Matthews v. Bonner et al

Filing 25

ORDER re: 14 Amended Application for Writ of Habeas Corpus filed by Donovan Craig Matthews, by Judge R. Brooke Jackson on 5/5/2014. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable R. Brooke Jackson

Civil Action No. 13-cv-01876-RBJ-KLM
DONOVAN CRAIG MATTHEWS,
Applicant,
v.
BOBBY BONNER, Warden, and
JOHN SUTHERS, the Attorney General of the State of Colorado,
Respondents.

ORDER TO DISMISS IN PART AND FOR ANSWER

Applicant, Donovan Craig Matthews, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the Kit Carson
Correctional Center in Burlington, Colorado. Mr. Matthews, acting pro se, filed a second
amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2254 (ECF No.
14) challenging the validity of his conviction in Adams County, Colorado, district court
Case No. 07CR1097. He has been granted leave to proceed in forma pauperis pursuant
to 28 U.S.C. ' 1915.
In an order entered on December 4, 2013, Magistrate Judge Boyd N. Boland
directed Respondents to file a pre-answer response limited to 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) if Respondents intended to raise either or both of those
affirmative defenses in this action. On January 21, 2014, after being granted an
extension of time, Respondents filed their pre-answer response (ECF No. 22). Mr.
Matthews did not file a reply to the pre-answer response, although he was provided with

the opportunity to do so.
The Court must construe Mr. Matthews= filings 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 act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
I. Background and State Court Proceedings
Mr. Matthews was convicted by a jury in Arapahoe County District Court Case No.
07CR1097 of first-degree assault (causing serious bodily injury with a deadly weapon),
two counts of second-degree assault (causing bodily injury with a deadly weapon),
third-degree assault, and illegal possession of a weapon by a prior offender. ECF No.
22, ex. D (People v. Matthews, No. 08CA0904 (Colo. Ct. App. Sept. 16, 2010)
(unpublished)) at 3. The trial court merged the second- and third-degree assault
convictions into the first-degree assault conviction, and imposed concurrent prison
sentences of twenty-six years for the assault conviction and one year for the illegal
weapon conviction. ECF No. 22, ex. D at 3-4.
Applicant appealed directly to the Colorado Court of Appeals, which on September
16, 2010, affirmed his convictions. ECF No. 22, ex. D. On January 18, 2011, the
Colorado Supreme Court denied certiorari review. ECF No. 22, ex. F. On June 2,
2011, Mr. Matthews filed a motion for sentence reconsideration, which the trial court
denied the same day. ECF No. 22, ex. A (state court register of actions) at 8. Applicant
did not appeal.
On June 17, 2011, Mr. Matthews filed a motion for postconviction relief. ECF No.
22, ex. A at 8. On September 22, 2011, the trial court denied the motion. ECF No. 22,
ex. A at 8. On August 23, 2012, the Colorado Court of Appeals affirmed. ECF No. 22,
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ex. H (People v. Matthews, No. 11CA2269 (Colo. Ct. App. Aug. 23, 2012) (unpublished)).
On June 24, 2013, the Colorado Supreme Court denied certiorari review. ECF No. 22,
ex. J.
On August 8, 2013, Mr. Matthews filed his original habeas corpus application (ECF
No. 4) with the Court. Respondents concede the instant action is filed within the
one-year limitation period in 28 U.S.C. ' 2244(d). Therefore, the Court need not address
further the one-year limitation period. Mr. Matthews asserts the following six claims:
(1)
The admission of other-acts evidence violated
Applicant=s right to a fair trial. ECF No. 14 at 12.
(2)
The admission of photographs of his prior acts
violated his right to a fair trial. Id.
(3)
The admission of the photographs without a
proper foundation violated his right to a fair trial. Id. at 13.
(4)
The admission of his involuntary statements
violated his right to a fair trial. Id.
(5)
The admission of testimony not based on
personal knowledge violated his right to a fair trial. Id. at 14.
(6)
The trial court=s denial of his motion to dismiss
the public defender violated his right to the effective
assistance of counsel. Id.
II. Exhaustion and Procedural Default
A. Exhaustion
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

