Dominguez v. Archuleta et al

Filing 16

ORDER of Dismissal in Part and for Answer. ORDERED that Claims Two and Three are dismissed as procedurally barred from federal habeas review. ORDERED that the Motion for Sanctions, ECF No. 13, is denied as meritless. ORDERED that within thirty da ys Respondents are directed to file an answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases that fully addresses the merits of Claims One and Four. ORDERED that the clerk of the court is directed to send copies of this Order to the following: Clerk of the Court Rio Blanco District Court P.O. Box 1150 555Main Street Meeker, Colorado 81641 and Court Services Manager State Court Administrator's Office 1300 Broadway Denver, Colorado 80203 by Judge Robert E. Blackburn on 10/09/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Robert E. Blackburn

Civil Action No. 13-cv-01576-REB

FRANCISCO DOMINGUEZ,
Applicant,
v.
LOU ARCHULETA, Warden, F.C.F., and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL IN PART AND FOR ANSWER
Blackburn, J.

Applicant, Francisco Dominguez, a state prisoner in the custody of the Colorado
Department of Corrections, currently is incarcerated at the Fremont Correctional Facility
in Cañon City, Colorado. Applicant, acting pro se, filed an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254, in which he challenges the validity of his
conviction and sentence in the District Court of Rio Blanco County, Colorado, in case
number 1997CR29.
On June 18, 2013, the Honorable Boyd N. Boland, a United States magistrate
judge for the District of Colorado, 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). Respondents submitted a Response on July 24, 2013, and Applicant
submitted a Reply to the Response on August 28, 2013.

I must and do construe liberally the Application and Reply filed by Applicant
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, I do
not “assume the role of advocate for the pro se litigant.” See Hall, 935 F.2d at 1110.
Applicant pled guilty to murder in the second degree and was sentenced on May
20, 1998, to thirty-six years of incarceration plus five years of mandatory parole.
Application, ECF No. 1, at 2; Pre-Answer Resp, ECF No. 9-1, App. A at 6. On October
12, 1999, the Colorado Court of Appeals (CCA) affirmed Applicant’s conviction and
sentence, and on March 13, 2000, the Colorado Supreme Court (CSC) denied
Applicant’s petition for writ of certiorari. App. A at 6; ECF No. 9-6, App. F.
Applicant raises four claims in this action, including: (1) denial of due process
and ineffective assistance of counsel, claiming that his trial counsel coerced him to
plead guilty; (2) denial of due process, claiming that the trial court failed to advise him
regarding all possible sentences resulting in an unknowing and involuntary plea; (3)
denial of due process, claiming that the trial court failed to advise him of the five-year
parole resulting in an unknowing and involuntary plea; and (4) denial of due process,
claiming that the interpreter did not properly interpret the plea advisement and
ineffective assistance of counsel, claiming that trial counsel would not address the
allegedly flawed interpretation.
Respondents argue that this action is untimely under the one-year limitation
period set forth in 28 U.S.C. § 2244(d)(1). 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
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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 postconviction 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 subsection.
28 U.S.C. § 2244(d).
Since Applicant did not file a petition for certiorari with the United States
Supreme Court, Applicant’s conviction became final on June 12, 2000, when the time
expired for seeking review in the United States Supreme Court. See Locke v. Saffle,
237 F.3d 1269, 1273 (10th Cir. 2001) (citing Rhine v. Boone, 182 F.3d 1153, 1155 (10th
Cir. 1999); see also Sup. Ct. R. 13.1 and 30.1. Accordingly, for purposes of § 2244(d),
time began to run on June 13, 2000, the day after Applicant’s conviction and sentence
became final. See United States v. Hurst, 322 F.3d 1256, 1260.
I must determine next whether any of Applicant’s state postconviction motions
tolled the one-year limitation period. Pursuant to 28 U.S.C.§ 2244(d)(2), a properly filed

3

state court post-conviction motion tolls the one-year limitation period while the motion is
pending. The issue here is whether Applicant’s first postconviction motion brought
under Rule 35(b) of the Colorado Rules of Criminal Procedure (Crim. P.) was properly
filed and tolled the limitation period from June 13, 2000, through June 12, 2001.
Respondents contend that when Applicant submitted the Crim. P. 35(b) motion to the
state court, he was represented by counsel and thus was prohibited from filing pro se
pleadings. In the alternative, Respondents argue that, even if the Crim. P. 35(b) motion
was properly filed, Applicant abandoned the motion no later than March 31, 2008, and
thus from March 31, 2008, until June 2011, no postconviction motion was pending in
state court.
In his Reply, Applicant asserts that he was not represented by counsel when he
filed the Crim. P. 35(b) motion, because counsel withdrew on the completion of
Applicant’s direct appeal, which is the standard practice for attorneys in Colorado and
consistent with prevailing case law that there is no constitutional right to assistance of
counsel on collateral review. Applicant contends further that the state court registry1
shows that he was not represented by counsel when the Crim. P. 35(b) motion was filed
in May 2000, because he filed a motion for appointment of counsel in October 2000,

