Arellano v. Medina et al

Filing 21

ORDER to Dismiss in Part. ORDERED that claims 2, 4(a) - 4(d), and 5 are DISMISSED as unexhausted and procedurally barred. 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. ORDERED that within thirty days of the filing of the answer Applicant may file a reply, if he desires by Judge Wiley Y. Daniel on 01/09/13. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-01693-WYD
WILLIAM ARELLANO,
Applicant,
v.
ANGEL MEDINA, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO DISMISS IN PART

This matter is before me on the Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 (ECF No. 1) (the “Application”) filed pro se by Applicant, William
Arellano. Mr. Arellano is challenging the validity of his conviction and sentence in
Pueblo County District Court case number 03CR383.
On July 13, 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 August 27, 2012, Respondents filed their Pre-Answer Response (ECF No.
14) arguing that some of Mr. Arellano’s claims are unexhausted and procedurally
barred. On October 11, 2012, Mr. Arellano filed a reply (ECF No. 17) (the “Reply”) to
the Pre-Answer Response.

I must construe the Application and the Reply liberally because Mr. Arellano 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, I should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, I will dismiss the action in part.
I. BACKGROUND
Mr. Arellano is a prisoner in the custody of the Colorado Department of
Corrections at the Limon Correctional Facility in Limon, Colorado. He was convicted by
a jury of theft from an at-risk adult, two counts of attempted theft from an at-risk adult,
and three counts of second degree burglary of a dwelling. Mr. Arellano also was
adjudicated to be an habitual criminal and he was sentenced to a total term of 144 years
in prison. The Colorado Court of Appeals affirmed the judgment of conviction on direct
appeal. See People v. Arellano, No. 04CA1307 (Colo. App. Sept. 7, 2006)
(unpublished) (ECF No. 14-1.) On May 14, 2007, the Colorado Supreme Court denied
Mr. Arellano’s petition for writ of certiorari on direct appeal. (See ECF No. 14-3.)
On July 10, 2007, Mr. Arellano filed a postconviction motion pursuant to Rule
35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 14-2 at 11.) The trial
court denied the Rule 35(c) motion on March 4, 2010. (See id. at 9.) The Colorado
Court of Appeals subsequently affirmed the trial court’s order denying the Rule 35(c)
motion. See People v. Arellano, No. 10CA0754 (Colo. App. Oct. 6, 2011) (unpublished)
(ECF No. 14-11). On February 6, 2012, the Colorado Supreme Court denied Mr.
Arellano’s petition for writ of certiorari in the state court postconviction proceedings.
(See ECF No. 14-4.)
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Mr. Arellano asserts the following five claims for relief in the Application:
1.

His Sixth Amendment right to a fair trial before an impartial jury was
violated because the trial court denied a challenge for cause to a seventynine-year-old juror.

2.

His Fourteenth Amendment right to a fair trial was violated because the
trial court admitted prejudicial evidence of an uncharged burglary and
theft.

3.

His Sixth and Fourteenth Amendment rights were violated because (a)
there was insufficient evidence to support his adjudication as an habitual
criminal and (b) the trial court’s allowance of documentary evidence under
the business records exception in the habitual criminal proceedings denied
him the opportunity to confront the witnesses against him.

4.

His Sixth and Fourteenth Amendment right to the effective assistance of
counsel was violated because: (a) trial counsel failed to challenge the
introduction of evidence of an uncharged burglary and theft on a theory of
collateral estoppel; (b) trial counsel failed to conduct sufficient
investigation and discover or present exculpatory evidence; (c) trial
counsel misadvised Mr. Arellano with respect to the maximum sentence
he faced if convicted at trial; (d) trial counsel failed to seek a
proportionality review of Mr. Arellano’s sentence; (e) trial counsel failed to
seek replacement of an allegedly biased juror who overheard a comment
that Mr. Arellano previously had served time1; and (f) counsel on direct
failed to raise as an issue the trial court’s failure to sua sponte declare a
mistrial when a prospective juror exposed other jurors to the fact that Mr.
Arellano previously had served time

5.

