Zuniga v. Falk et al

Filing 21

ORDER to dismiss in part and for answer. Claim 1 is dismissed as procedurally defaulted. 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 Rul es Governing Section 2254 Cases that fully addresses the merits of the following exhausted claims: claims 2, 3, 4, and 5. It is FURTHER ORDERED that a traverse, if any, may be filed within thirty days of the filing of the answer. by Judge William J. Martinez on 6/18/2014. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable William J. Martínez

Civil Action No. 13-cv-02247-WJM-BNB
GENERO ZUNIGA,
Applicant,
v.
JAMES FALK, Warden of Sterling Correctional Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO DISMISS IN PART AND FOR ANSWER

Applicant, Genero Zuniga, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the correctional
facility in Sterling, Colorado. Mr. Zuniga, acting pro se, filed an amended Application for
a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) challenging the
validity of his conviction in Arapahoe County, Colorado, district court Case No.
04CR1690. He has paid the $5.00 filing fee for a habeas corpus action.
In an order entered on January 9, 2014, 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 February 7, 2014, after being
granted an extension of time, Respondents filed their pre-answer response (ECF No.
13). On March 4, 2014, after being granted an extension of time, Mr. Zuniga filed a
reply (ECF No. 16) to the pre-answer response.

The Court must construe Mr. Zuniga’s 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
Following a gang-related shooting, Mr. Zuniga was convicted in Arapahoe County
District Court Case No. 04CR1690 of first-degree murder after deliberation, three counts
of attempted first-degree murder after deliberation, conspiracy to commit first-degree
murder after deliberation, and second-degree assault. ECF No. 13, ex. I (People v.
Zuniga, No. 11CA0072 (Colo. Ct. App. Oct. 4, 2012) (unpublished)) at 2. He was
sentenced to a prison term of life without the possibility of parole, plus 128 years. Id.
His convictions were affirmed on appeal. Id.; see also ECF No. 13, ex. D (People v.
Zuniga, No. 05CA1623 (Colo. Ct. App. May 13, 2010) (unpublished)).
On November 4, 2010, Mr. Zuniga filed a motion for postconviction relief
pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure claiming he was
deprived of his right to the effective assistance of trial and appellate counsel. ECF No.
13, ex. I at 2; see also ex. A (state court register) at 12. On December 1, 2010, the trial
court summarily denied the motion. ECF No. 13, ex. I at 2; see also ex. A at 12. On
October 4, 2012, the Colorado Court of Appeals affirmed. ECF No. 13, ex. I. On April
29, 2013, the Colorado Supreme Court denied certiorari review. ECF No. 13, ex. K.
On August 21, 2013, Mr. Zuniga filed his original habeas corpus application (ECF
No. 1) with the Court. Respondents concede the instant action is filed within the oneyear limitation period in 28 U.S.C. § 2244(d). Therefore, the Court need not address
further the one-year limitation period.
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In the amended application, Mr. Zuniga asserts the following five claims:
(1)
The trial court’s failure to sever Applicant’s
case from the codefendant’s violated Applicant’s right to due
process. ECF No. 6 at 5-7.
(2)
The elements instruction for complicity relieved
the prosecution of its burden of proof. Id. at 8-9.
(3)
The verdicts were not supported by sufficient
evidence. Id. at 8, 10.
(4)
Trial counsel rendered ineffective assistance
by failing to exercise a peremptory challenge. Id. at 11.
(5)
Appellate counsel rendered ineffective
assistance by failing to present issues concerning:
(a)
juror bias under Batson v. Kentucky,
476 U.S. 79 (1986), id. at 12-13;
(b)
prosecutorial misconduct during
closing argument, id. at 13;
(c)
the omission of a unanimity
instruction, id. at 13-14;
(d)
the unconstitutional use of a
sentence enhancer, id. at 14; and
(e)
the violation of Applicant’s Fourth
Amendment rights under Georgia v.
Randolph, 547 U.S. 103 (2006), id. at
15.
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

