Bryant v. Bonner et al

Filing 12

ORDER Drawing Case by Judge Lewis T. Babcock on 12/4/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02212-BNB

JAMES BRYANT,
Applicant,
v.
BOBBY BONNER, Warden, Kit Carson Corr. Center, and
JOHN SUTHERS, Attorney General for the State of Colorado,
Respondents.

ORDER DRAWING CASE

Applicant, James Bryant, is in the custody of the Colorado Department of
Corrections at the Kit Carson Correctional Center in Burlington, Colorado. Mr. Bryant
has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
challenging the validity of his criminal conviction in the District Court of El Paso County,
Colorado. He has paid the $5.00 filing fee.
In an October 15, 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). Respondents submitted a pre-answer response on October 22,
2013. Applicant was given an opportunity to file a reply.
The Court must construe liberally the Application filed by Mr. Bryant 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 drawn to a district judge and to a magistrate judge.
I. Background and State Court Proceedings
On August 25, 2005, Mr. Bryant was convicted by a jury of assault on a peace
officer and distribution of a schedule II controlled substance in El Paso County District
Court Case No. 03CR1282. [Doc. # 1, at 1-2]. After adjudication as a habitual criminal,
Mr. Bryant was sentenced to an aggregate prison term of 48 years. [Id. at 2; Doc. # 9-1,
at 6].
The Colorado Court of Appeals affirmed Mr. Bryant’s convictions on direct appeal
in People v. Bryant (Bryant I), No. 05CA2084 (Colo. App. March 5, 2009) (unpublished
decision). [Doc. # 9-10]. Applicant’s request for certiorari review was denied by the
Colorado Supreme Court on November 9, 2009, [Doc. # 9-8], and by the United States
Supreme Court on March 22, 2010. [Doc. # 9-6].
On April 10, 2010, Mr. Bryant filed pro se a motion for post-conviction relief
pursuant to Colo. R. Crim. P. 35(c), which was denied summarily by the state district
court on April 29, 2010. [Doc. # 9-5]. The Colorado Court of Appeals affirmed in People
v. Bryant (Bryant II), No. 10-CA1107 (Colo. App. June 21, 2012) (unpublished). [Doc.
# 9-3]. Applicant filed a petition for rehearing, which was denied on November 1, 2012.
[Doc. # 9-2]. He did not file a petition for certiorari review with the Colorado Supreme
Court.
Mr. Bryant initiated this action on August 16, 2013. He asserts two claims in the
Application:
(1) that he received ineffective assistance of counsel, in violation of the
Sixth Amendment, when trial counsel failed to conduct reasonable
investigations to discover exculpatory evidence and testimony. [Doc. # 1,
at 12].
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(2) that his appellate counsel was ineffective in failing to raise issues on
appeal concerning Applicant’s habitual criminal adjudication. [Id. at 14].
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). [Doc. # 9, at 4-7].
III. Exhaustion of State Remedies and Procedural Default
A. Standard of Review
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
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
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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).
B. Analysis
Respondents argue at the outset that Applicant’s claims are pleaded
insufficiently, in derogation of Rule 2(c) of the Rules Governing Section 2254 Cases,
which requires that the petition state the facts supporting each ground for relief. As
such, Respondents contend that “the only way to address exhaustion is to assume that
the instant application intends to raise the same [claims] as were raised in applicant’s
state postconviction proceeding.” [Doc. # 9, at 13].
Mindful that pro se pleadings are afforded a liberal construction, the Court
has reviewed Mr. Bryant’s opening brief in the state post conviction proceeding and
finds that he is raising the same claims in his federal habeas application. Accordingly,
the Court will address whether Applicant has exhausted the following claims.
Claim One: Trial counsel was ineffective in failing to:
a) conduct a sufficient investigation to discover that the officer who first
spotted what looked like a drug transaction reported the wrong license tag
number to dispatch, lied about his commendations, and lied about the
injury resulting from applicant’s assault, all of which would “most likely”
have resulted in suppression of all evidence against him [Doc. # 9-4, at
12-13];
b) impeach the officer with inconsistent preliminary hearing testimony [id.
at 13-14];
c) challenge a juror for cause, and failed to use a peremptory strike
against the juror [id. at 14-15];
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d) require Applicant’s presence during a discussion whether to replace a
juror with an alternate [id. at 15-17];
e) renew the motion to suppress during trial, based on trial evidence that
purportedly supported suppression evidence [id. at 17-18].
f) move to suppress and object to evidence that officers answered calls to
applicant’s cell phone and spoke with people who were seeking to buy
drugs [id. at 18-21];
g) seek a jury trial on the habitual criminal counts [id. at 21-22];
h) move for a proportionality review [id. at 22-24];
i) ensure a proper trial court advisement on the rights to testify or not
testify (a requirement set out in People v. Curtis, 681 P.2d 504 (Colo.
1984)) [id. at 24-26]; and,
j) the cumulative effect of counsel’s mistakes caused prejudice sufficient to
warrant a new trial [id. at 26].
Claim two: Appellate counsel was constitutionally ineffective in failing to:
a) challenge the absence of a jury determination of the habitual criminal
counts; and
b) appeal on the ground that one of the prior convictions used to enhance
his sentence in this case was misnamed in the original information (it was
amended prior to the habitual hearing).
[Doc. # 9-4, at 27-28].
Respondents concede that Mr. Bryant presented his claims to the Colorado
Court of Appeals in the state post-conviction review proceeding. Respondents argue,
however, that Applicant has not exhausted his available state remedies because he did
not seek certiorari review in the Colorado Supreme Court.
Relevant here is Colorado Appellate Rule 51.1, which provides:
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
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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, 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 (D. Colo. Feb. 28, 2011); Garrett v. Werholtz,
13-cv-01379-MSK (D. Colo. Sept. 18, 2013) (unpublished) (same). Although the Circuit
Court of Appeals for the Tenth Circuit has not addressed the issue, Valenzuela’s
interpretation of the state procedural rule is bolstered by four circuit court decisions
holding 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).
Respondents maintain that the Tenth Circuit’s decisions in Prendergast v.
Clements, 699 F.3d 1182 (10th Cir. 2012) and Vreeland v. Davis, No. 13-1170, 2013
WL 5289963 (10th Cir. Sept. 20, 2013), suggest that presentation of a Colorado state
prisoner’s claims to the Colorado Supreme Court is necessary to satisfy the statutory
exhaustion requirement. [See Doc. # 9, at 15-16]. In Prendergast, the Tenth Circuit
noted that the State of Colorado failed to argue that the exhaustion defense applied
where the applicant failed to seek certiorari review of his adverse resentencing in the

