Hoeck v. Timme et al

Filing 18

ORDER to Dismiss in Part and for Answer re: 1 Application for Writ of Habeas Corpus filed by David B. Hoeck. it is ORDERED that claim 12 of the Application is DISMISSED for failure to state a federal constitutional claim cognizable on federal h abeas review. It is FURTHER ORDERED that within thirty (30) days, Respondent(s) shall file an Answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases that fully addresses the merits of exhausted claims 1-11 of the Application. It is FURTHER ORDERED that within thirty (30) days of the filing of the answer Applicant may file a reply, if he desires. by Judge William J. Martinez on 7/15/2013. (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-00498-WJM-BNB

DAVID B. HOECK,
Applicant,
v.
RAE TIMME, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO DISMISS IN PART AND FOR ANSWER

Applicant, David B. Hoeck, is in the custody of the Colorado Department of
Corrections. He is incarcerated currently at the Colorado Territorial Correctional Facility
in Canón City, Colorado. Mr. Hoeck has filed an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his criminal convictions
in the District Court of Mesa County, Colorado. He has been granted leave to proceed
pursuant to 28 U.S.C. § 1915.
In an April 3, 2013 order, Magistrate Judge Boyd N. Boland directed
Respondents to file a pre-answer response 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). After obtaining an extension of time, Respondents submitted a
pre-answer response on May 23, 2013. Applicant did not file a reply.
The Court must construe liberally the Application filed by Mr. Hoeck 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. For the reasons
stated below, the Application will be dismissed, in part.
I. Background and State Court Proceedings
On February 13, 2008, Mr. Hoeck was convicted by a jury of contributing to the
delinquency of a minor, obstructing a peace officer, and harboring a minor in Mesa
County District Court Case No. 07CR1604. [Doc. # 13-1, at 3]. He was sentenced to an
aggregate term of approximately six and a half years in prison. [Id. at 3-4].
The Colorado Court of Appeals affirmed Mr. Hoeck’s convictions on direct appeal
in People v. Hoeck (Hoeck I), No. 08CA1133 (Colo. App. Aug. 27, 2009) (unpublished
decision). [Doc. # 13-2]. The United States Supreme Court denied Applicant’s request
for certiorari review on October 6, 2003. [Doc. # 13-6].
Mr. Hoeck filed a motion for reconsideration of sentence pursuant to Colo. Crim.
R. Crim. P. 35(b) on January 7, 2010, which was denied by the state district court on
January 11, 2010. [Doc. # 13-1, at 7]. Applicant’s motion for reconsideration of the
state court’s order was denied on February 2, 2009. [Id.].
Mr. Hoeck filed a motion for post-conviction relief pursuant to Colo. R. Crim. P.
35(c) on November 19, 2010, which was denied by the state district court on December
30, 2012. [Id.]. The Colorado Court of Appeals affirmed the trial court’s order in People
v. Hoeck (Hoeck II), 11CA0232 (Colo. App. May 24, 2012). [Doc. # 13-3]. The
Colorado Supreme Court denied Applicant’s petition for certiorari review on January 28,
2013. [Doc. # 13-9].

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Mr. Hoeck initiated this action on February 25, 2013. He asserts the following
claims in the Application:
1) There was insufficient evidence to support Applicant’s conviction for
contributing to the delinquency of a minor. [Doc. # 1, at 2-3].
2) Applicant’s Sixth Amendment right to counsel was violated by the trial
court’s failure to inquire into his dissatisfaction with appointed counsel. [Id.
at 3-4].
3) Applicant’s trial counsel was ineffective in failing to interview and
present at trial witnesses whose testimony would have impeached the
testimony of prosecution witnesses. [Id. at 4-6].
4) Applicant’s trial counsel was ineffective in failing to “investigate”
Applicant’s competency to stand trial in light of his past traumatic head
injuries. [Id. at 6-7].
5) Applicant’s trial counsel was ineffective in failing to “explore other viable
avenues of defense,” specifically: (a) Applicant’s “state of mind and
competency at the time of the alleged defense and during trial”; (b)
questions raised by “alibi and corroborating defense witnesses”; and, (c)
evidence relating to an alternate suspect. [Id. at 7-9].
6) Applicant’s trial counsel was ineffective in failing to review discovery
with Applicant and to keep him informed about the progress of the case.
[Id. at 9-10].
7) Applicant’s trial counsel was ineffective in failing to “consult with expert
witnesses in relation to [Applicant] suffering from PCS, PTSD, and
agoraphobia.” [Id. at 10-12].
8) Applicant’s trial counsel was ineffective in failing to move to exclude
testimony that Applicant did not open his front door for the police and had
juveniles exit his home through a window when the police arrived. [Id. at 814].
9) Applicant’s trial counsel was ineffective based on the cumulative
prejudicial effect of counsel’s errors. [Id. at 14].
10) The trial court “erred” by allowing the state to introduce, at trial,
testimony that Applicant refused to open the door of his home for police
officers. [Id. at 14-15].

