Frazier v. Allison et al
ORDER of Dismissal. ORDERED that the amended habeas corpus application 6 is denied and the action is dismissed. No certificate of appealability will issue. Leave to proceed in forma pauperis on appeal is denied without prejudice, by Judge Lewis T. Babcock on 4/15/13. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02762-BNB
FELA J. FRAZIER,
MARK ALLISON, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER OF DISMISSAL
Applicant, Fela J. Frazier, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Colorado State
Penitentiary in Cañon City, Colorado. Mr. Frazier initiated this action by filing pro se a
partially legible application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
(ECF No. 1) challenging the validity of a state court criminal conviction. On November
20, 2012, Mr. Frazier filed a legible amended application for a writ of habeas corpus
pursuant to § 2254 (ECF No. 6). Mr. Frazier is challenging the validity of his conviction
in district court case number 07CR487 in El Paso County, Colorado. He has paid the
$5.00 filing fee in a habeas corpus action.
On November 21, 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 January 11, 2013, after being granted an extension of time,
Respondents filed their pre-answer response (ECF No. 14) arguing that Mr. Frazier’s
claim is procedurally defaulted. On January 28, 2013, Mr. Frazier filed a reply (ECF No.
15) to the pre-answer response.
The Court must construe liberally the amended application and other documents
filed by Mr. Frazier 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 deny the application,
and dismiss the action.
I. Background and State Court Proceedings
On August 2, 2007, Mr. Frazier was convicted by a jury in El Paso County District
Court Case No. 07CR487 of escape, a class-three felony. ECF No. 14, ex. A at 1-2, 67. The trial court also found that the prosecution had proved three habitual criminal
counts and sentenced Mr. Frazier to the DOC for a term of forty-eight years. Id. at 5-6.
Following an unsuccessful proportionality review of his sentence on November 13,
2007, ECF No. 14, ex. A at 5, Mr. Frazier filed an appeal on December 19, 2007,
challenging only his sentence. Id., ex. A at 5, ex. C (opening brief in No. 07CA2478).
Tthe Colorado Court of Appeals affirmed on July 7, 2011. Id. at ex. D (People v.
Frazier, No. 07CA2478 (Colo. Ct. App. July 7, 2011) (not published)). On February 6,
2012, the Colorado Supreme Court denied certiorari review. Id. at ex. E.
On March 3, 2012, Mr. Frazier filed a postconviction motion pursuant to Rule 35
of the Colorado Rules of Criminal Procedure with the trial court, which was denied on
April 5, 2012. ECF No. 14, ex. B (Order Regarding Petition for Postconviction Relief
Pursuant to Crim. P. 35(c)). Mr. Frazier did not appeal the denial of the motion. On
April 13, 2012, he filed a second Colo. R. Crim. P. 35(c) postconviction motion. It does
not appear from the state court record that the trial court has ruled on this motion. See
ECF No. 14, ex. A at 4.
On October 17, 2012, Mr. Frazier filed his original habeas corpus application
pursuant to § 2254 in this Court. On November 20, 2012, he filed an amended habeas
corpus application raising the single claim that his rights under the Fourth and
Fourteenth amendments were violated when his parole officer allegedly forged the
arrest warrant affidavit. ECF No. 6.
Respondents do not argue that this action is barred by the one-year limitation
period in 28 U.S.C. § 2244(d). However, Respondents do raise the affirmative defense
of exhaustion of state court remedies. More specifically, Respondents contend that Mr.
Frazier’s claim is unexhausted and procedurally barred.
II. Exhaustion and Procedural Default
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
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).
If a habeas corpus applicant “failed to exhaust state remedies and the court to
which the petitioner would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally barred . . . there is a
procedural default.” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); see also
Harris v. Reed, 489 U.S. 255, 269-70 (1989)); Anderson v. Sirmons, 476 F.3d 1131,
1139 n.7 (10th Cir. 2007) (“‘Anticipatory procedural bar' occurs when the federal courts
apply procedural bar to an unexhausted claim that would be procedurally barred under
state law if the petitioner returned to state court to exhaust it.”) (citation omitted). A
claim is precluded from federal habeas review if the claim has been defaulted in state
court on an independent and adequate state procedural ground, unless the prisoner can
demonstrate cause for the default and actual prejudice as a result of the federal
violation, or demonstrate that failure to consider the claim will result in a fundamental
miscarriage of justice. Coleman, 501 U.S. at 750; Cummings v. Sirmons, 506 F.3d
1211, 1224 (10th Cir. 2007) (citation omitted).
