Velasquez v. Faulk, et al
ORDER to Dismiss in Part and For Answer. ORDERED that within thirty days of the filing of an answer Applicant may file a reply if he desires. ORDERED that the Clerk of the Court is directed to send copies of this Order by Judge Wiley Y. Daniel on 02/01/13. (jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-02057-WYD
WARDEN FAULK, L.C.F., and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER TO DISMISS IN PART AND FOR ANSWER
Applicant Juan Velasquez is in the custody of the Colorado Department of
Corrections (DOC) at the correctional facility in Limon, Colorado. Applicant, acting pro
se, has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254, ECF No. 6. In an order entered on September 5, 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.
On October 19, 2012, Respondents filed their Pre-Answer Response, ECF No.
11. Applicant filed a Reply, ECF No. 16, on November 14, 2012.
On July 7, 2003, Applicant was convicted by a jury of assault and attempted
murder. Pre-Answer, ECF No. 11-15, Appx. O at 15. At sentencing, the trial court
determined Applicant had four prior felony convictions, was a habitual criminal under
Colorado law, and sentenced him to two concurrent ninety-six year sentences. Id. at
12-13. The Colorado Court of Appeals (CCA) affirmed the conviction and sentence,
and the Colorado Supreme Court (CSC) denied Applicant’s petition for certiorari review.
See People v. Velasquez, No. 03CA2449 (Colo. App. Nov. 9, 2006); Velasquez v.
People, No. 06SC840 (Mar. 26, 2007). On June 7, 2007, Applicant filed a Colo. R.
Crim. P. 35(c) postconviction motion, which was denied by the trial court. Pre-Answer
Resp., Appx. O at 11. The CCA affirmed the denial in part, reversed in part, and
remanded for an evidentiary hearing on Applicant’s ineffective assistance of counsel
claim regarding a failure to investigate and raise the voluntary intoxication defense.
People v. Velasquez, No. 07CA1796 at 11 (Jan. 15, 2009). After the remand hearing,
the trial court again denied the Rule 35(c) postconviction motion and the CCA affirmed.
Applicant petitioned for certiorari review and according to Respondents, which Applicant
does not deny, the CSC has yet to rule on the petition.
In this action, Applicant asserts:
A denial of a right to conflict free counsel;
A lack of sufficient evidence to support a charge of attempted first
A lack of a sufficient indictment resulting in the inability to prepare a
A lack of sufficient evidence to prove habitual criminal counts;
A disproportionate sentence;
Ineffective assistance of trial counsel because
(a) Counsel coerced Applicant not to testify;
(b) Counsel failed to raise an affirmative
defense of voluntary intoxication
(c) Counsel failed to conduct reasonable investigation
and interview witnesses to support a voluntary
(d) Counsel failed to object to the prosecution’s
misstatements of law and misconduct in
closing and rebuttal arguments; and
(e) Cumulative error; and
Denial of a right to jury trial on habitual criminal findings.
Respondents concede that the action is timely and Claims 7(b), 7(c), and 7(d)1
are exhausted. As for the remainder of the claims, Respondents contend the claims are
I must construe liberally the Application, Reply, and other pleadings, because
Applicant 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 act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Respondents contend that Applicant did not exhaust Claims One, Two, Four,
Five, Six, and Seven(d), because he failed to present these claims to the CSC and the
claims now are procedurally defaulted. As for Claim Three, Respondents contend that
the claim is barred because Applicant failed to present the claim to the CCA as a federal
I note that Respondents set forth conflicting arguments regarding Claim Seven(d). On
Page Three of the Pre-Answer Response, Respondents concede that Claim Seven(d) is
exhausted and do not argue the claim is procedurally defaulted. However, on Page Nineteen,
Respondents argue that Claim Seven(d) is procedurally barred from federal habeas review. I
further note that Respondents fail to address why they believe Claim Seven(e) is procedurally
barred. Nonetheless, because Respondents concede Claim Seven(d) and (e) was raised in
Applicant’s opening brief on appeal of his first Rule 35(c) postconviction motion, and given the
analysis of Colo. App. R. 51.1(a) below, Claim Seven(d) and (e) will be found to be exhausted
and not barred from federal habeas review.
constitutional violation. Finally, with respect to Claim Seven(a), Respondents contend
that Applicant did not present the claim in any of his opening briefs before the CCA. I
will discuss each claim in turn as follows.
1. Claims Three and Seven(a)
In his Reply, Applicant states that under Martinez v. Ryan, 132 S.Ct. 1309
(2012), he is entitled to “automatic cause” for not exhausting Claim Three. Reply at 4.
Applicant argues that because he was not given the assistance of counsel in his initial
postconviction application he did not raise the issue that direct appellate counsel failed
to fully and fairly present the substance of Claim Three to the state courts. Id.