His right to due process was violated because the trial court considered
expunged juvenile records at sentencing.

1

In the Application, Mr. Arellano’s fifth argument that trial counsel was ineffective, designated in
this order as claim 4(e), consists of an allegation that trial counsel failed to seek replacement of a juror,
Mr. Arellano’s ex-brother-in-law, who did not actually serve on the jury but allegedly exposed members of
the jury pool to the fact that Mr. Arellano had been incarcerated since he was a juvenile. Respondents
have construed Mr. Arellano’s fifth argument in the manner set forth in claim 4(e) in this order and Mr.
Arellano has not objected to that construction of claim 4(e). Therefore, I will consider claim 4(e) as
construed by Respondents.

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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 1, 2, 4(a) - 4(d), and 5
are unexhausted and procedurally barred. I agree that claims 2, 4(a) - 4(d), and 5 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.
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
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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).
Mr. Arellano first asserts in the Reply that Respondents’ arguments regarding
exhaustion should be rejected because Respondents failed to comply with the order
directing Respondents to file a Pre-Answer Response. More specifically, Mr. Arellano
contends that Respondents failed to submit with their Pre-Answer Response copies of
the answer briefs filed by the government on direct appeal and on appeal in the
postconviction Rule 35(c) proceedings. He further contends that, without the
government answer briefs, the Court cannot determine whether his claims in this action
were fairly presented to the state courts as federal constitutional claims. I do not agree.
Respondents were directed to attach as exhibits to their Pre-Answer Response
“all relevant portions of the state court record, including but not limited to copies of all
documents demonstrating whether this action is filed in a timely manner and/or whether
Applicant has exhausted state court remedies.” (ECF No. 8 at 2.) Because the
government is not responsible for presenting Mr. Arellano’s claims to the state courts in
his state court appeals, the government answer briefs are not relevant to whether Mr.
Arellano fairly presented his claims to the state courts as federal constitutional claims.
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Therefore, I cannot conclude that Respondents failed to comply with the order directing
them to file a Pre-Answer Response and I will proceed to consider Respondents’
specific exhaustion arguments with respect to Mr. Arellano’s claims.
Claim One
Mr. Arellano first claims that his Sixth Amendment right to a fair trial before an
impartial jury was violated because the trial court denied a challenge for cause to a
seventy-nine-year-old juror. In support of this claim he alleges the challenged juror
stated during voir dire that he could not be fair because he had been burglarized
previously and would be sympathetic to the elderly victims.
Respondents argue that Mr. Arellano failed to exhaust state remedies for claim 1
because, although he raised a similar state law claim on direct appeal, he did not raise
the claim as a federal constitutional claim. Respondents concede that Mr. Arellano
referenced the federal constitution in the introductory paragraphs of his arguments
regarding this claim in the Colorado appellate courts by using the phrases “due
process,” “the right to a fair trial,” and “the right to an impartial jury” (see ECF No. 14-5
at 12; ECF No. 14-7 at 4-5), but they maintain that Mr. Arellano did not exhaust a
federal constitutional claim because he “never purported to apply the federal
constitution” (ECF No. 14 at 11).
I find that Mr. Arellano fairly presented claim 1 to the Colorado appellate courts
as a federal constitutional claim. “A litigant wishing to raise a federal issue can easily
indicate the federal law basis for his claim in a state-court petition or brief, for example,
by citing in conjunction with the claim the federal source of law on which he relies or a