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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.
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,
365-66 (1995) (per curiam). The requirement of exhaustion of state remedies in federal
habeas cases dictates that a state prisoner must “give 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.
“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). 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
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unless state court remedies have been exhausted for all of the claims raised. See Rose
v. Lundy, 455 U.S. 509, 522 (1982); Harris v. Champion, 48 F.3d 1127, 1133 (10th Cir.
1995).
B. Procedural Default
If a habeas applicant “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); 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) (“‘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 comity and federalism concerns. See Coleman, 501 U.S. at 730. Mr. Zuniga’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).
To demonstrate cause for his procedural default, Mr. Zuniga must show that
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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). “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].” McClesky v. Zant, 499 U.S. 467, 493-94
(1991) (internal quotation marks omitted). If Mr. Zuniga can demonstrate cause, he also
must show “actual prejudice as a result of the alleged violation of federal law.”
Coleman, 501 U.S. at 750.
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; see also United States v. Cervini, 379 F.3d 987, 991-92 (10th Cir. 2004). 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). To demonstrate a
fundamental miscarriage of justice, Mr. Zuniga 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. He 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.
Respondents contend claim 1 is unexhausted and procedurally defaulted; claims
2, 3, and 5 are unexhausted because they have not been presented to the Colorado
Supreme Court; and claim 4 is exhausted. For the reasons stated below, the Court
agrees claim 1 is unexhausted and procedurally defaulted; disagrees that claims 2, 3,
and 5 are unexhausted; and agrees that claim 4 is exhausted.
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Claim 1
Respondents argue that claim 1 is unexhausted and procedurally defaulted. In
claim 1, Mr. Zuniga alleges that the trial court’s failure to sever his case from his
codefendant’s violated his right to due process.
In state court, Mr. Zuniga presented his severance claim on direct appeal as a
question of state law, citing to and applying Colo. R. Crim. P. 14. ECF No. 13, ex. B
(opening brief of defendant-appellant) at 21-26. His brief mention at the tail end of his
state law argument concerning claim 1 to “U.S. CONST. amends. V, VI, XIV” is
insufficient to put the state courts on notice that he is raising a federal constitutional
claim. See Wilder v. Cockrell, 274 F.3d 255, 260 (5th Cir. 2001) (“A fleeting reference
to the federal constitution, tacked onto the end of a lengthy, purely state-law . . .
argument, does not sufficiently alert and afford a state court the opportunity to address
an alleged violation of federal rights[]”; to hold otherwise would “eviscerate the
exhaustion requirement.”). As a result, Mr. Zuniga fails to provide legal theory
explaining how the state court decision violated his due process rights. See, e.g.,
Harless, 459 U.S. at 6-8 (claim on direct appeal that “failure to properly instruct a jury
violate[d] the Sixth and Fourteenth Amendments” did not fairly present due process
challenge to instruction for habeas exhaustion purposes); Picard, 404 U.S. at 276-78
(holding that habeas petitioner failed to present federal claim fairly to state court where,
despite presenting all necessary facts, petitioner failed to assert specific constitutional
argument he later tried to raise in federal court); see also Thomas v. Gibson, 218 F.3d
1213, 1221 n.6 (10th Cir. 2000) (holding that petitioner’s general state court claim was
insufficient to exhaust his later, more specific federal habeas claim).
In addition, there is no Supreme Court case applying federal constitutional
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principles to a severance claim. “The Supreme Court has not held that a state or
federal trial court’s denial of a motion to sever can, in itself, violate the Constitution.”
Grajeda v. Scribner, 541 F. App’x 776, 778 (9th Cir. Oct. 4, 2013); see also Cummings
v. Evans, 161 F.3d 610, 619 (10th Cir. 1998) (whether trial court erred in denying
severance generally is a question of state law that is not cognizable on federal habeas
appeal). The United States Court of Appeals for the Tenth Circuit (Tenth Circuit) has
found the existence of a constitutional right to severance where there is a strong
showing of prejudice caused by a joint trial. See, e.g., Cummings, 161 F.3d at 619;
United States v. Youngpeter, 986 F.2d 349, 353 (10th Cir. 1993). However, Cummings
relies on Tenth Circuit cases, not a Supreme Court case constitutionalizing the denial of
a motion to sever. Although Youngpeter cites Zafiro v. United States, 506 U.S. 534
(1993), Zafiro discusses joinder and severance in the context of Rules 8 and 14 of the
Federal Rules of Criminal Procedure. See Runningeagle v. Ryan, 686 F.3d 758, 776
(9th Cir. 2012) (“Zafiro and [United States v. Lane, 474 U.S. 438 (1986)] do not
establish a constitutional standard binding on the states and requiring severance in
cases where defendants present mutually antagonistic defenses.” (citation and internal
quotation marks omitted)).
Because Mr. Zuniga’s severance claim is a question of state law, it is not
cognizable in this habeas corpus action. See § 2254(a) (“[A] district court shall entertain
an application for a writ of habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is in custody in violation of the
Constitutional or laws or treaties of the United States.”); Estelle v. McGuire, 502 U.S.
62, 67-68 (1991) (“federal habeas corpus relief does not lie for errors of state law”).
As previously stated, Mr. Zuniga’s brief, conclusory reference to a fair trial fails to
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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 1 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. Zuniga 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; Sirmons, 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 1 will be dismissed as procedurally defaulted.
Claims 2, 3, and 5
Claim 2 asserts the elements instruction for complicity relieved the prosecution of
its burden of proof. Claim 3 alleges that the verdicts were not supported by sufficient
evidence. Claim 5 asserts that appellate counsel rendered ineffective assistance by
failing to present issues concerning: (a) juror bias under Batson v. Kentucky, 476 U.S.
79 (1986); (b) prosecutorial misconduct during closing argument; (c) the omission of a
unanimity instruction; (d) the unconstitutional use of a sentence enhancer; and (e) the
violation of Applicant’s Fourth Amendment Respondents rights under Georgia v.
Randolph, 547 U.S. 103 (2006).
Respondents argue that claims 2, 3, and 5 are not exhausted because Mr.
Zuniga failed to present these claims to the Colorado Supreme Court. For the reasons
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stated below, the Court finds that claim 2, 3, and 5 are 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, “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.
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. 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. Zuniga fairly presented claims 2, 3, and 5 as a
question of federal constitutional law in the Colorado Court of Appeals. ECF No. 13 at
14 and 18-19. Therefore, the Court finds that claims 2, 3, and 5 are exhausted, and the
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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 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
“suggested” that presentation before the state’s highest court is necessary to satisfy the
exhaustion 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. Zuniga’s failure to raise claims 2, 3, and 5 in a petition for certiorari
review to the Colorado Supreme Court does not demonstrate that the claims are
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 claims 2, 3, and 5 are
exhausted.
Claim 4
Claim 4 asserts that trial counsel rendered ineffective assistance by failing to
exercise a peremptory challenge. Mr. Zuniga present this claims as a question of
federal constitutional law in state court, both to the Colorado Court of Appeals, ECF No.
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13, ex. G (opening brief), and to the Colorado Supreme Court. ECF No. 13, ex. J
(petition for writ of certiorari) at 3-9. Therefore, claim 4 appears to be exhausted.
III. Conclusion
For the reasons stated above, the amended application (ECF No. 6) will be
denied in part.
Accordingly, it is
ORDERED that claim 1 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 2, 3, 4, and 5. It is
FURTHER ORDERED that a traverse, if any, may be filed within thirty days of
the filing of the answer.
DATED this 18th day of June, 2014.

BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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