Hodge v. Miller et al

Filing 43

ORDER that the pro se Application for a Writ of Habeas CorpusPursuant to 28.S.C. § 2254 1 , filed by Applicant Blanch Hodge, Jr., on March 18,2013, is DENIED and this case is DISMISSED WITH PREJUDICE by Judge Raymond P. Moore on 1/24/2014. (trlee, ) Modified on 1/24/2014 to correct a typo (trlee, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13-cv-00706-RM
BLANCH HODGE, JR.,
Applicant,
v.
MICHAEL MILLER, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on the pro se Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (“Application”) (ECF No. 1), filed by Applicant
Blanch Hodge, Jr., on March 18, 2013. Respondents answered the Application (ECF
No. 38), and Applicant was afforded an opportunity to file a reply or traverse. After
reviewing the pertinent portions of the record in this case including the Application, the
Answer, and the state court record, the Court concludes that the Application should be
denied.
I. BACKGROUND
On May 26, 1999, Applicant was convicted, pursuant to his guilty plea, of first
degree burglary and third degree sexual assault in El Paso County District Court Case
No. 99CR147. (ECF No. 16-1, at 2 of 26). He was sentenced to a 30-year prison term
with the Colorado Department of Corrections. (Id. at 25). Applicant did not file a direct
appeal from his conviction.

On October 12, 1999, Applicant filed a motion to reconsider his sentence
pursuant to Colo. R. Crim. P. 35(b). (Id. at 25). The trial court denied the motion and
Applicant did not appeal. (Id. at 24-25).
On October 31, 2001, Applicant filed a motion to correct an illegal sentence,
which was denied by the trial court. (Id. at 23). On appeal, the Colorado Court of
Appeals vacated Applicant’s sentence and remanded for sentencing. See People v.
Hodge, 02CA0341 (Colo. App. Sept. 4, 2003) (unpublished). (ECF No. 16-2). On April
22, 2004, the trial court resentenced Applicant to twenty-four years in the CDOC. (ECF
No. 16-1, at 19).
On May 12, 2004, Applicant filed a motion to withdraw his plea and to set aside
his sentence. (Id.). The trial court denied the motion on June 14, 2004. (Id.). Applicant
appealed, claiming that he was denied his constitutional right to counsel and a hearing
at resentencing. (ECF No. 16-4). Applicant also raised several challenges to the
validity of his guilty plea. (Id.). The Colorado Court of Appeals affirmed the trial court’s
ruling that Applicant’s challenges to his guilty plea were time-barred in People v. Hodge,
04CA1255 (Colo. App. March 30, 2006) (unpublished). (Doc. No. 16-7, at 5-8).
However, the state appellate court also vacated Applicant’s sentence and remanded for
resentencing on the bases that Applicant was improperly denied counsel at the
resentencing hearing and the district court incorrectly believed that the twenty-four year
sentence was automatic. (Id. at 4-5). The state district court resentenced Applicant to a
twenty-four year prison term on August 25, 2006. (Id. at 15).
In the meantime, Applicant filed another post-conviction motion on July 20, 2004.
(ECF No. 16-1, at 19). The trial court denied the motion and Applicant’s appeal was
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dismissed on December 8, 2004. (Id. at 17).
On August 22, 2006, Applicant filed a motion to withdraw his guilty plea pursuant
to Colo. Crim. P. 32(d). The trial court denied the motion on August 25, 2006. (Id. at
15). On appeal, the Colorado Court of Appeals held that Applicant’s advisement at the
providency hearing concerning his possible sentence was defective, and remanded the
case to the trial court for an evidentiary hearing to determine whether the error was
harmless. See People v. Hodge, 205 P.3d 481 (Colo. App. 2008).
On remand, the trial court denied the motion following an evidentiary hearing.
(ECF No. 16-1, at 12). During the remand proceeding, Applicant also raised a claim
under Colo. Crim. P. 35(a) that his sentence was illegal, which the trial court denied on
October 20, 2009. (Id. at 11-12). The Colorado Court of Appeals affirmed both orders
on direct appeal in People v. Hodge, 09CA2580 (Colo. App. July 5, 2012) (unpublished).
(ECF No. 16-21). The Colorado Supreme Court denied Applicant’s petition for certiorari
review on December 20, 2012. (ECF No. 16-23).
Applicant initiated this action on March 18, 2013, asserting three claims for relief:
(1) that his guilty plea was not knowing, intelligent and voluntary, in violation of due
process; (2) that his aggravated range sentence violates his constitutional rights as
articulated in Blakely v. Washington, 542 U.S. 296 (2004), because the only factor relied
on by the sentencing court to aggravate his sentence was his probationary status, and
the probationary sentence was found to be illegal; and, (3) the trial court erred in failing
to vacate his sentence before conducting a Colo. Crim. P. 32(d) hearing on a motion to
withdraw his guilty plea on remand from the Colorado Court of Appeals. (ECF No. 1, at
47-52).
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Respondents raised the following arguments in their Pre-Answer Response: (1)
the Application is barred by the one-year limitation period in 28 U.S.C. § 2244(d); (2)
claim two was procedurally defaulted in the state courts; and, (3) claim three does not
present a federal question cognizable on federal habeas corpus review. (ECF No. 16).
In a previous order, the Court determined that claim one is time-barred and that claim
three fails to invoke this Court’s federal habeas jurisdiction. (ECF No. 27). The Court
thus dismissed claims one and three. (Id.). The Court further found that Applicant
exhausted state remedies for his second claim. (Id. at 11). The Court addresses the
merits of claim two below.
II. LEGAL STANDARDS
A. 28 U.S.C. § 2254
A § 2254 Application can be granted only if the adjudication of the applicant’s
claim resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court of
the United States, or resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d).
Pursuant to § 2254(e)(1), the court must presume that the state court's factual
determinations are correct and the applicant bears the burden of rebutting the
presumption by clear and convincing evidence.
B. PRO SE LITIGANT
Applicant is proceeding pro se. The court, therefore, “review[s] his pleadings and

