Miner v. Falk et al

Filing 36

ORDER re: 1 Application for Writ of Habeas Corpus filed by Ira Miner. Accordingly, it is ORDERED that 1. Subclaim 2(a)(vi) is without merit and dismissed; 2. Subclaims 1(b), 1(c), 1(d), 1(e), 2(a)(iv)(1), 2(a)(iv)(2), 2(a) (iv)(3), 2(a)(v), 2 (b), 2(c)(i), 2(c)(ii)(1), the portion of subclaim 2(d)(i) alleging judicial bias stemming from the trial courts determination that Applicants waiver of his right to counsel during police interrogation was valid, subclaims 2(d)(iii), 2(d)(v), 2(e) , and 3(b) and the chain-of-custody and spousal-privilege arguments are procedurally defaulted and dismissed; and 3. Subclaims 2(a)(i), 2(a)(ii), and 2(a)(iii) are insufficiently pleaded and dismissed. It is FURTHER ORDERED that within thirty days a fter 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 remaining exhausted subclaims 1(a), 2(a)(iv)(4), 2 (c) (ii)(2), 2(c)(ii)(3), the portion of subclaim 2(d)(i) alleging Applicants waiver of his right to counsel during police interrogation was not knowing and intelligent, and subclaims 2(d)(ii), 2(d)(iv), and 3(a). It is FURTHER ORDERED that a traverse, if any, and only a traverse, may be filed within thirty days of the filing of the answer, by Judge William J. Martinez on 11/3/2014. (evana, )

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

Civil Action No. 13-cv-03102-WJM
IRA MINER,
Applicant,
v.
JAMES FALK, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DISMISSING APPLICATION IN PART AND DIRECTING ANSWER

Applicant, Ira Miner, is a prisoner in the custody of the Colorado Department of
Corrections who currently is incarcerated at the correctional facility in Sterling,
Colorado. On November 14, 2013, Mr. Miner filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challeng ing his convictions
and sentence in Jefferson County, Colorado, district court case number 06CR454.
On November 15, 2013, Magistrate Judge Boyd N. Boland entered an order
(ECF No. 3) directing 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 December 16, 2013, after
being granted an extension of time, Respondents filed their pre-answer response (ECF
No. 9).

On December 26, 2013, Mr. Miner filed both a motion (ECF No. 10) for an
extension of time to file a reply to the pre-answer response and a motion (ECF No. 11)
to amend the habeas corpus application providing the amendments he wished to make
to claims seven, eight, nine, and ten. On December 27, 2013, Magistrate Judge Boyd
N. Boland entered a minute order (ECF No. 12) granting the motion to amend the
habeas corpus application. However, Mr. Miner was informed he would not be
permitted to amend his application in a piecemeal manner. Instead, he would be
allowed thirty days in which to submit a final amended application on the proper, Courtapproved form for filing an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 that contained all the claims he wished to assert in this action. The December
27 minute order warned Mr. Miner that failure to do so within the time allowed would
result in the Court proceeding with the Application for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 (ECF No. 1) he originally filed on November 14, 2013, and the preanswer response (ECF No. 9) Respondents submitted on December 16, 2013.
Applicant was directed to obtain the Court-approved form for filing an Application
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (with the assistance of his
case manager or the facility’s legal assistant), along with the applicable instructions, at
www.cod.uscourts.gov, and to use that form in filing the final amended application. The
motion (ECF No. 10) filed on December 26, 2013, for an extension of time to file a reply
to the pre-answer response (ECF No. 9) filed on December 16, 2013, was denied
because Applicant was being given the opportunity to file a completely amended
application.

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On January 24, 2014, Mr. Miner filed an amended Application for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 13) challenging the validity of his
conviction and sentence in Jefferson County District Court case number 06CR454. On
January 27, 2014, Magistrate Judge Boland entered an order (ECF No. 14) directing
Respondents to file a second pre-answer response to the final amended application
that was 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 intended to raise either or both of those defenses in this action. On
February 10, 2014, Respondents filed their response (ECF No. 15) to the second order
for a pre-answer response, utilizing exhibits A through J submitted as part of the original
pre-answer response (ECF No. 9). On March 26, 2014, after being granted an
extension of time, Mr. Miner filed a reply (ECF No. 19). On April 16, 2014, Mr. Miner
filed an addendum (ECF No. 20) to the reply.
The Court must construe Mr. Miner’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 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 habeas corpus action in part.
I. BACKGROUND
Following a jury trial, Mr. Miner was convicted in Jefferson County District Court
case number 06CR454 of attempted first-degree murder (after deliberation) and firstdegree assault, both second-degree felonies, and robbery, a third-degree felony. ECF

