Maunz v. Colorado Court of Appeal's

Filing 48

ORDER of Dismissal: 29 Amended Application for Writ of Habeas Corpus is denied, as are 45 Motion to Toll Extension/Enlargement, 46 Motion to Dismiss (Vacate) the Colorado Attorney General Office Objection of Applicants Petition/Motion (lack of) Prima Facie, on There [sic] Pre-Answer Response, and 47 Motion for Extension/Enlargement, Applicants Clarification of Intent. No certificate of appealability will issue, and leave to proceed in forma pauperis on appeal is denied without prejudice. By Judge Lewis T. Babcock on 5/17/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02225-BNB
WILLIAM A. MAUNZ,
Applicant,
v.
DAVID M. ZUPAN, Warden, San Carlos Correctional Facility, CDOC, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, William A. Maunz, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) at the San Carlos Correctional Facility in Pueblo,
Colorado. This matter is before the Court on the amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 29) filed pro se by Mr. Maunz
on January 18, 2013. Mr. Maunz is challenging the validity of his conviction in case
number 10CR1101 in the Denver District Court.
The Court must construe the amended application and other papers filed by Mr.
Maunz 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 be an advocate for a pro se litigant. See Hall, 935 F.2d
at 1110. For the reasons stated below, the Court will dismiss the action without
prejudice for failure to exhaust state remedies.
Mr. Maunz was convicted by a jury of second degree burglary and third degree

criminal trespass, and he currently is serving a sentence of five years in prison. (See
ECF No. 35-1 at 12.) He specifically asserts two claims for relief in the amended
application. Mr. Maunz first claims that his constitutional right to a speedy trial was
violated because, although he was arrested on March 5, 2010, and entered a plea of
not guilty on May 4, 2010, his trial did not commence until January 11, 2012. Mr.
Maunz alleges in his second claim that his Eighth Amendment rights were violated
because he was subjected to excessive bail and he was tried under duress after being
assaulted by a deputy sheriff the day his trial commenced. Following his conviction, Mr.
Maunz filed a direct appeal. (See ECF No 35-1 at 9.) The case number for the direct
appeal is 12CA0728. The parties agree that the direct appeal filed by Mr. Maunz in
case number 12CA0728 remains pending in the Colorado Court of Appeals. Mr. Maunz
also has challenged the validity of his conviction in state court by seeking relief in the
Colorado Supreme Court in case number 2012SC877. On January 8, 2013, the
Colorado Supreme Court denied the petition Mr. Maunz filed in case number
2012SC877. (See ECF No. 29 at 17.)
On February 12, 2013, Magistrate Judge 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 February 27, 2013, Respondents filed a Pre-Answer Response (ECF No.
35) arguing that the amended application should be denied without prejudice for failure
to exhaust state remedies.
Mr. Maunz asserts in the amended application that he has exhausted state
2

remedies by seeking review in the Colorado Supreme Court in case number
2012SC877. (See ECF No. 29 at 16-17.) On March 4, 2013, Mr. Maunz filed a PreAnswer Response Reply (ECF No. 37) in which he reiterates that he has exhausted
state remedies by seeking review in the Colorado Supreme Court in case number
2012SC877. Mr. Maunz also filed on March 4, 2013, a motion for extension of time
(ECF No. 38) to file a reply to the Pre-Answer Response and a document titled
“Petition/Motion for Question of Law” (ECF No. 36) in which he stated he was filing a
reply prior to receiving the Pre-Answer Response. On March 7, 2013, Magistrate Judge
Boland granted Mr. Maunz an extension of time until April 15, 2013, to file a reply to the
Pre-Answer Response.
On April 1, 2013, Mr. Maunz filed a Motion for Stay of Proceedings (ECF No. 40)
alleging that he is unable to demonstrate he has exhausted state remedies because his
request for photocopies of certain statutes was denied by a prison official. On April 2,
2013, Magistrate Judge Boland entered a minute order denying the Motion for Stay of
Proceedings because it was “not clear what additional legal research is necessary and
the documentation Applicant provides indicates he can resubmit his legal research
request.” (ECF No. 41.)
On April 11, 2013, Mr. Maunz filed another motion seeking a stay of these
proceedings (ECF No. 42) because he allegedly is unable to obtain the legal research
materials he needs to demonstrate he has exhausted state remedies. Mr. Maunz
clarified in the April 11 motion that, although he has received copies of Title 28 U.S.C.
§§ 2201 and higher, he has not been provided with “Title 28 U.S.C. § sections 211-541
that apply to exhaustion of state remedies.” (ECF No. 42 at 2.) Mr. Maunz also
3