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other papers liberally and hold[s] them to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted); see also Haines v. Kerner, 404 U.S. 519, 520–21 (1972). However, a pro se
litigant's “conclusory allegations without supporting factual averments are insufficient to
state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). A court may not assume that an applicant can prove facts that have not been
alleged, or that a respondent has violated laws in ways that an applicant has not
alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,
459 U.S. 519, 526 (1983). An applicant's pro se status does not entitle him to an
application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
III. MERITS
In claim two of the Application, Applicant asserts that the aggravated range
sentence violates his constitutional rights as articulated in Blakely v. Washington, 542
U.S. 296 (2004), because the only factor relied on by the sentencing court to increase
his sentence was his probationary status, and the probationary sentence was found to
be illegal. (ECF No. 1, at 50-52).
As relevant here, Applicant pleaded guilty in the state district court to First
Degree Burglary, a class three felony. (State Court R. 5/26/99 Hrg. Tr.). In Colorado,
the presumptive range sentence for a class three felony is four to twelve years. See
COLO. REV. STAT. (“C.R.S.”) § 18-1.3-401(1)(a)(V)(A) (2012). “Under the Colorado
sentencing scheme, a trial court must impose a sentence within the applicable
presumptive range for a felony offense unless it finds that extraordinary mitigating or
aggravating facts are present.” Allen v. Reed, 427 F.3d 767, 772 (10th Cir. 2005) (citing
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People v. Leske, 957 P.2d 1030, 1042-43 (Colo. 1998)); see also § 18-1.3-401(6),
C.R.S. (2012) (sentencing court may impose a sentence of up to twice the maximum in
the presumptive range if the court finds aggravating circumstances). Here, the state
district court determined that Applicant’s probationary status was an aggravating factor
that justified a 24-year sentence. (State Court R., 8/25/06 Sentencing Hrg. Tr. at 1920); see also § 18-1.3-401(8), C.R.S. (2012) (requiring imposition of a sentence of “at
least midpoint in the presumptive range but not more than twice the maximum term
authorized in the presumptive range,” where the offender was on probation at the time
of the offense).
In 2009, Applicant raised a claim before the state post-conviction court, pursuant
to Colo. R. Crim. P. 35(a), that his sentence was aggravated illegally based on his
probationary status because state law precluded him from serving a probation sentence
in his earlier case at the time he committed the current offense. (State Court R., Court
File, October 30, 2009 Order; ECF No. 16-21, at 4). The state appellate court agreed
that the trial court lacked authority to impose probation in the earlier case, see ECF No.
16-21, at 4, but nonetheless determined that the sentence was proper based on
Applicant’s criminal history. The Colorado Court of Appeals rejected Applicant’s claim
on the following grounds:
Relying on [Colorado case law], [Applicant] argues that “we cannot
be certain that the trial court would have imposed the same sentence,”. . .
had it not been able to rely on his probationary status to aggravate the
sentence. But in [the state law cases], the trial courts did not cite any
other aggravating circumstances in imposing the sentences. . . .
Here, however, in addition to [Applicant’s] probationary status, the
trial court also noted [Applicant’s] criminal history (“And based on that I do
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believe based on your criminal history, the fact that when you did this you