3

No. 9, ex. C, attachment A (presentence report) at 14. He is serving a total sentence of
forty-eight years, two concurrent thirty-two year sentences on the attempted murder and
assault charges and a consecutive sixteen-year sentence on the robbery charge. ECF
No. 15 at 2. On April 15, 2010, the Colorado Court of Appeals affirmed his conviction
and sentence on direct appeal. ECF No. 9, ex. H (People v. Miner, No. 07CA0488
(Colo. Ct. App. Apr. 15, 2010) (unpublished) (Miner I)). On August 9, 2010, the
Colorado Supreme Court denied his petition for writ of certiorari. ECF No. 9, ex. F.
On November 12, 2010, Mr. Miner filed in the trial court a combination motion for
sentence reconsideration pursuant to Rule 35(b) of the Colorado Rules of Criminal
Procedure and reduction of mandatory sentence pursuant to Colo. Rev. Stat. § 18-1.3406(1)(a), which the trial court denied on December 7, 2010. ECF No. 9, ex. A (state
court register) at 3. Mr. Miner did not appeal.
On May 19, 2011, he filed a postconviction motion pursuant to Rule 35(c) of the
Colorado Rules of Criminal Procedure, which the trial court denied without a hearing on
June 22, 2011. ECF No. 9, ex. A at 3. On January 17, 2013, the Colorado Court of
Appeals affirmed. ECF No. 9, ex. D (People v. Miner, No. 11CA1451 (Colo. Ct. App.
Jan. 17, 2013) (unpublished) (Miner II)). On August 26, 2013, the Colorado Supreme
Court denied certiorari review. ECF No. 9, ex. B.
As previously stated, on November 14, 2013, Mr. Miner filed his original § 2254
habeas corpus application (ECF No. 1) in this Court. After Respondents filed their
initial pre-answer response (ECF No. 9), the Court allowed Applicant to submit an
amended application, which he filed on January 24, 2013 (ECF No. 13), and on
January 27, 2014, entered an order (ECF No. 14) directing Respondents to file a
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second pre-answer response. On February 10, 2014, Respondents filed their response
(ECF No. 15) to the second order for a pre-answer response. 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. Miner asserts three claims that Respondents divide into numerous subclaims
as follows:
As claim 1, Mr. Miner argues that the trial court “did not have jurisdiction” over
the case (ECF No. 13 at 5) because:
(a)
Applicant was arrested at gunpoint and “in fear of physical retribution” by
arresting officers, such that any statements he made during the arrest were
coerced (id.);
(b)
Arresting officers failed to advise him of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), prior to asking for his consent to search his home
(ECF No. 13 at 5);
(c)
The search of his home was without a warrant, and the consent of his wife
was coerced “under Color of Authority” in violation of constitutional rights and a
state statute (id.);
(d)
There was insufficient evidence that he intended to kill the victim; the
murder charge was based on the victim’s age “and other prejudicial
assumptions” (ECF No. 13 at 6); and
(e)
The victim’s identification of Applicant was “coerced” when police told her
that defendant was her attacker (id.).
As claim 2, Mr. Miner aggregates different theories and factual allegations as
follows:
(a)

Ineffective assistance of counsel because trial counsel:
(i)
Had no experience representing criminal defendants (ECF No. 13
at 7);

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(ii)
Made “no real attempt” to devote the time necessary to
communicate adequately with him (id.);
(iii)
Failed to introduce “key elements and specific facts” that would
have influenced the jury in his favor; the jury was “left ignorant” of “most of
[Applicant’s] information” (id.);
(iv)

Failed to conduct sufficient pretrial investigation to:
(1)
seek exclusion of “any mention” of the word “homicide” from
the trial (id.);
(2)
discover a videotaped confession made in the absence of
counsel (id.);
(3)
request an evaluation of the victim’s mental condition “to test
the credibility of her statements and . . . what actually happened at
the scene” (ECF No. 13 at 7-8);
(4)
confront the victim “about [the] alleged offense(s),” which
would have established the absence of an intent to kill (ECF No. 13
at 7-8 & n.1);

(v)
Requested continuances and delays, resulting in the deprivation of
his speedy trial right under 18 U.S.C. § 3161(a) (ECF No. 13 at 8); and
(vi)
Cumulative error based upon ineffective assistance of counsel,
prosecutorial misconduct, and trial court error (ECF No. 13 at 8 n.1);
(b)
Insufficient evidence that Applicant was “involved in anything more than a
simple theft[]” (ECF No. 13 at 9);
(c)

Prosecutorial misconduct:
(i)
In charging attempted first-degree murder solely for the purpose of
“aggrandizement in a simple aggravated theft case” (id.);
(ii)

In:
(1)
withholding information that juror W. had mentioned to the
prosecution, after trial, something about looking at Gray’s Anatomy
during trial (id.);
(2)
subsequently having an ex parte conversation with juror W.
(id.); and
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(3)
failing to seek a mistrial based on juror W.’s alleged
misconduct (id.);
(d)

