Robledo v. USA
ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/23/13. No certificate of appealability will issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02558-BNB
UNITED STATES OF AMERICA,
J. DAVIS, and
SUTHERS, Attorney General of the State of Colorado,
ORDER OF DISMISSAL
Applicant, Craig Robledo-Valdez, has filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 4) (the “Application”). Mr.
Robledo-Valdez is challenging the validity of his convictions in Park County District
Court case numbers 08CR19 and 08CR21. Although Mr. Robledo-Valdez lists the
United States of America as a Respondent in the caption of the Application, the United
States is not a proper Respondent and has not been ordered to file a response in this
action. All references to “Respondents” in this order do not include the United States.
On October 21, 2013, Magistrate Judge Boyd N. Boland ordered 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 pursuant to 28
U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses in
this action. On October 30, 2013, Respondents filed their Pre-Answer Response (ECF
No. 13). Mr. Robledo-Valdez has not filed a reply to the Pre-Answer Response despite
being given an opportunity to do so.
The Court must construe the Application liberally because Mr. Robledo-Valdez 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
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the Court will dismiss the action because the claims in the Application are
The Colorado Court of Appeals summarized the plea agreement and the state
court proceedings relevant to the conviction and sentence Mr. Robledo-Valdez is
challenging in the Application as follows:
Defendant was charged with tampering with a witness in
2008 while separate charges were pending against him in
another jurisdiction. Both cases were resolved by plea
agreements. In this case, defendant agreed that he would
serve two years in the Department of Corrections (DOC),
consecutive to his sentence from the first jurisdiction. He
filed a motion to withdraw his plea immediately thereafter,
and the motion was denied in August 2009; he did not
pursue a direct appeal.
Defendant filed a Crim. P. 35(c) motion in September 2009
alleging ineffective assistance of plea counsel and
requesting counsel. Postconviction counsel filed an
amended motion asking that (1) defendant be allowed to
withdraw his plea; (2) the prosecution be required to
reinstate an earlier offer of a different plea disposition; and
(3) the court impose a concurrent, rather than consecutive,
sentence. This motion was denied following a hearing in
April 2010, and defendant did not appeal the order denying
In October 2011, defendant filed a pleading entitled “Motion
to Set Hearing.” This motion alleged that new evidence
called into question the validity of his plea agreement, and
asked the court to conduct a hearing on this allegation. In a
November 2011 order, the trial court summarily denied the
motion, concluding that it was a variation of previous
motions. Defendant filed a letter asking the court to
reconsider this order because the Motion to Set Hearing
raised a new issue. The trial court did not rule on the
request in defendant’s letter and defendant did not appeal
In April 2012, defendant filed a third Crim. P. 35(c) motion
that again alleged that there was newly discovered evidence
that undercut the validity of his guilty plea in this case. The
trial court denied this motion, concluding that it was
successive to defendant’s first Crim. P. 35(c) motion.
People v. Robledo, No. 12CA1348, slip op. at 1-2 (Colo. App. Oct. 3, 2013)
(unpublished) (ECF No. 13-5 at 2-3). The Colorado Court of Appeals affirmed the trial
court’s order denying the third Rule 35(c) motion as successive. See id.
Mr. Robledo-Valdez initiated the instant action on September 18, 2013, and the
Application was filed on October 17, 2013. He asserts three claims in the Application,
each of which presents the same argument that his guilty plea was not entered
knowingly and voluntarily because his decision to accept a consecutive sentence was
premised on a factual error by the Department of Corrections in calculating his
mandatory release date for his existing sentence. According to Mr. Robledo-Valdez, he
would have completed both prison sentences no later than August 2012 if he had been
advised accurately regarding his mandatory release date for his existing sentence. The
Court construes the Application liberally as raising a constitutional due process claim.
Mr. Robledo-Valdez alleges in the Application that he has completed the original prison
sentence and now is incarcerated as a result of a parole violation.
Respondents argue that the Application is barred by the one-year limitation
period in 28 U.S.C. § 2244(d) and that the Application should be denied because the
claims Mr. Robledo-Valdez asserts either are unexhausted or procedurally barred. The
Court will dismiss the due process claim as unexhausted and procedurally barred.
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. Kan. 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.
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).
Finally, “[t]he 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 he has exhausted all
available state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
According to the opinion of the Colorado Court of Appeals quoted above, Mr.