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. Mr. Frazier’s pro
se status does not exempt him from the requirement of demonstrating either cause and
prejudice or a fundamental miscarriage of justice. See Lepiscopo v. Tansy, 38 F.3d
1128, 1130 (10th Cir. 1994).
To demonstrate cause for his procedural default, Mr. Frazier must show that
some objective factor external to the defense impeded his ability to comply with the
relevant procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986); United
States v. Salazar, 323 F.3d 852, 855 (10th Cir. 2003). “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].” McClesky v. Zant, 499 U.S. 467, 493-94
(1991) (internal quotation marks omitted). If Mr. Frazier can demonstrate cause, he
also must show “actual prejudice as a result of the alleged violation of federal 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; see also United States v. Cervini, 379 F.3d 987, 991-92 (10th Cir. 2004). 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). To demonstrate a
fundamental miscarriage of justice, Mr. Frazier 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. He 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.
III. Asserted Claim
Respondents argue that Mr. Frazier failed to satisfy the exhaustion requirement
as to his asserted federal constitutional claim. They specifically contend the claim
appears to have been raised in the first Colo. R. Crim. P. 35(c) postconviction motion
Mr. Frazier filed on March 3, 2012. A review of the order of April 5, 2012, denying the
motion reveals that the claim does appear to have been raised in the March 3 motion.
See ECF No. 14, ex. B. As stated above, Mr. Frazier did not appeal from the April 5
denial, despite his mistaken belief asserted in the reply, ECF No. 15 at 1, that the Colo.
R. Crim. P. 35(c) postconviction motion filed on April 13, 2012, was an appeal. See
ECF No. 14, ex. A at 4. In any event, the time to appeal from the April 5 order denying
the first Colo. R. Crim. P. 35(c) postconviction motion has expired. See Colo. App. R.
4(b) (2011) (subsequently amended and adopted effective December 14, 2011,
effective July 1, 2012, to allow forty-nine days for appeal). Even if Mr. Frazier had
raised the federal constitutional claim in the Colo. R. Crim. P. 35(c) postconviction
motion he filed on April 13, the claim still would not be exhausted because it does not
appear from the state court record that the trial court has ruled on the motion. See ECF
No. 14, ex. A at 4. Finally, the Court notes that a review of Mr. Frazier’s opening brief
on direct appeal confirms that the claim he asserts in this action was not raised on direct
appeal. See ECF No. 14, ex. C.
Respondents further contend Mr. Frazier’s claim is barred by the doctrine of
anticipatory procedural default. As previously stated, Mr. Frazier allowed the time to
appeal from the order of April 5, 2012, denying the first Colo. R. Crim. P. 35(c)
postconviction motion to expire. A new Colo. R. Crim. P. 35(c) postconviction motion
would be rejected as successive and an abuse of process. See Colo. R. Crim. P.
35(c)(3)(VII) (“The court shall deny any claim that could have been presented in an
appeal previously brought or postconviction proceeding previously brought,” subject to
exceptions not applicable here); see also People v. Rodriguez, 914 P.2d 230, 252-55
(Colo. 1996) (any attempt to reassert claims previously waived constitutes an abuse of
As a result, the Court finds that Mr. Frazier’s claim is anticipatorily defaulted, see
Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007), unless he can
demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claim will result in a
fundamental miscarriage of justice. He fails to do so. The claim, therefore, is
procedurally barred from federal habeas review, and will be dismissed.
Therefore, the amended habeas corpus application will be denied because the
asserted claim is procedurally barred.
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 Mr. Frazier files a notice of appeal he also must pay the full $455.00
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.
Accordingly, it is
ORDERED that the amended habeas corpus application (ECF No. 6) is denied
and the action is dismissed because the asserted claim is procedurally barred. 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. It is
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
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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