Judicial bias, in that the trial judge:
(i)
Erroneously ruled that Applicant validly waived his Miranda rights
prior to his police interview, even though Applicant did not understand that
a lawyer would be appointed for him at state expense if he requested one,
thereby permitting introduction of Applicant’s videotaped statement made
in the absence of counsel (ECF No. 13 at 9-10);
(ii)
Questioned jurors individually, from the bench, about possible
exposure to extraneous information as a result of juror W.’s disclosure,
without permitting Applicant (or the prosecution) to examine or
cross-examine directly and confront the jurors, and instead “censored”
questions submitted by the parties (ECF No. 13 at 10-11);
(iii)
Colluded with the prosecution to overlook juror W.’s alleged
misconduct (ECF No. 13 at 9-10);
(iv)
Erroneously prohibited the parties from contacting jurors to
investigate their possible exposure to extraneous information (ECF No. 13
at 10-11); and
(v)
Failed to declare a mistrial upon learning that any juror might have
consulted extraneous information (ECF No. 13 at 11);

(e)
The jury was exposed to extraneous information, as evidenced by a
comment by juror W. in a post-trial discussion with one of the prosecutors
making reference to looking at Gray’s Anatomy (ECF No. 13 at 9).
Claim three asserts violations of the Fourth Amendment in that:
(a)
Applicant was in “physical and psychological distress” and did not consent
to the search at the time it was conducted (ECF No. 13 at 11); and
(b)
Officers obtained consent to search from Applicant’s wife by being
“deliberately deceitful” and “us[ing] pressure” on her to gain entry (id.);
Claim 3 also complains that all evidence seized during the search of his home
“was in violation of the Chain of Custody,” and that the search essentially forced his
wife to testify against him (id.).
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II. LEGAL STANDARDS
A.

Exhaustion
Pursuant to 28 U.S.C. § 2254(b)(1), an application f or 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). T he 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 satisf y 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 m ust “give the state courts a full

8

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 bring ing a federal
habeas corpus action bears the burden of showing he has exhausted all available state
remedies for each particular claim. See Miranda v. Cooper, 967 F.2d 392, 398 (10th
Cir. 1992). A blanket statement that state remedies have been exhausted does not
satisfy this burden. See Olson v. McKune, 9 F.3d 95 (10th Cir. 1993); see also Fuller v.
Baird, 306 F. App’x 430, 431 n.3 (10th Cir. 2009) (stating that a bald assertion
unsupported by court records is insufficient to demonstrate state remedies are
exhausted).
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

9

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. Miner’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. Miner 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). “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. Miner 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

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“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. Miner 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.
III. ANALYSIS
A.

Subclaim 1(a)
Mr. Miner argues in subclaim 1(a) that the trial court “did not have jurisdiction”

over his criminal case because he was arrested at gunpoint and “in fear of physical
retribution” by arresting officers, such that any statements he made during the arrest
were coerced. ECF No. 13 at 5. Respondents concede that subclaim 1(a) was
exhausted on direct appeal in Miner I, because Applicant argued that, although he
consented to a search of his home just after his arrest, such consent was involuntary,
thereby rendering the subsequent warrantless search a Fourth Amendment violation.
ECF No. 9, ex. I (appellant’s opening brief in Miner I) at 20-21, ex. G (petition for writ of
certiorari in Miner I) at 6-7.
B.

Subclaims 1(b) and 1(c)
Mr. Miner also argues that the trial court “did not have jurisdiction” over his

criminal case because 1(b) arresting officers failed to advise him of his Miranda rights
prior to asking for his consent to search his home; and 1(c) the search of his home was

11

without a warrant, and the consent of his wife was coerced “under Color of Authority” in
violation of constitutional rights and a state statute. ECF No. 13 at 5.
The Court first will address subclaim 1(b). Mr. Miner complained on direct
appeal in Miner I that his waiver of Miranda rights prior to his interview at the police
station was constitutionally invalid. ECF No. 9, ex. I (appellant’s opening brief in Miner
I) at 26-31, G (petition for writ of certiorari in Miner I) at 8-9. However, that argument is
not the same as subclaim 1(b) he raises here, i.e., that the trial court lacked jurisdiction
over his criminal case because arresting officers failed to advise him of his Miranda
rights prior to asking for his consent to search his home.
Mr. Miner did not argue on direct appeal in Miner I, ECF No. 9, ex. I, or on
postconviction review in Miner II, ECF No. 9, ex. E (E1 through E8) (appellant’s opening
brief in Miner II), subclaim 1(b) that the trial court lacked jurisdiction over his criminal
case because arresting officers were required but failed to give Miranda warnings
before requesting his consent to search his home.
Similarly, Applicant did not fairly present to any court in Miner I or Miner II
subclaim 1(c) that the trial court lacked jurisdiction over his criminal case because the
search his home was without a warrant, and the consent of his wife was coerced.
Respondents therefore contend Mr. Miner failed to present subclaims 1(b) and
1(c) to any court in Miner I or Miner II. Based upon a review of the opening briefs
before the Colorado Court of Appeals in Miner I (ECF No. 9, ex. I) and Miner II (ECF
No. 9, ex. E), the Court agrees. Mr. Miner cannot now present subclaims 1(b) and 1(c)
to the state courts because the three-year limitation period on state postconviction

12

claims on non-class one felonies has expired, see Colo. Rev. Stat. § 16-5-402, and the
subclaims would be barred under Colo. R. Crim. P. 35(c)(3)(VII). Rule 35(c)(3)(VII)
bars Mr. Miner from raising in a postconviction motion a claim that could have been
presented in a prior appeal or postconviction proceeding. As such, subclaims 1(b) and
(c) are 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.
C.