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Colorado Supreme Court. See 699 F.3d at 1184 n.2. The Circuit Court further noted
that it could have raised the exhaustion defense sua sponte, but proceeded to decide
the case on other grounds. Id. In Vreeland, the Tenth Circuit held in a unpublished
decision that the applicant had failed to exhaust state court remedies where he was
petitioning the Colorado Supreme Court for certiorari review at the time his federal
application was filed. See 2013 WL 5289963, at **2-3. However, neither case holds
that a Colorado state prisoner fails to satisfy the exhaustion requirement for a § 2254
application where the prisoner does not seek certiorari review of his claims by the
Colorado Supreme Court before filing a federal application. Until this Court receives a
more explicit directive from the Tenth Circuit, it continues to find the holdings of other
circuit courts of appeal persuasive.
The record establishes that Mr. Bryant presented his federal constitutional claims
to the Colorado Court of Appeals and the claims were decided against Applicant on the
merits in Bryant II. Therefore, the Court rejects Respondent’s affirmative defense that
Applicant failed to exhaust state remedies before he filed his § 2254 application.
Accordingly, it is
ORDERED that this case shall be drawn to a district judge and to a magistrate
judge. See D.C.COLO.LCivR 8.2D.
DATED at Denver, Colorado, this

4th

day of

December

, 2013.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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