1

Applicant filed a motion for sanctions claiming that Respondents purposely provided
incomplete information to the Court by attaching only a partial state court registry from the state
trial court. Applicant attached part of the registry that he claims Respondents failed to provide
to the Court. A review of ECF No. 9-1, App. A to the Pre-Answer Response, indicates that the
registry Respondents submitted to the Court includes the same entries as Applicant as provided
in the copy of the registry he attached to his Reply. Respondents, therefore, have not acted in
bad faith. I find, which even Applicant suggests, that possibly Respondents inadvertently failed
to provide the complete registry in the copy of the Appendix A that they sent to Applicant. Given
that Applicant had a complete copy of the registry, no harm was caused Applicant. The Motion
for Sanctions Under Fed. R. Civ. P. 11(c) will be denied.

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which motion was granted in November 2001 when the trial court finally realized that
counsel had not been appointed. In support of his argument, Applicant asserts that had
his Crim. P. 35(b) motion not been considered as properly filed on May 9, 2000,
because he was represented by counsel at that time, counsel would have defaulted on
the motion for not filing it within the 120-day time limitation and the trial court would not
have been able to address the Rule 35(b) motion in its order entered on April 21, 2011,
for lack of jurisdiction.
I have reviewed the April 21, 2011, order entered by the Rio Blanco Combined
Courts that is attached to Applicant’s Reply. Reply, ECF No. 12, at 8. Without question
the April 21 order addresses the Crim. P. 35(b) motion. The trial court set forth in the
April 21 order a chronological history of Applicant’s postconviction filings. The trial court
found that Applicant’s counsel filed a timely Rule 35(b) motion and, therefore,
addressed the motion on the merits. Id. at 12. I find that Applicant did not abandon the
Crim. P. 35(b) motion, and thus the time from June 13, 2000, the day after Applicant’s
conviction and sentence became final, until April 29, 2013, when the CSC denied a
petition for certiorari review in Applicant’s Crim. P. 35(c) postconviction motion, was
tolled for the purpose of § 2244(d)(2). Since Applicant filed this action on June 14,
2013, only forty-six days have run under § 2244(d). Thus, I conclude that the
Application is timely.
Next, I address the issue of exhaustion of state remedies. 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

5

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. People, 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).
“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).
Claims are precluded from federal habeas review when the claims have been

6

defaulted in state court on an independent and adequate state procedural ground.
Steele v. Young, 11 F.3d 1518, 1521 (10th Cir. 1993) (citations omitted). “A state
procedural ground is independent if it relies on state law, rather than federal law, as the
basis for the decision . . . . For the state ground to be adequate, it must be strictly or
regularly followed and applied evenhandedly to all similar claims.” See Hickman v.
Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (internal quotations and citations
omitted).
The Colorado Rules of Criminal Procedure prohibit successive postconviction
Rule 35 motions with limited exceptions. See Crim. P. 35(c)(3)(VI) and (VII) (explaining
that claims “raised and resolved” or “that could have been presented” in a prior appeal
or post-conviction proceeding will generally be denied); see also People v. Bastardo,
646 P.2d 382, 383 (Colo. 1982) (stating that postconviction review is not available to
address under a recently contrived constitutional theory issues that were raised
previously). Crim. P. 35 proceedings prevent injustices afer conviction and sentencing,
but do not provide perpetual review. See People v. Rodriguez, 914 P.2d 230, 249
(Colo. 1996) (citing People v. Hampton, 528 P.2d 1311, 1312 (1974)). Applicant cannot
use a Crim. P. 35(c) proceeding to relitigate matters fully and finally resolved in a
previous appeal. Rodriguez, 914 P.2d at 249 (citations omitted). Also, if it is obvious
that an unexhausted claim would be procedurally barred in state court, then the claim is
subject to an anticipatory procedural bar, see Anderson v. Sirmons, 476 F.3d 1131,
1139 n.7 (10th Cir. 2007), and is procedurally barred from federal habeas review,
Steele, 11 F.3d at 1524 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