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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 Ato the highest state court, either by direct review of the conviction or in a
postconviction attack.@ Dever, 36 F.3d at 1534.
Furthermore, the Asubstance 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 Abook and verse on the federal constitution,@ Picard, 404 U.S. at 278 (internal
quotation marks omitted), A[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, 365-66
(1995) (per curiam). The requirement of exhaustion of state remedies in federal habeas
cases dictates that a state prisoner must Agive the state courts a full opportunity to resolve
any constitutional issues by invoking one complete round of the State's established
appellate review process.@ O'Sullivan, 526 U.S. at 845.
AThe 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). Even if
state remedies properly have been exhausted as to one or more of the claims presented,
a habeas corpus application is subject to dismissal as a mixed petition unless state court
remedies have been exhausted for all of the claims raised. See Rose v. Lundy, 455 U.S.
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509, 522 (1982); Harris v. Champion, 48 F.3d 1127, 1133 (10th Cir. 1995).
Respondents contend claim 4 is exhausted and claim 6 is not. For the reasons
stated below, the Court agrees claim 4 is exhausted, but disagrees that claim 6 is.
Claim 4
Respondents concede that claim 4 is exhausted because Applicant presented the
claim as a question of federal constitutional law on direct appeal both in the Colorado
Court of Appeals, ECF No. 22, ex. B (appellant=s opening brief) at 26, and in the Colorado
Supreme Court, ECF No. 22, ex. E (petition for writ of certiorari) at 17. The Court need
not further address claim 4 at this time.
Claim 6
Respondents argue claim 6 is not exhausted because Mr. Matthews failed to
present the claim to the Colorado Supreme Court. For the reasons stated below, the
Court finds that claim 6 is exhausted.
Respondents are correct that, in order to exhaust state court 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, Athere 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.
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
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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. Pursuant to Colo. App. R. 51.1, 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. See,
e.g., Valenzuela v. Medina, No. 10-cv-02681-BNB, 2011 WL 805787, at *4 (D. Colo. Feb.
28, 2011).
Respondents concede Mr. Matthews fairly presented claim 6 as a question of
federal constitutional law in the Colorado Court of Appeals. ECF No. 22, ex. B at 36-38.
Therefore, the Court finds that claim 6 is exhausted, and the Court is not persuaded by
Respondents= arguments that a petition for writ of certiorari still is necessary to exhaust
state remedies in Colorado. 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); and Swoopes v. Sublett, 196 F.3d 1008, 1009-10 (9th Cir. 1999).
Although the United States Court of Appeals for the Tenth Circuit (Tenth Circuit)
has not addressed the specific issue, Respondents argue that in Prendergast v.
Clements, 699 F.3d 1182 (10th Cir. 2012), the Tenth Circuit Asuggested@ that
presentation before the state=s highest court is necessary to satisfy the exhaustion