Subclaims 1(d) and 1(e)
Mr. Miner further argues that the trial court “did not have jurisdiction” over his

criminal case for two reasons: 1(d) there was insufficient evidence that he intended to
kill the victim because the murder charge was based on the victim’s age “and other
prejudicial assumptions,” and 1(e) the victim’s identification of Applicant was “coerced”
when police told her that defendant was her attacker. ECF No. 13 at 6. Respondents
argue Mr. Miner never fairly presented either subclaim to the state courts. After review
of the opening briefs before the Colorado Court of Appeals in Miner I (ECF No. 9, ex. I)
and Miner II (ECF No. 9, ex. E), the Court also agrees. Although Mr. Miner generally
alleges that the trial court exceeded its jurisdiction to convict him for first-degree murder
(ECF No. 9, ex. E1 at 17), he bases the claim on allegations that the information was
defective because it failed to charge the elements of the offense (id. at 17-18), and not
on the allegations of 1(d) or 1(e).
Mr. Miner cannot now present subclaims 1(d) and 1(e) to the state courts
because the three-year limitation period on state postconviction claims on non-class

13

one felonies has expired, see Colo. Rev. Stat. § 16-5-402, and the subclaims would be
barred under Colo. R. Crim. P. 35(c)(3)(VII). Rule 35(c)(3)(VII) bars Mr. Miner from
raising in a postconviction motion a claim that could have been presented in a prior
appeal or postconviction proceeding. As such, subclaims 1(d) and 1(e) are
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.
D.

Subclaims 2(a)(i), 2(a)(ii), and 2(a)(iii)
In claims 2(a)(i) through 2(a)(iii), Mr. Miner alleges he had ineffective assistance

of trial counsel because trial counsel (2)(a)(i) lacked experience representing criminal
defendants, (2)(a)(ii) made “no real attempt” to devote the time necessary to
communicate adequately with him (ECF No. 13 at 7), and (2)(a)(iii) failed to introduce
“key elements and specific facts” that would have influenced the jury in his favor; the
jury was “left ignorant” of “most of [Applicant’s] information.” Id.
Respondents contend subclaims 2(a)(i), 2(a)(ii), and 2(a)(iii) are insufficiently
pleaded because they fail to describe with specificity an unprofessional failure by
defense counsel that raises a reasonable probability of a different outcome had
counsel’s performance been professionally reasonable. See Strickland v. Washington,
466 U.S. 668, 687-90 (1984) (describing the test for claims of ineffective assistance of
counsel).
Pursuant to Rules 2(c)(1) and 2(c)(2) of the Rules Governing Section 2254
Cases in the United States District Courts (Section 2254 Rules), Mr. Miner m ust

14

“specify all [available] grounds for relief” and he must “state the facts supporting each
ground.” These habeas corpus rules are more demanding than the rules applicable to
ordinary civil actions, which require only notice pleading. See Mayle v. Felix, 545 U.S.
644, 655 (2005). It is Applicant’s job to point to a “real possibility ” of constitutional error.
See Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977); Williams v. Coleman, 722 F.2d
1048, 1051 (2d Cir. 1983) (habeas corpus is not a routine procedure to search f or
wrongs); see also Brown v. Allen, 344 U.S. 443, 537 (1953) (concurring opinion) (“He
who must search a haystack for a needle is like to end up with the attitude that the
needle is not worth the search.”). Naked allegations of constitutional violations without
any supporting factual allegations are not cognizable under § 2254. See Ruark v.
Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (per curiam).
Mr. Miner fails in the amended § 2254 application to describe with specificity or
support with factual allegations his contention in claims 2(a)(i) through 2(a)(iii) that he
had ineffective assistance of counsel. Because Mr. Miner offers only vague and
conclusory allegations insufficient to show counsel's legal representation fell below an
objective standard of reasonableness, and “the deficient performance prejudiced the
defense,” Strickland 466 U.S. at 687-88, claims 2(a)(i), 2(a)(ii), and 2(a)(iii) are
unpersuasive and rejected as a grounds for habeas relief.
E.