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As a general rule, federal courts “do not review issues that have been defaulted
in state court on an independent and adequate state procedural ground, unless the
default is excused through a showing of cause and actual prejudice or a fundamental
miscarriage of justice.” Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998).
Application of this rule of procedural default in the habeas corpus context is based on
principles of comity and concerns of federalism. See Coleman, 501 U.S. at 730. A
federal court may proceed to the merits of a procedurally defaulted habeas claim if the
applicant establishes either cause for default and actual prejudice or fundamental
miscarriage of justice if the merits of a claim are not reached. See Demarest v. Price,
130 F.3d 922, 941 (10th Cir. 1997). Applicant’s pro se status does not exempt him from
the requirement of demonstrating cause for the default and actual prejudice or failure as
a result of the alleged violation of federal law or demonstrating that failure to consider
the claims will result in a fundamental miscarriage of justice. See Lepiscopo v. Tansy,
38 F.3d 1128, 1130 (10th Cir. 1994).
To demonstrate cause for a procedural default, Applicant must show that some
objective factor external to the defense impeded his ability to comply with the state’s
procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). “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].” McCleskey v. Zant, 499 U.S. 467,
493-94 (1991) (internal quotation marks omitted). Ineffective assistance of counsel may
establish cause excusing a procedural default. Jackson, 143 F.3d at 1319. Applicant,

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however, must show “some objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule” and have “presented to the state
courts as an independent claim before it may be used to establish cause for a
procedural default.” Murray, 477 U.S. at 488-89.
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. 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). In order
to demonstrate a fundamental miscarriage of justice, Applicant 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. Applicant 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.
I address each claim individually as follows. Respondents assert that, in Claim
One, Applicant is claiming ineffective assistance of counsel because trial counsel
allegedly coerced him into pleading guilty. Respondents contend that Claim One is
procedurally defaulted because Applicant failed to present this specific ineffective
assistance of counsel claim in either Dominguez I (direct appeal) or Dominguez II
(collateral appeal). Respondents contend further that Applicant’s statement in
Dominguez I, that counsel’s coercion rendered his guilty plea involuntary under the
Fourteenth Amendment does not raise an ineffective assistance of counsel claim and

9

that a substantively invalid guilty plea claim is insufficient to exhaust an ineffective
assistance of counsel claim based on the same underlying defect. Respondents
contend also that, although the CCA addressed an ineffective assistance of counsel
claim in Dominguez II, the claim was different than what he raises now in Claim One
and thus could not be found to exhaust Claim One.
Respondents assert further that Claim One is time barred under §16-5-402,
C.R.S. (three-year time limit on postconviction challenges), and Crim. P. 35(c)(3)(VII)
(claim is subject to dismissal if could have been raised in prior appeal or postconviction
proceeding). Finally, Respondents contend that Applicant does not allege cause and
prejudice or a fundamental miscarriage of justice to excuse the anticipatory default of
Claim One and his under claim under Martinez v. Ryan, 132 S. Ct. 1309 (2012) fails to
present a substantial claim and cannot be relied to waive procedural defaults based on
an omission during postconviction appeals.
Applicant counters that both his claims for want of due process and ineffective
assistance of counsel are exhausted with respect to the coercion issue. Applicant
contends that he clearly raised the issue because he attempted to withdraw his guilty
plea based on the coercion. He contends also that counsel in his collateral proceeding
should have raised a separate/independent claim of ineffective assistance and that the
failure to do so is a basis to waive any procedural default under Martinez. Nonetheless,
Applicant argues that he did raise both a due process and ineffective assistance of
counsel claim with respect to the coercion issue.
I have reviewed the opening briefs in Applicant’s direct appeal and his Crim. P.

10

35(c) appeal. In the direct appeal, Applicant challenged the trial court’s abuse of
discretion in refusing to allow Applicant to withdraw his plea. Pre-Answer Resp., ECF
No. 9-10, App. J. In support of the claim, Applicant claimed that trial counsel coerced
him into accepting the plea. The CCA addressed Applicant’s claim as an abuse of
discretion by the trial court in not allowing him to withdraw his guilty plea. Specifically,
however, the CCA found that Applicant “met with counsel on numerous occasions,
asked questions regarding both the plea and going to trial, was given advice based on
sound professional experience, and was not unduly pressured by time constraints.” Id.,
ECF No. 9-8, App. H at 4. Also, I have reviewed the trial court’s order denying
Applicant’s postconviction motions. I find that the trial court denied Applicant’s
ineffective assistance of counsel claim based on coercion because the claim was
addressed and rejected on direct appeal. Reply Attach. at 17.
An ineffective assistance of counsel claim is brought in a postconviction
proceeding under Crim. P. 35(c) and not on direct appeal. Ardolino v. People, 69 P.3d
73, 77 (Colo. 2003). If, however, a claim in a Crim. P. 35(c) postconviction motion is
only slightly different from a claim raised on direct appeal, a postconviction motion is
“precluded if its review would be nothing more than a second appeal addressing the
same issues on some recently contrived constitutional theory.” Dunlap v. People, 173
P.3d 1054, 1093 (Colo. 2007) (quoting People v. Rodriguez, 914 P.2d 230, 249 (Colo.
1996) (internal quotation omitted). I, therefore, find an adequate legal basis for the trial
court’s denial of Applicant’s coercion claim. Given the underlying basis for Applicant’s
coercion claim on direct appeal, both the due process and ineffective assistance of

