Robledo v. USA
ORDER of Dismissal by Judge Lewis T. Babcock on 2/19/2014. (evana, )
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, filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 4) (the “Application”). Mr. RobledoValdez 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” exclude 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). On December 23, 2013, the Court entered an Order of Dismissal (ECF No.
15). On January 7, 2014, Mr. Robledo filed a Petition for Rehearing (ECF No. 19)
requesting an opportunity to file a late response to the Pre-Answer Response because
he had not received a copy of the Pre-Answer Response. Mr. Robledo also included in
the Petition for Rehearing various arguments addressing the Court’s reasoning in the
Order of Dismissal. On January 10, 2014, the Court entered an Order Reinstating
Action (ECF No. 20) because it was not clear whether Mr. Robledo had received a copy
of the Pre-Answer Response. Also on January 10, 2014, Magistrate Judge Boland
entered a Minute Order (ECF No. 21) directing Respondents to serve a copy of the PreAnswer Response on Mr. Robledo at his current address and directing Mr. Robledo to
file a reply to the Pre-Answer Response within twenty-one days from the date of
service. Respondents then filed a Certificate of Re-Service of Pre-Answer Response
(ECF No. 22) that indicates a copy of the Pre-Answer Response was mailed to Mr.
Robledo at the Denver County Jail that same day. On January 27, 2014, while he still
was confined at the Denver County Jail, Mr. Robledo filed a Notice of Change of
Address (ECF No. 23) dated January 20, 2014, stating that his parole was revoked
following a hearing on January 17, 2014, and that he would be moved to the Denver
Reception and Diagnostic Center on or about January 24, 2014. Other than the
arguments Mr. Robledo-Valdez included within his Petition for Rehearing, he has not
filed a reply to the Pre-Answer Response.
The Court must construe the Application and other papers filed by Mr. RobledoValdez 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 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 procedurally barred.
The Colorado Court of Appeals summarized the plea agreement and the state
court proceedings relevant to the convictions 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 a prior 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 the prior 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 his original prison
sentences. As noted above, he currently is incarcerated as a result of a parole
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
due process claim Mr. Robledo-Valdez asserts is either unexhausted or procedurally
barred. The Court will dismiss the due process claim as 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 fairly presented his due process claim to the Colorado appellate
courts 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) and (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. Mr. Robledo-Valdez argues that the third Rule 35(c) motion
was not successive because he did not know about the sentence computation error at
the time he filed the first Rule 35(c) motion, and the October 2011 Motion to Set Hearing
was misconstrued as a second Rule 35(c) motion because it merely requested a
hearing and was not a substantive Rule 35(c) motion. However, the Colorado Court of
Appeals concluded that Mr. Robledo-Valdez “did not properly raise newly discovered
evidence” in the third Rule 35(c) motion and the trial court “did not err in denying the
motion because it was successive.” (ECF No. 13-5 at 5.) As a result, Mr. RobledoValdez did not fairly present his invalid guilty plea claim to the state courts, and the
invalid guilty plea claim is unexhausted.
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, it is clear that 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) and (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. In particular, he fails to identify the
existence of any external factor that prevented him from complying with the relevant
procedural rules. Mr. Robledo-Valdez does contend that he was not aware of the
sentence computation error that underlies his due process claim until July 2011 and he
did not know he could appeal from the trial court’s order denying the Motion to Set
Hearing that was construed as a second Rule 35(c) motion. However, his lack of
knowledge that he could appeal is not sufficient to demonstrate cause for his procedural
default. See Rodriguez v. Maynard, 948 F.2d 684, 688 (10th Cir. 1991) (finding “lack of
awareness and training on legal issues” insufficient to demonstrate cause to overcome
Mr. Robledo-Valdez also fails to demonstrate or argue that a failure to consider
his unexhausted due process claim will result in a fundamental miscarriage of justice.
His argument that he spent an extra year in prison is not sufficient to demonstrate the
existence of a fundamental miscarriage of justice because he fails to offer new evidence
that demonstrates he is actually innocent of the crime to which he agreed to plead
guilty. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (stating that a credible claim of
actual innocence requires a petitioner “to 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”).
Therefore, 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
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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