the August 2009
and September 2009 letters, he should have raised that argument either in the trial
court or in an appeal from the trial court’s orders that construed the letters as seeking
relief under Rule 35(c).
Mr. Duran raises no other arguments that might demonstrate good cause for his
failure to comply with Colorado’s procedural rules regarding successive postconviction
motions or any resulting prejudice. He also fails to demonstrate or argue that a failure
to consider his claims will result in a fundamental miscarriage of justice. Therefore, the
Court finds that claims one and four and the portion of claim three that was not raised
on direct appeal are procedurally barred.
IV. CONCLUSION
In summary, Respondents do not argue that this action is untimely and the Court
finds that claims one and four and the portion of claim three that was not raised on
direct appeal must be dismissed as unexhausted and procedurally barred. Accordingly,
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IT IS ORDERED that claims one and four and the portion of claim three that was
not raised on direct appeal are DISMISSED as unexhausted and 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 the remaining claims.
IT IS FURTHER ORDERED that within thirty days of the filing of the answer
Applicant may file a reply, if he so desires.
DATED: September
24
, 2012
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
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