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counsel claims were at issue and are exhausted.
Respondents contend that in Claim Two Applicant asserts he was misadvised
when he was told the minimum sentence was eight years, when, in fact, it was greater.
Respondents contend that Applicant has not exhausted this claim because, although in
Dominguez II he asserted a claim that his plea was invalid based on a
misunderstanding of the sentencing range, he did not state that the lack of
understanding resulted from the trial court’s incorrect advisement regarding the
minimum sentence. Respondents contend also that in Dominguez I Applicant
challenged his plea based only on undue influence and not on the trial court’s failure to
properly advise him about the minimum sentence and that in Dominguez II, although he
asserted his plea was invalid due to a lack of understanding of the sentencing range, he
did not state the trial court’s advisement regarding the minimum sentence was incorrect.
Respondents conclude that Claim Two was not fairly presented to the CCA, and thus
the claim now is time barred pursuant to §16-5-402, C.R.S. Finally, Respondents argue
that Applicant’s reliance on Martinez is misplaced because a postconviction counsel’s
failure to assert a particular due process challenge to a plea’s validity falls outside of
Martinez.
In his Reply, Applicant concedes Claim Two was not presented to the state
courts, but he contends he has shown cause for procedural default under Martinez.
I conclude that Applicant fails to demonstrate a cause for his procedural default
in Claim Two. Under Coleman v. Thompson, 501 U.S. 722, 752 (1991), habeas
petitioners have no constitutional right to postconviction counsel in the first instance,

12

and inadequate performance by counsel does not excuse procedural default. In
Martinez, the Supreme Court held that where a state permits a defendant to challenge
the assistance of trial counsel only in a postconviction proceeding, then the absence of
postconviction counsel or ineffective assistance of post-conviction counsel in the
postconviction proceeding can constitute cause for the habeas petitioner’s default of
claims of ineffective assistance of trial counsel. Id. at 1318. Martinez was also clear
about what it did not hold. See Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir.
2012). “[I]n no uncertain terms . . . ‘[t]he rule of Coleman governs in all but the limited
circumstances recognized here.’ ” Id. (quoting Martinez, 132 S. Ct. at 1320). “Martinez
applies only to “a prisoner’s procedural default of a claim of ineffective assistance at trial
. . . .’” Id. (quoting Martinez, 132 S. Ct. at 1315). Here, Applicant is challenging
postconviction counsel’s failure to present the substance of Claim Two, which is a claim
for denial of due process. The failure of postconviction counsel to raise a due process
claim in the postconviction motion, therefore, does not serve as cause for default based
on Martinez. Furthermore, nothing Applicant asserts in his Application, Reply, or other
papers satifies either the cause and prejudice or a fundamental miscarriage of justice
exceptions. Claim Two, therefore, will be dismissed.
Respondents assert that in Claim Three Applicant is claiming his guilty plea is
invalid because the providency court failed to advise him that he must serve a
mandatory, five-year period of parole on his release from prison. Respondents contend
that Applicant failed to present this due process claim to the CCA in either Dominguez I
or Dominguez II. Respondents conclude that because Applicant offers no cause,