6

case deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.’”
Baldwin v. Reese, 541 U.S. 27, 32 (2004).
In addition to making references to the federal constitution as Respondents
concede, Mr. Arellano’s arguments before the state courts also included citations to
Colorado Supreme Court cases that rely on federal constitutional law. (See ECF No.
14-5 at 12; ECF No. 14-7 at 4-5.) One of the Colorado Supreme Court cases cited by
Mr. Arellano was Morrison v. People, 19 P.3d 668 (Colo. 2000). In Morrison, the
Colorado Supreme Court decided an impartial jury claim on federal grounds, stating that
“[t]he due process clauses of the United States and Colorado constitutions guarantee
every criminal defendant the right to a fair trial” and “[a]n impartial jury is a fundamental
element of the constitutional right to a fair trial.” Morrison, 19 P.3d at 672. Another
Colorado Supreme Court case cited by Mr. Arellano was People v. Macrander, 828
P.2d 234 (Colo. 1992). In Macrander, the Colorado Supreme Court cited In re
Murchison, 349 U.S. 133, 136 (1955), for the proposition that “[a] fair trial in a fair
tribunal is a basic requirement of due process” under the federal constitution.
Macrander, 828 P.2d at 238.
Respondents are correct that Mr. Arellano’s substantive argument in his state
court briefs focused more precisely on whether the trial court abused its discretion in
denying the challenge for cause and not the constitutional requirement of an impartial
jury. However, because Mr. Arellano referenced specific provisions of the federal
constitution and cited state cases relying on the federal constitution, I conclude that the
constitutional question fairly was presented. Therefore, I find that claim 1 in the
application is exhausted.
7

Claim Two
Mr. Arellano’s second claim is that his Fourteenth Amendment right to a fair trial
was violated because the trial court admitted prejudicial evidence of an uncharged
burglary and theft. He alleges in support of claim 2 that, although the trial court
dismissed one of the counts of burglary with which he originally was charged, the trial
court erroneously allowed evidence of that count to be presented to the jury for the
purposes of establishing a common plan, scheme, or design.
Respondents argue that claim 2 is not exhausted because it was presented to
the Colorado appellate courts on direct appeal only as a violation of the Colorado Rules
of Evidence and not as a federal constitutional claim. Mr. Arellano concedes in his reply
to the Pre-Answer Response that “counsel on direct appeal didn’t mention any
constitutional right” in the opening brief on direct appeal to the Colorado Court of
Appeals in connection with his claim regarding admission of evidence of the uncharged
burglary and theft. (See ECF No. 17 at 5.)
Although not addressed by Mr. Arellano, Respondents accurately note that Mr.
Arellano’s argument with respect to admission of evidence of the uncharged burglary
and theft in his petition for writ of certiorari to the Colorado Supreme Court on direct
appeal concluded with the following sentence: “The Court’s analysis on this issue is
strained and contrary to traditional notions of due process and the right to a fair trial.
U.S. Const. amends. V, VI, XIV; Colo. Const. Art. II, secs. 16, 25.” (ECF No. 14-7 at 89.) Despite this reference to the federal constitution, I agree with Respondents that
claim 2 in the application was not fairly presented to the state appellate courts and is not
exhausted because, as Mr. Arellano concedes, his opening briefing to the Colorado
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Court of Appeals did not include any citations or references to federal constitutional law.
The fact that Mr. Arellano included a reference to the federal constitution with respect to
this claim for the first time in his petition for writ of certiorari to the Colorado Supreme
Court does not satisfy the fair presentation requirement.
Mr. Arellano also argues that claim 2 should not be dismissed despite his failure
to exhaust the claim because he can demonstrate cause and prejudice for his state
court procedural default. I will address the cause and prejudice argument below.
Claim Three
Respondents concede that Mr. Arellano has exhausted state court remedies for
both parts of claim 3.
Claim Four
Mr. Arellano’s fourth claim is an ineffective assistance of counsel claim pertinent
to both trial counsel and counsel on direct appeal and includes the six sub-parts listed
above. Respondents do not dispute that Mr. Arellano raised all six sub-parts of claim 4
in his postconviction Rule 35(c) motion. However, Respondents maintain that Mr.
Arellano raised on appeal in the state court postconviction proceedings only claims 4(e)
and 4(f), which relate to trial counsel’s failure to seek replacement of an allegedly
biased juror who overheard a comment that Mr. Arellano previously had served time
and direct appeal counsel’s failure to raise as an issue the trial court’s failure to sua
sponte declare a mistrial when a potential juror exposed other jurors to the fact that Mr.
Arellano previously had served time. Respondents concede that claims 4(e) and 4(f)
are exhausted.