were on probation”). See Lopez v. People, 113 P.3d 713, 731 (Colo.
2005) (“One Blakely-compliant or Blakely-exempt factor is sufficient to
support an aggravated sentence” and “satisfied constitutional and
statutory requirements for the protection of defendants.”). Under section
18-1.3-401(6), C.R.S. 2011, the court was authorized to expand the
sentence range to twenty-four years if it found such an extraordinary
aggravating circumstance. See People v. Zuniga, 80 P.3d 965, 972 (Colo.
App. 2003) (“A trial court may properly consider the defendant’s criminal
history . . . as [an] aggravating factor [ ].”) Further, the record supports the
trial court’s finding on prior criminality and [Applicant] does not dispute it.
Accordingly, we conclude that [Applicant’s] sentence was proper.
People v. Hodge, 09CA2580 (Colo. App. July 5, 2012) (unpublished) (ECF No. 16-21, at
5-6).
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that
any fact other than a prior conviction that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proven beyond a
reasonable doubt to comply with the Sixth Amendment. In Blakely, the Supreme Court
clarified that the rule of Apprendi applies when the sentence is enhanced beyond the
prescribed “statutory maximum,” which the Supreme Court has defined as the maximum
sentence a judge may impose based on the verdict alone, “without any additional
findings.” 542 U.S. at 303-304. Prior convictions are exempt from the rule of Apprendi.
See Apprendi, 530 U.S. at 476, 490; see also Hunter v. Werholtz, 505 F.3d 1080, 1082
(10th Cir. 2007) (holding that Apprendi does not require a state to prove beyond a
reasonable doubt facts related to prior convictions).
The Colorado Court of Appeals’ determination of Applicant’s claim did not run
afoul of Apprendi and Blakely. The Lopez decision is consistent with the rules of
Apprendi and Blakely. The state sentencing court properly considered Applicant’s prior
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convictions to aggravate his sentence beyond the statutory maximum without offending
the Constitution. The state court’s factual determination that Applicant had prior felony
convictions is presumed correct in this federal habeas proceeding and is supported by
the state court record. (See State Court R., Sentencing Hrg. Tr., at 13 (discussing prior
felony convictions for criminal trespass and attempted escape), and 19 (“based on your
criminal history. . . “); see also Presentence Report (filed under seal) (detailing prior
felony and misdemeanor convictions)). Applicant has not pointed to any clear and
convincing evidence to demonstrate otherwise. Accordingly, the Court finds that the
state appellate court’s decision comported with federal law and was a reasonable
determination of the facts based on the evidence presented in the state court
proceeding. Claim two therefore will be dismissed.
IV. ORDERS
It is HEREBY ORDERED that the pro se Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 [# 1], filed by Applicant Blanch Hodge, Jr., on March 18,
2013, is DENIED and this case is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that all pending motions are DENIED as moot.
FURTHER ORDERED that there is no basis on which to issue a certificate of
appealability pursuant to 28 U.S.C. § 2253(c). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. 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 must also pay the full $505 appellate
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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.
Dated January 24, 2014, at Denver, Colorado.
BY THE COURT:

__________
RAYMOND P. MOORE
United States District Court Judge

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