13

prejudice, or fundamental miscarriage of justice, and because Martinez does not excuse
the default, the claim is defaulted.
In his Reply, Applicant again concedes, as he does with Claim Two, that this
claim was not presented to the state courts, but he contends he has shown cause for
procedural default under Martinez. For the same reasons stated above in addressing
Claim Two, I will dismiss Claim Three.
Finally, Respondents assert that in Claim Four Applicant is claiming the state
failed to provide him with an interpreter familiar with Applicant’s particular dialect of
Spanish. Respondents contend that even though Applicant failed to present this claim
in either Dominguez 1 and in Dominguez II, in Dominguez 11, the CCA perceived and
addressed a claim that counsel provided ineffective assistance in allowing Applicant to
sign a plea agreement even though his interpreter did an inadequate job. Respondents
conclude, however, that an ineffective assistance of counsel claim challenging a
counsel’s failure to correct a particular defect does not fairly present that defect as an
independent ground for relief.
In his Reply, Applicant asserts that he clearly raised Claim Four in state court as
a due process claim and as a Sixth Amendment claim. In support of his argument,
Applicant contends that if he is denied effective assistance of counsel, then ipso facto
he is also denied due process.
Although I do not agree with Applicant’s rationale for finding that both his due
process and Sixth Amendment claims were raised in state court, a review of the trial
court’s order denying both of Applicant’s Crim. P. 35(c) motions and the CCA’s opinion

14

denying Applicant’s Crim. P. 35(c) appeal supports a finding that Applicant exhausted
these claims for other reasons.
I have reviewed the opening brief in Dominguez I and find no reference to the
adequacy of Applicant’s interpreter. In Dominguez II, however, Applicant refers to
ineffective assistance of counsel and supports this claim with his inadequate interpreter
issue. Although Applicant does not specifically state in the opening brief that trial
counsel was aware of the inadequacy of the interpreter but failed to address the
problem, Applicant relies on Brady for his alleged constitutional violation and includes
the inadequate interpreter issue. Given the CCA’s analysis of the interpreter claim, a
review of the opening brief in the Crim. P. 35(c) postconviction motion, and Johnson v.
Williams, — U.S. —, 133 S. Ct. 1088 (2013), I find Applicant’s due process and
ineffective assistance of claim, with respect to the interpreter claim, are exhausted for
the following reasons.
In his opening brief, Applicant relied on Brady v. United States, 397 U.S. 742
(1970), and People v. White, 182 Colo. 417, 423 (1973), for his challenge to the
constitutionality of his plea. The claims at issue in White were whether there was a
denial of effective assistance of counsel and whether the providency hearing measured
up to constitutional standards. White, 182 Colo. at 419. Specifically, the White court
found that counsel’s derelictions were sufficient to prevent the defendant’s from entering
a knowing and intelligent plea and thus the ineffectiveness of counsel prevented the
court from discharging its proper function. Id. at 425. Furthermore, in Brady, at issue,
in part, was the courts’ responsibility to “satisfy themselves that pleas of guilty are

15

voluntarily and intelligently made.” Brady, 397 U.S. at 758. Although the CCA did not
specifically address the constitutionality of the providency hearing, or in other words that
Applicant was denied due process at his providency hearing, when a state court rules
against a defendant in an opinion that denies some of the defendant’s claims, but does
not expressly address a certain federal claim, the presumption is that the federal claim
was adjudicated on the merits. Johnson,133 S. Ct. at 1094-98. The presumption is
subject to rebuttal if it appears that the federal claim was inadvertently overlooked. Id.
at 1094-96. Nothing in the CCA’s opinion indicates that it inadvertently overlooked
Applicant’s due process or ineffective assistance of counsel claims. The substance of
Claim Four was fairly presented to the CCA, see Picard, 404 U.S. at 278; see also
Nichols, 867 F.2d at 1252, and Claim Four is exhausted.
Accordingly, it is
ORDERED that Claims Two and Three are dismissed as procedurally barred
from federal habeas review. It is
FURTHER ORDERED that the Motion for Sanctions, ECF No. 13, is denied as
meritless. It is
FURTHER ORDERED that within thirty days Respondents are directed to file an
answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases that fully
addresses the merits of Claims One and Four. It is
FURTHER ORDERED that within thirty days of the filing of an answer, Applicant
may file a reply if he desires. It is
FURTHER ORDERED that within thirty days from the date of this Order, the

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Respondents shall file with the clerk of the court, in electronic format if available, a copy
of the complete record of Applicant’s state court proceedings in Case No. 1997CR29, in
the District Court of Rio Blanco County, Colorado, including all documents in the state
court file and transcripts of all proceedings conducted in the state court, but excluding
any physical evidence (as opposed to documentary evidence) not relevant to the
asserted claims. It is
FURTHER ORDERED that the clerk of the court is directed to send copies of this
Order to the following:
(1)

Clerk of the Court
Rio Blanco District Court
P.O. Box 1150
555Main Street
Meeker, Colorado 81641; and

(2)

Court Services Manager
State Court Administrator’s Office
1300 Broadway
Denver, Colorado 80203.

DATED October 9, 2013, at Denver, Colorado.
BY THE COURT:

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