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11) Applicant’s appellate counsel was ineffective in failing to seek
certiorari review in the Colorado Supreme Court on direct appeal. [Id. at
15-16].
12) The district court “abused its discretion” by denying Applicant’s
postconviction motion on the basis that he failed to state facts entitling him
to relief; and the court of appeals “substantially erred” by affirming that
ruling on appeal. [Id. at 16-18].
II. Timeliness of Application
Respondents do not challenge the timeliness of the Application under the
one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). [See Doc. # 13, at 6, 1012].
III. Exhaustion of State Remedies 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. 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. 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, 365-66 (1995) (per curiam).
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

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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 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 petitioner “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); Anderson v.
Sirmons, 476 F.3d 1131, 1139-40 n.7 (10th Cir. 2007) (applying anticipatory procedural
bar). A claim that has been procedurally defaulted in the state courts on an
independent and adequate state procedural ground is precluded from federal habeas
review, 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). A petitioner’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).

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A. Claims 3-11
Respondents concede, and Mr. Hoeck’s opening brief in the state court post
conviction proceeding reflects, that Applicant presented claims 3-11 to the Colorado
Court of Appeals and the Colorado Supreme Court as federal constitutional claims.
(See Doc. ## 13-6, at 7-21; 13-8). As such, the Court finds that Mr. Hoeck exhausted
state court remedies for claims 3, 4, 5, 6, 7, 8, 9, 10 and 11.
B. Claims 1 and 2
Respondents contend that Mr. Hoeck failed to exhaust available state remedies
for claims 1 and 2 because he did not present those claims to the Colorado Supreme
Court in a petition for certiorari review.
Applicant raised claims 1 and 2 to the Colorado Court of Appeals in his opening
brief on direct appeal. [Doc. # 13-4]. The Colorado Court of Appeals denied each claim
on the merits. [Hoeck I, Doc. # 13-2].
The Court does not agree that Mr. Hoeck’s failure to present claims 1 and 2 in a
petition for certiorari review renders those claims unexhausted for purposes of federal
habeas review. In order to exhaust state 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.
Therefore, 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.

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The State of Colorado has articulated that review in the Colorado Supreme Court
is not part of the standard state appellate review process. More specifically, the
Colorado Appellate Rules provide that:
In 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. Therefore, the Court finds that review in the Colorado Supreme
Court is not required to exhaust state remedies if the claim in question was presented
fairly to, and relief was denied by, the Colorado Court of Appeals.
Furthermore, the Court’s conclusion is supported by the fact that four circuit
courts have determined that state rules similar to Colo. App. R. 51.1 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 (3d Cir. 2004); Adams v. Holland, 330
F.3d 398, 401-03 (6th Cir. 2003); Randolph v. Kemna, 276 F.3d 401, 404-05 (8th Cir.
2002); Swoopes v. Sublett, 196 F.3d 1008, 1009-10 (9th Cir. 1999). Accordingly, the
fact that Mr. Hoeck did not raise claims 1 and 2 in a petition for certiorari review to the
Colorado Supreme Court does not demonstrate that the claims are unexhausted.
Rather, the Court finds that Applicant exhausted state remedies for claims 1 and 2
because he presented those claims to the Colorado Court of Appeals and the state
appellate court denied relief.

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C.

Claim 12
In claim 12, Mr. Hoeck argues that the state trial court abused its discretion by

refusing to provide him an adequate opportunity to develop the record and failing to hold
an evidentiary hearing before the court denied his motion for post-conviction relief.
Respondents argue that claim 12 is not cognizable on federal habeas review
because it alleges only an error in the State’s post conviction review proceeding. The
Court agrees. See Lopez v. Trani, 628 F.3d 1228, 1229 (10th Cir. 2010) (citing Sellers
v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (“Moreover, because the constitutional
error he raises focuses only on the State's post-conviction remedy and not the judgment
which provides the basis for his incarceration, it states no cognizable federal habeas
claim.”)). Claim 12 therefore will be dismissed.
Accordingly, it is
ORDERED that claim 12 of the Application is DISMISSED for failure to state a
federal constitutional claim cognizable on federal habeas review. It is
FURTHER ORDERED that within thirty (30) days, Respondent(s) shall file an
Answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases that fully
addresses the merits of exhausted claims 1-11 of the Application. It is
FURTHER ORDERED that within thirty (30) days of the filing of the answer
Applicant may file a reply, if he desires.

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DATED this 15th day of July, 2013.

BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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