Subclaims 2(a)(iv)(1), 2(a)(iv)(2), 2(a)(iv)(3), and 2(a)(v)
In subclaims 2(a)(iv)(1), 2(a)(iv)(2), 2(a)(iv)(3), and 2(a)(v), Mr. Miner alleges that

he had ineffective assistance of counsel because trial counsel failed to conduct
sufficient pretrial investigation to 2(a)(iv)(1) seek exclusion of “any mention” of the word

15

“homicide” from the trial (ECF No. 13 at 7), 2(a)(iv)(2) discover a videotaped confession
made in the absence of counsel, and 2(a)(iv)(3) request an evaluation of the victim’s
mental condition “to test the credibility of her statements and . . . what actually
happened at the scene” (ECF No. 13 at 7-8), and that he had inef fective assistance of
counsel because trial counsel 2(a)(v) requested continuances and delays, resulting in
the deprivation of his speedy trial right under 18 U.S.C. § 3161(a) (ECF No. 13 at 8).
Respondents argue Mr. Miner never fairly presented to the state courts any of
the theories of ineffective assistance of counsel included in subclaims 2(a)(iv) or 2(a)(v).
Respondents concede that in Miner II, and in his initial habeas corpus application, Mr.
Miner did allege ineffective assistance of counsel in that counsel elected not to crossexamine the victim (ECF No. 1 at 6; ECF No. 9, ex. E2 at 8-9). However, Respondents
point out the claim that counsel was ineffective for electing not to cross-examine the
victim is not substantially the same claim as those asserted in current subclaims 2(a)(iv)
or 2(a)(v). See Gardner v. Galetka, 568 F.3d 862, 872 (10th Cir. 2009) (claim raised in
federal habeas petition based on an entirely different factual predicate not substantially
the same as claim raised in state court). As a result, Respondents argue that Mr. Miner
is now procedurally barred from raising in the state courts subclaims 2(a)(iv)(1),
2(a)(iv)(2), 2(a)(iv)(3), and 2(a)(v), which are anticipatorily defaulted.
After review of the opening briefs before the Colorado Court of Appeals in Miner
I (ECF No. 9, ex. I) and Miner II (ECF No. 9, ex. E), the Court also agrees.
Mr. Miner cannot now present subclaims 2(a)(iv)(1), 2(a)(iv)(2), 2(a)(iv)(3), and
2(a)(v) to the state courts because the three-year limitation period on state
postconviction claims on non-class one felonies has expired, see Colo. Rev. Stat. § 1616

5-402, and these subclaims would be barred under Colo. R. Crim. P. 35(c)(3)(VII). Rule
35(c)(3)(VII) bars Mr. Miner from raising in a postconviction motion a claim that could
have been presented in a prior appeal or postconviction proceeding. As such,
subclaims 2(a)(iv)(1), 2(a)(iv)(2), 2(a)(iv)(3), and 2(a)(v) are 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.
F.

Subclaim 2(a)(iv)(4)
In subclaim 2(a)(iv)(4), Mr. Miner alleges that he had ineffective assistance of

counsel because trial counsel failed to conduct sufficient pretrial investigation to
confront the victim “about [the] alleged offense(s),” which would have established the
absence of an intent to kill (ECF No. 13 at 8). Construing subclaim 2(a)(iv)(4) as a
restatement of claim two in the original application (ECF No. 1 at 6), Respondents
contend Mr. Miner is arguing that trial counsel should have cross-examined the victim,
but elected not to do so.
Respondents concede that in Miner II Applicant fairly presented this subclaim to
the Colorado Court of Appeals as a violation of Strickland. ECF No. 9, ex. E2 at 8-9.
However, they argue that subclaim 2(a)(iv)(4) is not exhausted because Mr. Miner failed
to present this subclaim to the Colorado Supreme Court. See ECF No. 9, ex. C
(petition for writ of certiorari). For the reasons stated below, the Court finds that
subclaim 2(a)(iv)(4) is exhausted.

17

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 f inds 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).
As previously stated, Respondents concede Mr. Miner fairly presented subclaim
2(a)(iv)(4) as a question of federal constitutional law in the Colorado Court of Appeals.

18

Therefore, the Court finds that subclaim 2(a)(iv)(4) 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 this specific issue, see Berg v. Foster, 244 F. App’x 239, 247 (10th
Cir. Aug. 6, 2007), Respondents argue that in Prendergast v. Clements, 699 F.3d 1182
(10th Cir. 2012), and Vreeland v. Davis, 543 F. App’x 739 (10th Cir. 2013), 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
O’Sullivan 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.
In Vreeland, the Tenth Circuit noted that an applicant could not hav e exhausted his
federal claims because he was in the process of petitioning the Colorado Supreme
Court for certiorari review. Vreeland, 543 F. App’x at 741 (citing Brown v. Shanks, 185
F.3d 1122, 1124 (10th Cir. 1999) (exhaustion requires presentation to the highest state
court)). However, absent a definitive holding by the Tenth Circuit on the effect of Colo.

19

App. R. 51.1, this Court holds that Mr. Miner’s failure to raise subclaim 2(a)(iv)(4) 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 as a result that subclaim 2(a)(iv)(4) is exhausted.
G.

