Keyes v. Miller et al

Filing 21

ORDER by Magistrate Judge Boyd N. Boland on 09/04/12 denying 20 Request To Stay Application and ORDER To Show Cause, filed by Reggie N. Keyes. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01058-BNB
REGGIE N. KEYES,
Applicant,
v.
MICHAEL MILLER, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING REQUEST TO STAY APPLICATION
AND ORDER TO SHOW CAUSE

Applicant, Reggie N. Keyes, is in the custody of the Colorado Department of
Corrections and is incarcerated at the Fremont Correctional Facility in Canón City,
Colorado. He has filed an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 challenging his conviction for misdemeanor menacing and first degree
possession of contraband involving a dangerous weapon, a class four felony in Bent
County District Court Case No. 2005CR84. He was adjudicated a habitual criminal and
sentenced to twenty-four years in prison. Mr. Keyes has paid the $5.00 filing fee.
Mr. Keyes asserts ten claims in the Application. The parties agree that some of
Applicant’s claims are currently pending before the state district court in a Colorado
Criminal Procedure Rule 35 proceeding. (See ECF Nos. 18 and 20). Applicant asks
the Court to hold his § 2254 Application in abeyance while he exhausts state remedies
for his unexhausted claims. (ECF No. 20)

I. Applicable Legal Standards
Applicant’s pro se pleadings are afforded a liberal construction. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Although the Court does not act as an advocate for a pro se litigant, see Hall,
935 F.2d at 1110, because of the procedural complexities inherent in habeas corpus
proceedings, some advisement to Mr. Keyes is warranted to inform his decision in this
matter.
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

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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).
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).
Even if state remedies properly have been exhausted as to one or more of the claims
presented, a habeas corpus application is subject to dismissal as a mixed petition
unless state court remedies have been exhausted for all of the claims raised. See
Rose, 455 U.S. at 522; Harris v. Champion, 48 F.3d 1127, 1133 (10th Cir. 1995).
II. Request to Stay § 2254 Application
Pursuant to Rhines v. Weber, 544 U.S. 269 (2005), this Court has discretion to
stay a mixed petition while a habeas petitioner returns to state court to exhaust his
unexhausted claims. Id. at 277. However, “stay and abeyance should be available only
in limited circumstances.” Id. A habeas petitioner must establish “good cause” for his
failure to first exhaust the claims in state court. Id. In Rhines, the Supreme Court was
concerned about the possible expiration of the AEDPA one-year limitation period while
an Application remained pending in federal court. Id. at 269-70; see also Duncan v.
Walker, 533 U.S. 167, 181-82 (2001) (holding that AEDPA limitation period is not tolled
during pendency of federal habeas petition). No such concern is presented here.

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The Colorado Supreme Court denied certiorari review in Mr. Keyes’ direct appeal
proceeding on April 18, 2011. (See ECF No. 14-8). Applicant did not seek a writ of
certiorari review with the Colorado Supreme Court. As a result, his conviction became
final ninety days later, on July 18, 2012,1 when the time in which he could have
petitioned for review in the United States Supreme Court expired. See Sup. Ct. R.
13(1); Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). The time limitation period
for purposes of 28 U.S.C. § 2244(d) began to run on July 19, 2012. See Harris v.
Dinwiddie, 642 F.3d 902, 907 n.6 (10th Cir. 2011) (noting that one-year limitation
period commences the day after expiration of the time for seeking review, citing United
States v. Hurst, 322 F.3d 1256, 1261-62 (10th Cir. 2003)). Applicant filed his Colo.
Crim. P. Rule 35 motion in Bent County District Court on May 19, 2011, thirty-one days
later. (See ECF No. 14-1, at 11 of 35). A properly filed state post conviction motion
tolls the AEDPA time clock. See 28 U.S.C. § 2244(d)(2); Habteselassie v. Novak, 209
F.3d 1208 (10th Cir. 2000). It appears that Mr. Keyes may be able to meet the
AEDPA’s one-year filing requirement if he acts diligently to file his federal application
once the state court has finally resolved his unexhausted claims. Accordingly, the Court
finds no basis for staying this action until Mr. Keyes has exhausted his state court
remedies for his unexhausted claims. Mr. Keyes states in his motion that the state
district court appointed counsel to represent him in his state post-conviction proceeding
on July 13, 2012. (See ECF No. 20, at 3 of 6). Counsel may further refine Applicant’s
claims.
1

The 90th day, July 17, 2011, was a Sunday. July 18, 2011, was the first business day following
the expiration of the 90-day period. See Fed. R. Civ. P. 6(a).

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III. Order to Show Cause
Because Mr. Keyes is asserting both exhausted and unexhausted claims, he will
be ordered to show cause why the Application should not be denied as a mixed petition.
See Rose, 455 U.S. at 522; Harris, 48 F.3d at 1133. In order to avoid dismissal of a
habeas application as a mixed petition, an applicant may elect to dismiss any
unexhausted claims and pursue only those claims for which state remedies already
have been exhausted. If an applicant wishes to pursue all of his claims in federal court
the habeas action will be dismissed without prejudice so that the applicant may exhaust
state remedies. He then may file a new application for a writ of habeas corpus once all
of his claims are exhausted.
A decision to dismiss unexhausted claims and pursue immediately only
exhausted claims likely will bar an applicant from seeking review of the unexhausted
claims in a second or successive application. See 28 U.S.C. § 2244(b). Alternatively, if
an applicant elects to dismiss the entire action and return to state court to exhaust the
unexhausted claims before seeking relief in federal court, the one-year limitation period
in § 2244(d) will be applied to any new federal court action the applicant seeks to file.
Furthermore, the time during which a 28 U.S.C. § 2254 application is pending in this
Court does not toll the one-year limitation period in § 2244(d). See Duncan v. Walker,
533 U.S. 167, 181-82 (2001) (holding that “an application for federal habeas corpus
review is not an ‘application for State post-conviction or other collateral review’ within
the meaning of 28 U.S.C. § 2244(d)(2)” and “therefore did not toll the limitation period
during the pendency of [an applicant’s] first federal habeas petition”). The fact that the

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instant action currently is timely under § 2244(d) does not mean that any future action
filed by Mr. Keyes will be timely.
Mr. Keyes will be afforded an opportunity to show cause why the instant action
should not be dismissed as a mixed petition. Alternatively, the Court will allow Mr.
Keyes to dismiss voluntarily his unexhausted claims and to proceed with the exhausted
claim(s). If Applicant fails to provide a clear response indicating his intentions, he will
have failed to show cause as directed, and the Court will dismiss the instant action as a
mixed petition. Accordingly, it is
ORDERED that the Request for Order Holding the Habeas Petition in Abeyance
Pending Exhaustion in State Court of Unexhausted Claims (ECF No. 20), filed on
August 24, 2012, is denied. It is
FURTHER ORDERED that Mr. Keyes show cause within thirty days from the
date of this Order why the Application should not be denied as a mixed petition for
failure to exhaust state court remedies. It is
FURTHER ORDERED that, alternatively, Mr. Keyes may dismiss voluntarily the
unexhausted claims and proceed with only the exhausted claim(s).
FURTHER ORDERED that the Application will be denied and the action will be

dismissed without further notice if Mr. Keyes fails to show cause as directed within the
time allowed.

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DATED September 4, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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