9

Mr. Arellano apparently concedes that the remaining ineffective assistance of
counsel claims are not exhausted because he asserts in the Reply that “the other
ineffective assistance of counsel claims raised in Mr. Arellano’s initial postconviction
application . . . were either not litigated at the trial level or were not appealed.” (ECF
No. 17 at 6.) However, he argues in the Reply that the unexhausted ineffective
assistance of counsel claims should not be dismissed as procedurally barred because
he can demonstrate cause for his procedural default of those claims. Based on my
review of Mr. Arellano’s state court appellate briefs, I agree with Respondents that the
only ineffective assistance of counsel claims Mr. Arellano fairly presented to the state
appellate courts are claims 4(e) and 4(f). Therefore, I find that Mr. Arellano’s other
ineffective assistance of counsel claims, claims 4(a) - 4(d), are not exhausted. I will
address below Mr. Arellano’s argument that he can demonstrate cause and prejudice
for his procedural default of claims 4(a) - 4(d).
Claim Five
Mr. Arellano alleges in claim 5 that his right to due process was violated because
the trial court considered expunged juvenile records at sentencing. Respondents
contend that claim five is unexhausted because the claim has not been presented to
any Colorado state appellate court. Mr. Arellano does not dispute this contention and
my review of the state court appellate briefs confirms that claim 5 is not exhausted. Mr.
Arellano does argue that claim 5 should not be dismissed as procedurally barred
because he can demonstrate cause and prejudice for his procedural default. I will
address that argument below.

10

IV. PROCEDURAL DEFAULT
Although Mr. Arellano failed to exhaust state remedies for claims 2, 4(a) - 4(d),
and 5, I may not dismiss those claims for failure to exhaust state remedies if Mr.
Arellano no longer has an adequate and effective state remedy available to him. See
Castille, 489 U.S. at 351. Respondents contend that Mr. Arellano no longer has an
adequate and effective state remedy available to him, and that the unexhausted claims
are procedurally defaulted, because Mr. Arellano is barred from raising the unexhausted
claims in a new postconviction motion. More specifically, Respondents assert that Rule
35(c)(3)(VII) of the Colorado Rules of Criminal Procedure, which requires courts to deny
any claim that could have been raised in a prior appeal or postconviction proceeding,
prevents Mr. Arellano from returning to state court to pursue his unexhausted claims.
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.
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. Arellano’s pro se status does not exempt him from the requirement of
demonstrating either cause and prejudice or a fundamental miscarriage of justice. See
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Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994). Furthermore, although Mr.
Arellano’s unexhausted claims have not actually been raised and rejected by the state
appellate courts, the claims still are subject to an anticipatory procedural default if it is
clear that the claims would be rejected because of an independent and adequate state
procedural rule. See Coleman, 501 U.S. at 735 n.1.
I find that Rule 35(c)(3)(VII) of the Colorado Rules of Criminal Procedure is
independent because it relies on state rather than federal law. I also find that this
procedural rule is adequate because it is applied evenhandedly by Colorado courts.
See, e.g., People v. Vondra, 240 P.3d 493, 494 (Colo. App. 2010) (applying Crim P.
Rule 35(c)(3)(VII) to reject claims that could have been raised in a prior postconviction
motion). In addition, Mr. Arellano presents no argument that Rule 35(c)(3)(VII) of the
Colorado Rules of Criminal Procedure is not independent and adequate. Therefore,
claims 2, 4(a) - 4(d), and 5 are procedurally defaulted and cannot be considered unless
Mr. Arellano demonstrates either cause and prejudice or a fundamental miscarriage of
justice.
To demonstrate cause for his procedural default, Mr. Arellano 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. Arellano can demonstrate
cause, he also must show “actual prejudice as a result of the alleged violation of federal
12