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. People, 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, 36566 (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).
Claims are precluded from federal habeas review when the claims have 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
The Colorado Rules of Criminal Procedure prohibit successive postconviction
Rule 35 motions with limited exceptions. See Colo. R. Crim. P. 35(c)(3)(VI) and (VII)
(explaining that claims “raised and resolved” or “that could have been presented” in a
prior appeal or post-conviction proceeding will generally be denied); see also People v.
Bastardo, 646 P.2d 382, 383 (Colo. 1982) (stating that postconviction review is not
available to address under a recently contrived constitutional theory issues that were
raised previously). Rule 35 proceedings prevent injustices afer conviction and
sentencing but do not provide perpetual review. See People v. Rodriguez, 914 P.2d
230, 249 (Colo. 1996) (citing People v. Hampton, 528 P.2d 1311, 1312 (1974)).
Applicant cannot use a Rule 35(c) proceeding to relitigate matters fully and finally
resolved in a previous appeal. Rodriguez, 914 P.2d at 249 (citations omitted). Also, if it
is obvious that an unexhausted claim would be procedurally barred in state court the
claim is subject to an anticipatory procedural bar, see Anderson v. Sirmons, 476 F.3d
1131, 1139 n.7 (10th Cir. 2007), and is procedurally barred from federal habeas review,
Steele, 11 F.3d at 1524 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
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).
Application of this procedural default rule in the habeas corpus context is based on
comity and federalism concerns. See Coleman, 501 U.S. at 730. A federal court may
proceed to the merits of a procedurally defaulted habeas claim if the applicant
establishes either cause for default and actual prejudice or fundamental miscarriage of
justice if the merits of a claim are not reached. See Demarest v. Price, 130 F.3d 922,
941 (10th Cir. 1997). Applicant’s pro se status does not exempt him from the
requirement of demonstrating cause for the default and actual prejudice or failure as a
result of the alleged violation of federal law or demonstrating that failure to consider the
claims will result in a fundamental miscarriage of justice. See Lepiscopo v. Tansy, 38
F.3d 1128, 1130 (10th Cir. 1994).
To demonstrate cause for his procedural default, Applicant 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). Ineffective assistance of counsel may
establish cause excusing a procedural default. Jackson, 143 F.3d at 1319. Applicant,
however, must show “some objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule” and have “presented to the state
courts as an independent claim before it may be used to establish cause for a
procedural default.” Murray, 477 U.S. at 488-89.
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. A “substantial claim that constitutional error has caused the conviction of an
innocent person is extremely rare.” Schlup v. Delo, 513 U.S. 298, 324 (1995). In order
to demonstrate a fundamental miscarriage of justice, Applicant first must “support his
allegations of constitutional error with new reliable evidence--whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that
was not presented at trial.” Id. Applicant then must demonstrate “that it is more likely
than not that no reasonable juror would have convicted him in light of the new
evidence.” Id. at 327.
For the following reasons, Applicant fails to demonstrate a cause for his
procedural default. Under Coleman v. Thompson, 501 U.S. 722, 752 (1991), habeas
petitioners have no constitutional right to postconviction counsel in the first instance and
inadequate performance by counsel does not excuse procedural default. In Martinez,
the Supreme Court held that where a state permits a defendant to challenge the
assistance of trial counsel only in a postconviction proceeding, then the absence of
postconviction counsel, or ineffective assistance of post-conviction counsel, in the
postconviction proceeding can constitute cause for the habeas petitioner’s default of
claims of ineffective assistance of trial counsel. Id. at 1318. Martinez also was clear
about what it did not hold. See Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir.
2012). “[I]n no uncertain terms . . . ‘[t]he rule of Coleman governs in all but the limited
circumstances recognized here.’ ” Id. (quoting Martinez, 132 S. Ct. 1320). “Martinez
applies only to “a prisoner’s procedural default of a claim of ineffective assistance at
trial,’ not to claims of deficient performance by appellate counsel.” Id. (quoting Martinez,
132 S. Ct. At 1315). Here, Applicant is challenging appellate counsel’s failure to
present the substance of Claim Three. The lack of assistance of counsel in Applicant’s
postconviction proceeding and failure to raise the appellate counsel claim in the
postconviction motion, therefore, does not serve as cause for default.
Furthermore, nothing Applicant asserts in his Application, Reply, or other
pleadings alleges actual innocence as defined above. As a result, because Applicant
cannot meet either the cause and prejudice or actual innocence exceptions, Claim
Three will be dismissed as procedurally barred from federal habeas review.