Subclaim 2(a)(vi)
In subclaim 2(a)(vi), Mr. Miner asserts cumulative error based upon ineffective

assistance of counsel. ECF No. 13 at 7-8 & n.1. Although in footnote one Mr. Miner
briefly references prosecutorial misconduct and trial court error together with ineffective
assistance of counsel, the underlying substance of this cumulative error subclaim is
ineffective assistance of counsel. The actions of counsel that Mr. Miner contends
warrant relief under Strickland are listed in above subclaims 2(a)(iv)(1), 2(a)(iv)(2),
2(a)(iv)(3), each of which was procedurally defaulted, and in 2(a)(iv), which was
exhausted. In these subclaims, Mr. Miner alleges he had ineffective assistance of
counsel because trial counsel failed to conduct sufficient pretrial investigation to
2(a)(iv)(1) seek exclusion of “any mention” of the word “homicide” from the trial (ECF
No. 13 at 7), 2(a)(iv)(2) discover a videotaped confession made in the absence of
counsel, 2(a)(iv)(3) request an evaluation of the victim’s mental condition “to test the
credibility of her statements and . . . what actually happened at the scene” (ECF No. 13
at 7-8), and 2(a)(iv)(4) confront the victim “about [the] alleged offense(s),” which would
have established the absence of an intent to kill (ECF No. 13 at 8).

20

In Miner II, Mr. Miner fairly presented a different cumulative-error claim. See
ECF No. 9, ex. E2 at 3-10; ECF No. 9, ex. E3 at 1-3. The instant cumulative-error claim
accumulated a different set of allegedly unprofessional acts by counsel, save one.
Specifically, counsel’s acts challenged in Miner II were failure to (1) investigate experts
who could rebut, and identify areas for cross-examination of, the prosecution’s medical
experts (ECF No. 9, ex. E2 at 4-6); (2) cross-examine the victim (ECF No. 9, ex. E2 at
8-9), which Mr. Miner raised and exhausted in subclaim 2(a)(iv)(4) discussed above;
and (3) object to alleged prosecutorial misconduct in handling the post-trial disclosure
by juror W (ECF No. 9, ex. E2 at 9-10; ECF No. 9, ex. E3 at 1-3).
The sole deficiency common to the cumulative-error claims raised in Miner II and
in the amended habeas corpus application before the Court is counsel’s alleged failure
to cross-examine the victim. As noted above in the discussion of subclaim 2(a)(iv)(4),
the Court found that Mr. Miner exhausted the claim that counsel was ineffective for
failing to cross-examine the victim.
To the extent Mr. Miner bases his cumulative-error subclaim on defaulted
subclaims 2(a)(iv)(1), 2(a)(iv)(2), and 2(a)(iv)(3), subclaim 2(a)(vi) is anticipatorily
defaulted. The subclaim cannot now be presented to the state courts because the
three-year limitation period on state postconviction claims on non-class one felonies
has expired, see Colo. Rev. Stat. § 16-5-402, and subclaim 2(a)(vi) would be barred
under Colo. R. Crim. P. 35(c)(3)(VII). Rule 35(c)(3)(VII) bars Mr. Miner from raising in a
postconviction motion a claim that could have been presented in a prior appeal or
postconviction proceeding.

21

To the extent a cumulative-error claim raised in a habeas corpus application
relies upon defaulted claims of ineffective assistance of counsel, the cumulative error
claim itself is defaulted. Hughs v. Dretke, 412 F.3d 582, 597 (5th Cir. 2005); Ray v.
Simmons, 125 F. App’x 943, 947 (10th Cir. 2005). As such, subclaim 2(a)(vi) is
procedurally defaulted to the extent it relies on defaulted subclaims 2(a)(iv)(1) to
2(a)(iv)(3). 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.
To the extent the cumulative-error subclaim relies upon exhausted subclaim
2(a)(iv)(4) that counsel was ineffective for failure to cross-examine the witness, the
cumulative-error subclaim also fails. A cumulative-error analysis applies only if there
are at least two errors. Hooks v. Workman, 689 F.3d 1148, 1194-95 (10th Cir. 2012).
Because there are not at least two errors upon which the cumulative-error subclaim
now rests, a cumulative-error analysis is not warranted. Id. at 1195. Therefore, the
cumulative-error subclaim is without merit.
H.

Subclaims 2(b) and 2(c)(i)
Respondents argue without discussion that subclaim 2(b), i.e., that there was

insufficient evidence Applicant was “involved in anything more than a simple theft[]”
(ECF No. 13 at 9), is the same as subclaim 1(d) discussed above, i.e., that the trial
court lacked jurisdiction over Applicant’s case because there was insufficient evidence
he intended to kill the victim; the murder charge was based on the victim’s age and
“other prejudicial assumptions” (ECF No. 13 at 6). They further point out that since