reiterates in the April 11 motion his argument that he has exhausted state remedies
because he sought review in the Colorado Supreme Court in case number 2012SC877.
(See id. at 5, 8-9.) On April 19, 2013, Mr. Maunz filed a “Motion for
Extension/Enlargement (Estoppel)” (ECF No. 43) in which he again alleges he is unable
to obtain the legal research materials he needs to demonstrate he has exhausted state
remedies because he is locked down twenty-three hours each day and his only access
to legal research materials is through written requests.
On April 22, 2013, Magistrate Judge Boland entered an order denying the
amended motion for a stay and granting Mr. Maunz an extension of time until May 10,
2013, to file any further reply to Respondents’ argument that this habeas corpus action
should be dismissed for failure to exhaust state remedies. Magistrate Judge Boland
acknowledged Mr. Maunz’s repeated argument that he has exhausted state remedies
by filing a petition for review in the Colorado Supreme Court in case number
2012SC877 and noted that Mr. Maunz did not need to conduct additional legal research
to identify any other proceeding he has filed that might satisfy the exhaustion
requirement. Magistrate Judge Boland also noted that Mr. Maunz still failed to clarify
what additional arguments he seeks to research or how those arguments are relevant to
the issue of exhaustion of state remedies and, as a result, he failed to demonstrate he
has been denied access to any specific legal research material relevant to his efforts to
exhaust state remedies.
On May 6, 2013, Mr. Maunz filed a “Motion to Toll Extension/Enlargement” (ECF
No. 45) in which he seeks another extension of time until May 15, 2013, to file a reply
although it is not clear why he is requesting that extension. Mr. Maunz also filed on May
4

6, 2013, a “Motion to Dismiss (Vacate) the Colorado Attorney General Office Objection
of Applicant’s Petition/Motion (lack of) Prima Facie, on There [sic] Pre-Answer
Response” (ECF No. 46) in which he contends that Respondents have no valid legal
reason to argue he has failed to exhaust state remedies.
On May 13, 2013, Mr. Maunz filed another motion for an extension of time that is
titled “Motion for Extension/Enlargement, Applicant’s Clarification of Intent, (“ ”
Abeyance)” (ECF No. 47). Mr. Maunz asserts in the May 13 motion that he is seeking
another extension of time because he is locked down twenty-three hours a day and he
is
unable to get supporting annotated notes, statutes or rules,
that support his claim that he has exhausted state remedies
in the Supreme Court of Colo. because of the Law Library
assistant, hisp./female, does not supply the applicant with
what he submitts [sic] on an inmate law library request form
(pink), then writes an [sic] reply that she does.
(ECF No. 47 at 3.) Mr. Maunz again asserts in the May 13 motion that he has
exhausted state remedies by filing a petition for review in the Colorado Supreme Court
in case number 2012SC877. (See id. at 4.)
The May 6 and May 13 motions for an extension of time will be denied because
Mr. Maunz fails to present good cause for a further extension of time. In particular, Mr.
Maunz fails to identify any additional arguments he seeks to research that might be
relevant to the issue of exhaustion of state remedies. Furthermore, because the Court
rejects Mr. Maunz’s argument that he has exhausted state remedies by filing a petition
for review in the Colorado Supreme Court in case number 2012SC877, which is the
only argument Mr. Maunz makes regarding exhaustion, the Court finds that any further

5

extensions of time would be futile. The May 6 motion to dismiss also will be denied and
the Court will consider the exhaustion argument raised by Respondents in their PreAnswer Response.
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.
In addition, 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).
Finally, “[t]he exhaustion requirement is not one to be overlooked lightly.”
6