With respect to Claim Seven(a), I find a review of the substantialness of this
claim is necessary under Martinez. See Martinez, 132 S. Ct. at 1312.
2. Claims One, Two, Four, Five, Six, and Seven(b), (c), (d), and (e)
To exhaust state court remedies, a claim must be presented to the state’s
highest court if review in that court is available. See O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). Colorado law provides that
[i]n all appeals from criminal convictions or postconviction
relief matters from or after July 1, 1974, a litigant shall not be
required to petition for rehearing and certiorari following an
adverse decision of the Court of Appeals in order to be
deemed to have exhausted all available state remedies
respecting a claim of error. Rather, when a claim has been
presented to the Court of Appeals or Supreme Court, and
relief has been denied, the litigant shall be deemed to have
exhausted all available state remedies.
Colo. App. R. 51.1(a). In his concurring opinion in O’Sullivan, Justice Souter provides
an example of when state supreme court review is unavailable. O’Sullivan, 526 U.S. at
849. The language Justice Souter quotes is taken from a South Carolina Supreme
Court decision in In re Exhaustion of State Remedies in Criminal and PostConviction Relief Cases, 471 S.E.2d 454 (1990), and mirrors the language in Rule 51.1,
a litigant shall not be required to petition for rehearing and
certiorari following an adverse decision of the Court of
Appeals in order to be deemed to have exhausted all
available state remedies respecting a claim of error. Rather,
when the claim has been presented to the Court of Appeals
or the Supreme Court, and relief has been denied, the
litigant shall be deemed to have exhausted all available state
Therefore, I find that review in the CSC is not required to exhaust state remedies if the
claim in question was presented fairly to, and relief was denied by, the CCA. I am not
persuaded by Respondents’ arguments to the contrary.
Respondents are correct that, in order to exhaust state court remedies, a claim
must be presented to the state’s highest court if review in that court is available. See
O’Sullivan, 526 U.S. at 845. However, “there is nothing in the exhaustion doctrine
requiring federal courts to ignore a state law or rule providing that a given procedure is
not available.” Id. at 847-48. If a state articulates that a certain avenue for relief is not
part of its standard appellate review process, it is not necessary for a defendant to
pursue that avenue in order to exhaust state remedies. See id.
Pursuant to Colo. App. R. 51.1(a), I find that review in the CSC is not required to
exhaust state remedies if the claim in question was presented fairly to, and relief was
denied by, the CCA. See, e.g., Bahadori v. Milyard, No. 08-cv-005391-WYD, 2010 WL
3002028 (D. Colo. July 29, 2010). As Respondents concede, Applicant fairly presented
Claims One, Two, Four, Five, Six, and Seven(b), (c), (d), and (e) to the CCA in the
postconviction proceedings as federal constitutional claims.
Furthermore, four circuit courts have concluded that state rules similar to Colo.
App. R. 51.1(a) eliminate the need to seek review in the state’s highest court in order to
satisfy the exhaustion requirement. See Lambert v. Blackwell, 387 F.3d 210, 233-34
(3d Cir. 2004); Adams v. Holland, 330 F.3d 398, 401-04 (6th Cir. 2003); Randolph v.
Kemna, 276 F.3d 401, 403-05 (8th Cir. 2002); Swoopes v. Sublett, 196 F.3d 1008,
1009-10 (9th Cir. 1999). “[T]here is nothing in the exhaustion doctrine requiring federal
courts to ignore a state law or rule providing that a given procedure is not available.”
See O’Sullivan, 526 U.S. at 847-48.
I, therefore, find that Claims One, Two, Four, Five, Six, and Seven(b), (c), (d),
and (e) are exhausted.
Accordingly, it is
ORDERED that Claim Three is dismissed as procedurally barred from federal
habeas review. 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 all remaining claims, including the Martinez issue in Claim
Seven(a). It is
FURTHER ORDERED that within thirty days of the filing of an answer Applicant
may file a reply if he desires. It is
FURTHER ORDERED that within thirty days from the date of this Order the
Respondents shall file with the Clerk of the Court, in electronic format if available, a
copy of the complete record of Applicant’s state court proceedings in Case No.
86CR653, including all documents in the state court file and transcripts of all
proceedings conducted in the state court, but excluding any physical evidence (as
opposed to documentary evidence) not relevant to the asserted claims. It is
FURTHER ORDERED that the Clerk of the Court is directed to send copies of
this Order to the following:
Clerk of the Court
Adams County District Court
1100 Judicial Drive
Brighton, Colorado 80601; and
Court Services Manager
State Court Administrator’s Office
101 W. Colfax, Ste. 500
Denver, Colorado 80202.
BY THE COURT:
s/Wiley Y. Daniel
WILEY Y. DANIEL, Senior Judge
United States District Court
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