22

subclaim 1(d) is anticipatorily defaulted, subclaim 2(b) is anticipatorily defaulted.
Respondents also argue that subclaim 2(c)(i), i.e., prosecutorial misconduct in
charging attempted first-degree murder solely for the purpose of “aggrandizement in a
simply aggravated theft case” (ECF No. 13 at 9), never has been fairly presented to the
state courts.
Based upon review of the opening briefs before the Colorado Court of Appeals in
Miner I (ECF No. 9, ex. I) and Miner II (ECF No. 9, ex. E), the Court finds that Mr. Miner
failed to raise subclaims 2(b) and 2(c)(i) before the state courts. Mr. Miner cannot now
present subclaims 2(b) and 2(c)(i) to the state courts because the three-year limitation
period on state postconviction claims on non-class one felonies has expired, see Colo.
Rev. Stat. § 16-5-402, and the subclaims would be barred under Colo. R. Crim. P.
35(c)(3)(VII). Rule 35(c)(3)(VII) bars Mr. Miner from raising in a postconviction motion a
claim that could have been presented in a prior appeal or postconviction proceeding.
As such, subclaims 2(b) and 2(c)(i) are procedurally defaulted. See Coleman, 501 U.S.
at 735 n.1; Anderson, 476 F.3d at 1139 n.7. Mr. Miner has not made the necessary
showing of cause and prejudice or actual innocence to excuse his procedural default.
I.

Subclaims 2(c)(ii)(1), 2(c)(ii)(2), 2(c)(ii)(3), 2(d)(ii), 2(d)(iii), 2(d)(iv), and
2(d)(v)
In subclaims 2(c)(ii)(1), 2(c)(ii)(2), and 2(c)(ii)(3), Mr. Miner alleges prosecutorial

misconduct for (2)(c)(ii)(1) withholding information that juror W. had mentioned to the
prosecution, after trial, something about looking at Gray’s Anatomy during trial (ECF No.
13 at 9); 2(c)(ii)(2) subsequently having an ex parte conversation with juror W. (id.); and
2(c)(ii)(3) failing to seek a mistrial based on juror W.’s alleged misconduct (id.). In
23

subclaims 2(d)(ii), 2(d)(iii), 2(d)(iv), and 2(d)(v), Mr. Miner alleges judicial bias, in that
the trial judge 2(d)(ii) questioned jurors individually, from the bench, about possible
exposure to extraneous information as a result of juror W.’s disclosure, without
permitting Applicant (or the prosecution) to examine or cross-examine directly and
confront the jurors, and instead “censored” questions submitted by the parties (ECF No.
13 at 10-11); 2(d)(iii) colluded with the prosecution to overlook juror W.’s alleged
misconduct (ECF No. 13 at 9-10); 2(d)(iv) erroneously prohibited the parties from
contacting jurors to investigate their possible exposure to extraneous information (ECF
No. 13 at 10-11); and 2(d)(v) failed to declare a mistrial upon learning that any juror
might have consulted extraneous information (ECF No. 13 at 11).
These subclaims stem from events following the verdict, which the Colorado
Court of Appeals described in Miner I as follows:
More than three weeks after the jury returned its
verdict, the People filed a “Disclosure of Post-Verdict
Contact.” This disclosure informed the court that the
prosecutor had spoken with two jurors after the verdict, and
that one of the jurors [juror W.] had made a vague comment
about having looked at Gray’s Anatomy during the trial. The
court scheduled a hearing on the matter for December 15,
2006. Defendant moved for discovery related to the jurors’
possible exposure to extraneous information, requesting that
the prosecutor disclose the jurors’ names and the full
substance of his conversations with the jurors.
At the hearing, the court granted defendant’s
discovery motion, but, over defendant’s objection, prohibited
either party from initiating any communication with any of the
jurors pending further court order. In its subsequent written
order, the court stated that it would conduct its “own inquiry
of each juror separately [at each juror’s convenience] . . . in
open court, on the record,” and with representatives of both
parties present. The court invited the attorneys to submit
written questions to ask the jurors.
24

At subsequent hearings, the court questioned each
juror separately, under oath, and with both parties’ attorneys
present. At the first hearing, before the first juror was
brought in, the court considered the admissibility of the
parties’ proposed questions for the jurors. The court also
told the attorneys that if they would like to ask follow up
questions of a juror, it would hold a bench conference to
discuss those questions prior to asking them. At the end of
each hearing, the court instructed each juror not to discuss
the matter with any of the other jurors.
ECF No. 15 at 27-28; ECF No. 9, ex. H at 23-25; see also ECF No. 9, ex. A at 5-6.
Respondents assert that because the prosecutor’s vacation began immediately
after trial, the prosecutor did not report juror W .’s comment to the court until after
returning from vacation, twenty-three days later. ECF No. 9, ex. E5 at 1; ECF No. 9, ex.
I at 17. When juror W. received a post-trial subpoena to testify, she contacted the
prosecutor to ask the reason for the subpoena. ECF No. 15 at 29. The prosecutor told
juror W. she was not in trouble. Id. Juror W. then told the prosecutor she had wanted
to, but did not, look at Gray’s Anatomy during trial. Id. This conversation occurred
before the trial court prohibited either side from juror contact outside of court hearings.
ECF No. 9, ex. E4 at 2; ECF No. 9, ex. I at 17-18; ECF No. 9, ex. A at 5-6.
In post-verdict hearings, the trial court asked each juror individually whether he
or she had been exposed to extraneous information. ECF No. 9, ex. I at 18; ECF No.
15 at 29. As part of the inquiry, the court invited both sides to submit proposed
questions. ECF No. 15 at 29. After the hearings, the trial court concluded that the jury
had not been improperly exposed to extraneous information. ECF No. 9, ex. I at 19;
ECF No. 9, ex. A at 5.