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).
The Court agrees with Respondents that Mr. Maunz has failed to exhaust state
remedies. First, there is no dispute that case number 12CA0728, Mr. Maunz’s direct
appeal from the judgment of conviction, remains pending in the Colorado Court of
Appeals. The Court also finds that the petition Mr. Maunz filed in the Colorado
Supreme Court in case number 2012SC877 does not satisfy the fair presentation
requirement.
Mr. Maunz contends that he filed case number 2012SC877 pursuant to Rule
50(a) of the Colorado Appellate Rules. Rule 50(a) allows a party to seek a writ of
certiorari in the Colorado Supreme Court before the Colorado Court of Appeals has
rendered judgment in the same case if certain conditions are met. See C.A.R. 50(a).
Because his direct appeal was pending and it was not clear when Mr. Maunz sought
review in the Colorado Supreme Court whether he was filing a petition for writ of
certiorari pursuant to C.A.R. 52(b) or seeking relief under C.A.R. 50, the Colorado
Supreme Court issued an order on October 25, 2012, directing Mr. Maunz to clarify
(1) whether his pleading is a petition for certiorari review
pursuant to C.A.R. 52(b), in which case he shall also explain
why this Court has jurisdiction over the petition in light of the
fact that the Court of Appeals has not yet rendered
judgment; or (2) whether the petition seeks review of the
judgment of conviction [pursuant to C.A.R. 50] before the
Court of Appeals issues an opinion in Case No. 12CA0728,
in which case he shall explain why such review is warranted.
(ECF No. 35-3 at 3.) At the time the Colorado Supreme Court entered this order on

7

October 25, 2012, no case number had been assigned. Ultimately, the Colorado
Supreme Court assigned the matter case number 2012SC877, construed the petition
Mr. Maunz filed as being asserted pursuant to C.A.R. 21, and denied the petition on
January 8, 2013, without addressing the merits of the claims Mr. Maunz raised. (See
ECF No. 29 at 17.)
The petition Mr. Maunz filed in the Colorado Supreme Court does not satisfy the
fair presentation requirement because, if a “claim has been presented [to the state’s
highest court] for the first and only time in a procedural context in which its merits will
not be considered unless there are special and important reasons therefor, . . . [r]aising
the claim in such a fashion does not, for the relevant purpose, constitute fair
presentation.” Castille, 489 U.S. at 351 (internal quotation marks and citation omitted);
see also Parkhurst v. Shillinger, 128 F.3d 1366, 1369 (10th Cir. 1997) (state procedure
that is discretionary and limited in scope does not constitute fair presentation). As noted
above, the Colorado Supreme Court construed Mr. Maunz’s filing in case number
2012SC877 as a petition pursuant to Colorado Appellate Rule 21. The Colorado
Supreme Court, in its discretion, may decline to address the merits of claims asserted in
an original petition for an extraordinary writ. See C.A.R. 21; see also Rogers v. Best,
171 P.2d 769, 770 (Colo. 1946). Furthermore, relief under Colorado Appellate Rule 21
“shall be granted only when no other adequate remedy, including relief available by
appeal . . ., is available.” C.A.R. 21(a)(1). As a result, the denial of an original petition
for an extraordinary writ by the Colorado Supreme Court does not indicate that the court
has considered the merits of the argument. See Bell v. Simpson, 918 P.2d 1123, 1125
n.3 (Colo. 1996).
8

In conclusion, the Court finds that Mr. Maunz fails to satisfy his burden of
showing he has exhausted the available state remedies because he did not fairly
present his claims to the Colorado Supreme Court when he attempted to circumvent the
direct appeal process. Therefore, the action will be dismissed for failure to exhaust
state remedies.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and therefore in forma pauperis
status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). If Applicant files a notice of appeal he also must pay the full $455
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24. Accordingly, it is
ORDERED that Applicant’s “Motion to Toll Extension/Enlargement” (ECF No.
45), Applicant’s “Motion to Dismiss (Vacate) the Colorado Attorney General Office
Objection of Applicant’s Petition/Motion (lack of) Prima Facie, on There [sic] Pre-Answer
Response” (ECF No. 46), and Applicant’s “Motion for Extension/Enlargement,
Applicant’s Clarification of Intent, (“ ” Abeyance)” (ECF No. 47) are DENIED. It is

9

FURTHER ORDERED that the amended habeas corpus application (ECF No.
29) is DENIED and the action is DISMISSED without prejudice for failure to exhaust
state remedies. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right.
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
DENIED without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

17th

day of

May

, 2013.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

10