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requirement. In Prendergast, the Tenth Circuit noted that Boerckel requires a state
habeas corpus applicant to present his claim to the state=s highest court to satisfy the
exhaustion requirement. Prendergast, 699 F.3d at 1184 n.2. However, absent a
definitive holding by the Tenth Circuit on the effect of Colo. App. R. 51.1, this Court holds
that Mr. Matthews= failure to raise claim 6 in a petition for certiorari review to the Colorado
Supreme Court does not demonstrate that the claim is unexhausted. See Hoeck v.
Timme, No. 13-cv-02575-WJM, 2014 WL 376398, at *6 (D. Colo. Feb. 03, 2014)
(unpublished). The Court finds that claim 6 is exhausted.
B. Procedural Default
If a habeas applicant Afailed 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) (A>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
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comity and federalism concerns. See Coleman, 501 U.S. at 730. Mr. Matthews= 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. Matthews 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). AObjective 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. Matthews can demonstrate cause, he also must show
Aactual prejudice as a result of the alleged violation of federal law.@ Coleman, 501 U.S.
at 750.
A fundamental miscarriage of justice occurs when Aa 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
Asubstantial 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. Matthews first must Asupport his allegations of
constitutional error with new reliable evidence B whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence B that was not
presented at trial.@ Id. He then must demonstrate Athat it is more likely than not that no
reasonable juror would have convicted him in light of the new evidence.@ Id. at 327.
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Respondents contend claims 1, 2, 3, and 5 are procedurally defaulted. For the
reasons stated below, the Court agrees that claim 3 is procedurally defaulted, but
disagrees that claims 1, 2, and 5 are.
Claim 1
In claim 1 Mr. Matthews contends the admission of evidence of his prior
incarceration and prior incidents of domestic violence violated his right to a fair trial. ECF
No. 14 at 12. Respondents argue Mr. Matthews procedurally defaulted claim 1 because
he did not raise the claim as a federal constitutional claim in the Colorado Court of
Appeals. They maintain he only made brief mention of the federal due process clause
entitling him to a fair trial, but primarily argued the admission of such evidence violated
Rule 404(b) of the Colorado Rules of Evidence. ECF No. 24, ex. B at 14-20. The Court
disagrees.
The admission of evidence violates due process only when it denies a defendant
fundamental fairness. Payne v. Tennessee, 501 U.S. 808, 825 (1991) (evidence
violates due process only when it is so unduly prejudicial that it renders a trial
fundamentally unfair). The Supreme Court has Adefined the category of infractions that
violate >fundamental fairness= very narrowly.@ Dowling v. United States, 493 U.S. 342,
352 (1990). Judges are to determine only whether the action complained of violates
those Afundamental conceptions of justice@ which define the sense of Afair play and
decency.@ Id. at 353 (citations and internal quotation marks omitted).
In his opening brief on direct appeal, Mr. Matthews argues he is entitled to receive
a fair trial under the Fourteenth Amendment to the United States Constitution, and that
evidence of his prior incarceration and prior incidents of domestic violence rose to the
level of a due process violation. ECF No. 22, ex. B at 12-14. For purposes of the
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requirement that state court remedies be exhausted before federal habeas review, the
crucial inquiry is whether the substance of the applicant=s claim has been presented to the
state courts in a manner sufficient to put those courts on notice of the federal
constitutional claim. See Picard, 404 U.S. at 278; Nichols, 867 F.2d at 1252. The Court
finds that Mr. Matthews sufficiently alerted the state court of his federal constitutional
claim. Therefore, the Court finds that claim 1 is exhausted.
Claim 2
As his second claim, Mr. Matthews argues that the admission of photographs of
the victim from prior incidents violated his right to a fair trial. Respondents argue Mr.
Matthews procedurally defaulted claim 2 because he did not raise the claim as a federal
constitutional claim in the Colorado Court of Appeals. Again, the Court disagrees.
In his opening brief on direct appeal, Mr. Matthews argues he has a Fourteenth
Amendment right to a fair trial, and that allowing pictures of the victim from prior incidents
violated that right. ECF No. 22, ex. B at 20, 22. The Court finds that Mr. Matthews
presented the substance of his claim to the state courts in a manner sufficient to put those
courts on notice of the federal constitutional due process claim. See Picard, 404 U.S. at
278; Nichols, 867 F.2d at 1252. Therefore, the Court finds that claim 2 is exhausted.
Claim 3
As claim 3, Mr. Matthews alleges that the admission of the photographs of the
victim without a proper foundation violated his right to a fair trial. Respondents argue Mr.
Matthews procedurally defaulted claim 3 because he did not raise the claim as a federal
constitutional claim in the Colorado Court of Appeals. The Court agrees.
In his opening brief on direct appeal, Mr. Matthews did not argue that the lack of a
proper foundation rose to the level of a due process violation. Unlike claims 1 and 2, Mr.
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Matthews does not even cite to the federal constitutional. Citing to state case law and
evidentiary rules only, he makes the conclusory allegation that he was denied Aa fair trial.@
ECF No. 22, ex. B at 25. This brief, conclusory reference to a fair trial fails to present the
substance of his claim to the state courts in a manner sufficient to put those courts on
notice of the federal constitutional due process claim. See Picard, 404 U.S. at 278;
Nichols, 867 F.2d at 1252. The Court finds that claim 3 is not exhausted.
Any attempt to present the claim at this time in a state postconviction proceeding
would be rejected as successive. Rule 35(c)(3)(VI) and (VII) bar Mr. Matthews from
raising in a postconviction motion a claim that already was raised and resolved in a prior
appeal or could have been presented in a previous postconviction proceeding; 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). As such, the claim is procedurally defaulted. See Coleman, 501
U.S. at 735 n.1; Anderson, 476 F.3d at 1139 n.7. Applicant has not made the necessary
showing of cause and prejudice or actual innocence to excuse his procedural default.
Claim 5
As claim 5, Mr. Matthews alleges the admission of testimony not based on
personal knowledge violated his right to a fair trial. Respondents argue Mr. Matthews
procedurally defaulted claim 5 because he did not raise the claim as a federal
constitutional claim in the Colorado Court of Appeals. The Court again disagrees.
In his opening brief on direct appeal, Mr. Matthews argues he has a Fourteenth
Amendment right to a fair trial, and that the admission of testimony without personal
knowledge violated that right. ECF No. 22, ex. B at 31-32. The Court finds that Mr.
Matthews presented the substance of his claim to the state courts in a manner sufficient
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to put those courts on notice of the federal constitutional due process claim. See Picard,
404 U.S. at 278; Nichols, 867 F.2d at 1252. Therefore, the Court finds that claim 5 is
exhausted.
III. Conclusion
For the reasons stated above, the second amended application (ECF No. 14) will
be denied in part.
Accordingly, it is
ORDERED that claim 3 is dismissed as procedurally defaulted. It is
FURTHER ORDERED that within thirty days of the filing of the state court
record 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 the following exhausted
claims: claims 1, 2, 4, 5, and 6. It is
FURTHER ORDERED that a traverse, if any, may be filed within thirty days of
the filing of the answer.
DATED May 5, 2014, at Denver, Colorado.
BY THE COURT:

R. BROOKE JACKSON
United States District Judge

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