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.
With respect to claim 2, Mr. Arellano argues that he can demonstrate cause for
his procedural default because counsel on direct appeal was ineffective by failing to
raise that claim. He argues that he can demonstrate cause for his procedural default of
claims 4(a) - 4(d) and 5 because counsel on appeal from the denial of his postconviction
Rule 35(c) motion was ineffective by failing to raise those claims.
In certain instances, ineffective assistance of counsel can constitute cause to
excuse a procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000).
However, to the extent Mr. Arellano seeks to establish cause based on the alleged
ineffectiveness of direct appeal counsel, I note that a claim of ineffective assistance of
counsel must be raised first as an independent constitutional claim in state court before
it can be used to establish cause for a procedural default. See id. Mr. Arellano did not
raise in the state court postconviction proceedings any claim that direct appeal counsel
was ineffective by failing to raise a claim that Mr. Arellano’s Fourteenth Amendment
right to a fair trial was violated because the trial court admitted prejudicial evidence of
an uncharged burglary and theft. As a result, Mr. Arellano cannot rely on direct appeal
counsel’s alleged ineffectiveness to demonstrate cause for his procedural default of
claim 2.2

2

Although apparently not argued by Mr. Arellano, the same reasoning applies to the extent he
may contend that claim 5 was not raised on direct appeal because direct appeal counsel was ineffective.

13

With respect to postconviction appeal counsel’s alleged failure to raise claims
4(a) - 4(d) and 5 on appeal from the denial of his Rule 35(c) motion, Mr. Arellano
specifically relies on the Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309
(2012). In Martinez, the Supreme Court held the following:
Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review
collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
Id. at 1320.
I do not agree that Martinez applies to Mr. Arellano’s unexhausted claims in this
action. With respect to claim 5, that claim is not an ineffective assistance of trial
counsel claim to which Martinez arguably might apply. I also find that Martinez does not
apply to Mr. Arellano’s unexhausted claims 4(a) - 4(d) because Mr. Arellano argues only
that postconviction appeal counsel failed to raise the ineffective assistance of trial
counsel claims. Prior to Martinez, the Supreme Court held that an attorney’s errors on
appeal from an initial-review collateral proceeding do not qualify as cause for a
procedural default, see Coleman, 501 U.S. at 757, and the Supreme Court in Martinez
reaffirmed that holding in Coleman:
The rule of Coleman governs in all but the limited
circumstances recognized here. The holding in this case
does not concern attorney errors in other kinds of
proceedings, including appeals from initial-review collateral
proceedings, second or successive collateral proceedings,
and petitions for discretionary review in a State’s appellate
courts. It does not extend to attorney errors in any
proceeding beyond the first occasion the State allows a
prisoner to raise a claim of ineffective assistance at trial,
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even though that initial-review collateral proceeding may be
deficient for other reasons.
Martinez, 132 S. Ct. at 1320 (emphasis added, citation omitted). Therefore, Mr.
Arellano cannot demonstrate cause based on the alleged ineffectiveness of
postconviction appeal counsel.
Mr. Arellano raises no other arguments that might demonstrate good cause for
his procedural default 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, I find that claims 2, 4(a) - 4(d), and 5 are procedurally barred.
V. CONCLUSION
In summary, Respondents do not argue that this action is untimely and I find that
claims 2, 4(a) - 4(d), and 5 must be dismissed as unexhausted and procedurally barred.
Accordingly, it is
ORDERED that claims 2, 4(a) - 4(d), and 5 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 desires.

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Dated: January 9, 2013.
BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE

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