Robledo-Valdez did not file a direct appeal, but he did file three postconviction Rule
35(c) motions in which he challenged the validity of his guilty plea in his Park County
cases. (See ECF No. 13-5 at 2-3.) Each of the Rule 35(c) motions was denied by the
trial court, but Mr. Robledo-Valdez only appealed from the denial of the third Rule 35(c)
motion. (See id.) Thus, the only state court proceedings in which Mr. Robledo-Valdez
arguably could have exhausted state remedies are the proceedings relevant to the third
Rule 35(c) motion filed in April 2012. As noted above, Mr. Robledo-Valdez raised an
invalid guilty plea claim in the third Rule 35(c) motion, the trial court denied the third
Rule 35(c) motion as successive to the first Rule 35(c) motion, and the trial court’s order
was affirmed on appeal. (See id.)
The determination by the Colorado courts that the third Rule 35(c) motion was
successive was premised on Rules 35(c)(3)(VI) & (VII) of the Colorado Rules of
Criminal Procedure, which provide that state courts in Colorado must deny any claim
raised in a postconviction motion that actually was raised in a prior appeal or
postconviction proceeding or that could have been raised in a prior appeal or
postconviction proceeding. Because the third Rule 35(c) motion was successive, Mr.
Robledo-Valdez did not fairly present his invalid guilty plea claim to the state courts in
those proceedings and the invalid guilty plea claim is unexhausted. The possibility that
Mr. Robledo-Valdez may have raised the same invalid guilty plea claim in his first Rule
35(c) motion does not demonstrate the claim was fairly presented to the state’s highest
court because he did not appeal from the trial court’s order denying the first Rule 35(c)
Although Mr. Robledo-Valdez failed to exhaust state remedies for his due
process claim, the Court may not dismiss the due process claim for failure to exhaust
state remedies if Mr. Robledo-Valdez no longer has an adequate and effective state
remedy available to him. See Castille, 489 U.S. at 351. It is clear that Mr. RobledoValdez no longer has an adequate and effective state remedy available to him and that
the unexhausted due process claim is procedurally defaulted because the same state
procedural rules that prevented Mr. Robledo-Valdez from challenging the validity of his
guilty plea in the third Rule 35(c) motion prevent him from raising the claim in yet
another Rule 35(c) motion. As a result, Mr. Robledo-Valdez may not return to state
court to pursue his unexhausted due process claim.
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). “A
state procedural ground is independent if it relies on state law, rather than federal law,
as the basis for the decision.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). A
state procedural ground is adequate if it is “applied evenhandedly in the vast majority of
Application of this procedural default rule in the habeas corpus context is based
on comity and federalism concerns. See Coleman v. Thompson, 501 U.S. 722, 730
(1991). Mr. Robledo-Valdez’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).
The Court finds that Rules 35(c)(3)(VI) & (VII) of the Colorado Rules of Criminal
Procedure are independent because they rely on state rather than federal law. The
Court also finds that these procedural rules are adequate because they are applied
evenhandedly by Colorado courts. See, e.g., People v. Vondra, 240 P.3d 493, 494
(Colo. App. 2010) (applying Crim P. Rules 35(c)(3)(VI) & (VII) to reject claims actually
raised in prior postconviction motion or that could have been raised in a prior
postconviction motion). In addition, Mr. Robledo-Valdez presents no argument that
these rules are not independent and adequate. Therefore, the due process claim Mr.
Robledo-Valdez asserts in the Application is procedurally defaulted and cannot be
considered unless he demonstrates either cause and prejudice or a fundamental
miscarriage of justice.
To demonstrate cause for his procedural default, Mr. Robledo-Valdez 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). If Mr. Robledo-Valdez 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.
Mr. Robledo-Valdez raises no argument that might demonstrate good cause for
his procedural default or any resulting prejudice. He also fails to demonstrate or argue
that a failure to consider his unexhausted due process claim will result in a fundamental
miscarriage of justice. Therefore, the Court finds that the due process claim is
procedurally barred and the Application will be dismissed for that reason.
Furthermore, 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 also must pay the full $505
appellate 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. Accordingly, it is
ORDERED that the Application (ECF No. 4) is denied and the action is dismissed
because the due process claim in the Application is procedurally barred. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this 23rd day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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