Harrison v. Ploughe

Filing 17

ORDER Drawing Case. This case shall be drawn to a district judge and to a magistrate judge by Magistrate Judge Boyd N. Boland on 01/24/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02195-BNB
JOHN TIMOTHY HARRISON,
Applicant,
v.
PAMELA PLOUGHE (Warden), and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DRAWING CASE

Applicant, John Timothy Harrison, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Arrowhead Correctional
Center in Cañon City, Colorado. Mr. Harrison initiated this action by filing pro se on
August 17, 2012, an application for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 (ECF No. 1) challenging the validity of his conviction in Jefferson County,
Colorado, district court Case No. 01CR2743. ECF No. 1 is an example of the
convention the Court will use throughout this order to identify the docket number
assigned to a specific paper by the Court's electronic case filing and management
system (CM/ECF). Mr. Harrison has paid the $5.00 filing fee.
On August 29, 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). ECF No. 6. On September 26, 2012, after being granted an extension

of time, Respondents submitted their pre-answer response. ECF No. 14. On October
19, 2012, Mr. Harrison filed a reply (ECF No. 15).
The Court must construe Mr. Harrison’s filings 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 act as
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Upon completion of the
Court’s review pursuant to D.C.COLO.LCivR 8.2C, the Court has determined that this
case does not appear to be appropriate for summary dismissal. Therefore, for the
reasons stated below, the case will be drawn to a district judge and to a magistrate
judge. See D.C.COLO.LCivR 8.2D.
Mr. Harrison was convicted in Jefferson County District Court Case No.
01CR2743 on April 1, 2002, pursuant to a plea agreement for sexual assault on a child
by one in a position of trust, a class-three felony. ECF No. 14 (pre-answer response) at
2, ex. A (state court register) at 11. He was sentenced on May 15, 2002, to eight years
to life. ECF No. 14, ex. A at 11. Mr. Harrison did not appeal directly from the conviction
and sentence.
On June 13, 2002, Mr. Harrison filed with the trial court a postconviction motion
to “Delete Mandatory Parole as Unconstitutional Pursuant to Crim. P. Rule 35(a).” ECF
No. 14, ex. A at 11. On September 13, 2002, Mr. Harrison filed with the trial court a
postconviction motion for sentence reconsideration pursuant to Rule 35(b) of the
Colorado Rules of Criminal Procedure. ECF No. 14, ex. A at 10. On October 10, 2002,
the trial court denied the Rule 35(a) motion. ECF No. 14, ex. A at 10. On June 26,
2003, the trial court granted the Rule 35(b) motion after a hearing (ECF No. 14, ex. A at
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10), and reduced Mr. Harrison’s sentence of eight years to life to four years to life. ECF
No. 14, ex. A at 10. On February 19, 2004, the trial court entered an “Order re: Request
for Reconsideration.” ECF No. 14, ex. A at 10. Respondents contend that it is unclear
from the state court register whether this order was in response to another motion for
reduction of sentence not noted on the register; failed to address the additional state
history of this case; and argued that the instant action is time-barred. The Court has
attempted to piece together the remaining relevant state court history.
On December 20, 2004, Mr. Harrison filed another Colo. R. Crim. P. 35(a)
postconviction motion, ECF No. 14, ex. A at 10, which the trial court denied on
December 27, 2004. ECF No. 14, ex. A at 9. On February 13, 2007, the Colorado
Court of Appeals affirmed. ECF No. 14, ex. A at 8; see also People v. Harrison, 165
P.3d 859, 860 (Colo. Ct. App. 2007). On August 27, 2007, the Colorado Supreme Court
denied certiorari review. ECF No. 14, ex. E; see also ECF No. 14, ex. A at 8. On June
8, 2009, Mr. Harrison filed another Colo. R. Crim. P. 35(a) motion, which the trial court
denied on June 26, 2009. ECF No. 14, ex. A at 8. On July 16, 2010, the Colorado
Court of Appeals affirmed. ECF No. 14, ex. H (People v. Harrison, No. 09CA1670
(Colo. Ct. App. July 15, 2010) (not published)). On January 3, 2011, the Colorado
Supreme Court denied certiorari review. ECF No. 14, ex. K; see also ECF No. 14, ex. A
at 7. Afterwards, on a date the Court is unable to discern, Mr. Harrison filed another
Colo. R. Crim. P. 35(a) postconviction motion, which the trial court denied on June 23,
2011, but amended his mittimus to read “Indeterminate period of parole. Parole shall be
determined under the provisions of C.R.S. 18-1.3-1006(1)(B).” ECF No. 14, ex. N
(People v. Harrison, No. 11CA1410 (Colo. Ct. App. Dec. 15, 2011) (unpublished)) at 4.
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On August 17, 2012, Mr. Harrison initiated the instant action by filing his habeas
corpus application. ECF No. 1. He asserts one claim, i.e., that changes in Colorado’s
sentencing statutes before he originally was sentenced retroactively increased the
severity of the parole component of his prison sentence in violation of the United States
Constitution’s prohibition on ex post facto laws. Id. at 7-8.
Respondents argue that this action is barred by the one-year limitation period in
28 U.S.C. § 2244(d). Section 2244(d) provides as follows:
(1) A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall
run from the latest of–
(A) the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;
(B) the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
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subsection.
28 U.S.C. § 2244(d).
The Court will defer ruling on Respondents’ time-bar argument because the
current record is unclear. A thorough discussion of the state court history of Mr.
Harrison’s criminal case is missing from the pre-answer response. In addition,
Respondents’ time-bar argument is based, at least in part, on a motion for reduction of
sentence, which is not noted on the state court register of actions, and the disposition of
which is unclear based on the cursory reference to an “Order re: Request for
Reconsideration” dated February 19, 2004, contained in the state court register. ECF
No. 14, ex. A at 10.
In addition, Respondents’ argue that Mr. Harrison failed to exhaust state court
remedies for his asserted claim. 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.
The “substance of a federal habeas corpus claim” must have been presented to
the highest state court 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
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(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).
Respondents argue that Mr. Harrison’s claim was not presented fairly to the state
courts. They contend “[t]he closest he has come is to reference the ex post facto clause
in what amount to parenthetical case explanations (though parentheses were not used)
in the context of arguing that his sentence violates state sentencing statutes.” ECF No.
14 at 13. The Court disagrees. In his opening brief in People v. Harrison, No.
09CA1670, Mr. Harrison asserts:
Defendant herein asserts that any sentence (as well as any
parole) imposed upon him by the court must be in full
compliance with the sentencing and parole statutes for the
State of Colorado in effect at the time the offense was
committed. This is supported by the Colorado Supreme
Court’s Ruling in the case of Delgado v. People, 105 P.3d
634, 637 (Colo. 2005), and the Colorado Court of Appeals
Ruling in People v. Tolbert, Case Number 05CA1836 3 May,
2007, as well as the Ex Post Facto Prohibitions of the [sic]
both the Federal and State Constitutions.

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ECF No. 14, ex. F. Mr. Harrison’s reference to the ex post facto prohibitions of the
federal constitution was sufficient to put the state courts on notice that he was raising a
federal constitutional claim. See Duncan, 513 U.S. at 365-66. Therefore, this case will
be drawn to a district judge and a magistrate judge. The Court will enter a separate
order for the state court record and for an answer.
Accordingly, it is
ORDERED that this case shall be drawn to a district judge and to a magistrate
judge.
DATED January 24, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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