Kim v. Falk et al

Filing 14

ORDER Drawing Case. This case shall be drawn to a district judge and a magistrate judge, by Magistrate Judge Craig B. Shaffer on 08/24/12. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01419-BNB
KIM YOOBANG,
Applicant,
v.
JAMES FALK, Warden of the Sterling Correctional Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DRAWING CASE

I. Background
Applicant Kim Yoobang is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the correctional facility in Sterling, Colorado.
Mr. Yoobang, 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 June 20, 2012, 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.
Respondents filed a Pre-Answer Response on July 30, 2012, and Mr. Yoobang
filed a Reply on August 16, 2012.
Mr. Yoobang was convicted by a jury of attempted first and second degree
assault, child abuse resulting in serious bodily injury, and two counts crime of violence.
See Pre-Answer Resp., ECF No. 12-1 at 3-6. On November 4, 2004, Mr. Yoobang

was sentenced to a total of seventy years. Id. at 4. The Colorado Court of Appeals
(CCA) affirmed the convictions, People v. Kim, No. 04CA2508 (Colo. App. June 25,
2009) (not published), and the Colorado Supreme Court denied certiorari review on
March 15, 2010, Pre-Answer Resp. at ECF No. 12-6.
Mr. Yoobang then filed a Colo. R. Crim. P. 35(b) postconviction motion on July 2,
2010 that was denied; he not appeal the denial. ECF No. 12-1 at 11. On June 13,
2011, Mr. Yoobang file a Colo. R. Crim. P. 35(c) postconviction motion that was denied;
the CCA affirmed the denial and Mr. Yoobang did not seek certiorari review. See Id. at
9-10. Respondents concede the action is timely under 28 U.S.C. ' 2244(d).
Mr. Yoobang asserts three claims. First, he claims that he was denied
substitute counsel in violation of his Sixth Amendment rights. Second, he asserts that
he did not knowingly, intelligently, and voluntarily waive his right to counsel in violation
of his Sixth and Fourteenth Amendment rights. Third, he claims that he was denied his
right to revoke his waiver of counsel in violation of his due process rights.
Respondents concede that Claims One and Two are exhausted but argue Claim
Three is procedurally defaulted.
II. Analysis
The Court must construe liberally the Application and all other pleadings
because Mr. Yoobang 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. For the reasons stated below, the Court will order the Application drawn
to a district judge and magistrate judge.
Pursuant to 28 U.S.C. ' 2254(b)(1), an application for a writ of habeas corpus
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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 Ato the highest state court, either by direct review of
the conviction or in a postconviction attack.@ Dever, 36 F.3d at 1534.
Furthermore, the Asubstance 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 Abook and verse on the federal constitution,@ Picard, 404 U.S.
at 278 (internal quotation marks omitted), A[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).
AThe 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 Mr. Yoobang did not raise Claim Three as a federal

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constitutional claim in state court. Respondents concede that in Mr. Yoobang=s direct
appeal the CCA found Adefendant suggests that because he clearly requested
representation as trial approached, he effectively revoked his waiver of counsel and
consequently the trial court was required to supply him with an attorney,@ Pre-Answer
Resp., ECF No. 12 at 9. However, Respondents contend that this argument does not
explicitly appear in Applicant=s direct appeal brief and the CCA did not apply a federal
due process analysis. Id. Respondents, therefore, conclude that Mr. Yoobang did not
exhaust this claim and the claim now is anticipatorily defaulted. Id. at 10.
Relying on Sandgathe v. Maass, 314 F.3d 376-77 (9th Cir. 2000), as did
Respondents, if an inadequately pled federal claim is presented to the state court and
the court nevertheless adjudicates the claim on the merits, the claim is exhausted. A
review of the CCA=s opinion in Mr. Yoobang=s direct appeal reveals that the CCA
addressed the revocation of waiver issued based on People v. Price, 903 P.2d 1190,
1192 (Colo. App. 1995). The question is whether the CCA=s decision was based only
on state law, as suggested by Respondents, or on federal constitutional law.
The CCA, relying on Price, 903 P.2d at 1192, reasoned that unlike other
jurisdictions there is no statute or rule in Colorado that allows criminal defendants to
withdraw a waiver of counsel at any time and consequently the trial court is not required
to withdraw a waiver but Amay@ exercise its discretion in evaluating the circumstances
surrounding the request,
The court in Price acknowledged a defendant=s Sixth Amendment right to
counsel and in the alternative the right to self-representation. Id. Price reads
specifically as follows: Aa trial court is not compelled to grant a criminal defendant=s

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request to withdraw a valid waiver of the right to counsel, but must exercise its
discretion in evaluating the circumstances surrounding the request.@ Id. (emphasis
added). Price also finds that the Atrial court must carefully monitor the proceedings in
order to guarantee the fundamental fairness necessary to preserve a defendant=s right
to due process.@ Id. (citing People v. Romero, 694 P.2d 1256 (Colo. 1985)).
Given the CCA=s reliance on Price and the findings in Price, an argument can be
made that the CCA=s decision regarding the revocation of Mr. Yoobang=s waiver of the
right to counsel was based on federal constitutional rights. At the least, Claim Three
may be considered a subpart to Claim Two in support of the invalid waiver of counsel
claim. For the above stated reasons, the Court, at this time, will not dismiss Claim
Three as procedurally defaulted.
III. Conclusion
Accordingly, it is
ORDERED that this case shall be drawn to a district judge and to a magistrate
judge. See D.C.COLO.LCivR 8.2D.

DATED at Denver, Colorado, on August 24, 2012.
BY THE COURT:

s/Craig B. Shaffer
United States Magistrate Judge

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