25

On January 24, 2007, Applicant moved for a new trial following the trial court’s
hearings and resolution on this issue. ECF No. 9, ex. J (motion for new trial). The
motion was denied on January 26, 2007, the day of the last trial court hearing on the
issue. ECF No. 9, ex. A at 5.
1.

Subclaim 2(c)(ii)(1)

Respondents argue that subclaim 2(c)(ii)(1), which asserts prosecutorial
misconduct in withholding information that juror W. had mentioned to the prosecution,
after trial, i.e., something about looking at Gray’s Anatomy during trial (ECF No. 13 at
9), is procedurally defaulted. In Miner II, Applicant argued that the prosecution’s
twenty-three day delay in reporting juror W’s reference to looking at Gray’s Anatomy
during trial violated due process. ECF No. 9, ex. E4 at 3; ECF No. 9, ex. E5 at 1; ECF
No. 9, ex. E6 at 2; ECF No. 9, ex. E7 at 1; ECF No. 9, ex. E8 at 1. However, the
Colorado Court of Appeals declined to consider the argument because it either had
been raised on direct appeal pursuant to Colo. R. Crim . P. 35(c)(3)(VI), or could have
been raised on direct appeal pursuant to Colo. R. Crim . P. 35(c)(3)(VII). See ECF No.
9, ex. D at 4-5. The Colorado Court of Appeals noted in Miner II that its opinion issued
on direct appeal in Miner I specifically addressed the post-verdict juror hearings from
which the claim of prosecutorial misconduct originated. Id.
Because subclaim 2(c)(ii)(1) was not raised in Miner I, see ECF No. 9, ex. I, the
claim is barred under Colo. R. Crim. P. 35(c)(3)(VII). The subclaim is precluded from
federal review as defaulted in state court on an independent and adeq uate state
procedural ground unless Applicant can demonstrate cause for the default and actual
prejudice as a result of the federal violation, or demonstrate that failure to consider the
26

claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750;
Cummings, 506 F.3d at 1224. Mr. Miner has not made the necessary showing of cause
and prejudice or actual innocence to excuse his procedural default or a fundamental
miscarriage of justice. Thus, subclaim 2(c)(ii)(1) is procedurally defaulted.
2.

Subclaims 2(c)(ii)(2) and 2(c)(ii)(3)

In subclaims 2(c)(ii)(2) and 2(c)(ii)(3), Mr. Miner alleges prosecutorial misconduct
in 2(c)(ii)(2) for having an ex parte conversation with juror W. subsequent to trial (ECF
No. 13 at 9); and 2(c)(ii)(3) failing to seek a mistrial based on juror W.’s alleged
misconduct (id.). In Miner II, Applicant argued to the Colorado Court of Appeals that
the prosecutor had an ex parte conversation with juror W., and failed to seek a mistrial
upon hearing juror W.’s initial comment, both in violation of due process. ECF No. 9,
ex. E5 at 1; ECF No. 9, ex. E6 at 1-2.
Respondents argue that because Mr. Miner omitted these subclaims from his
petition for writ of certiorari to the Colorado Supreme Court in Miner II, the subclaims
are unexhausted. See ECF No. 9, ex. C at 4, 7. For the reasons discussed in the
section on subclaim 2(a)(iv)(4) above and reiterated here, the Court disagrees.
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.
27

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 f inds 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, No. 10-cv-02681-BNB, 2011 WL 805787, at *4.
Respondents concede Mr. Miner fairly presented subclaims 2(c)(ii)(2) and
2(c)(ii)(3) as a question of federal constitutional law in the Colorado Court of Appeals.
See ECF No. 9, ex. E5 at 1; ECF No. 9, ex. E6 at 1-2. Therefore, the Court finds that
subclaims 2(c)(ii)(2) and 2(c)(ii)(3) are 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, 387 F.3d at 233; Adams, 330 F.3d at 401-03; Randolph,
276 F.3d at 404-05; and Swoopes, 196 F.3d at 1009-10.

28

Although the Tenth Circuit has not addressed the specific issue, see Berg, 244
F. App’x at 247, Respondents argue that in Prendergast v. Clements, 699 F.3d 1182
(10th Cir. 2012), and Vreeland v. Davis, 543 F. App’x 739 (10th Cir. 2013), 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
O’Sullivan 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.
In Vreeland, the Tenth Circuit noted that an applicant could not hav e exhausted his
federal claims because he was in the process of petitioning the Colorado Supreme
Court for certiorari review. Vreeland, 543 F. App’x at 741 (citing Brown, 185 F.3d at
1124) (exhaustion requires presentation to the highest state court)). However, absent a
definitive holding by the Tenth Circuit on the effect of Colo. App. R. 51.1, this Court
holds that Mr. Miner’s failure to raise subclaims 2(c)(ii)(2) and 2(c)(ii)(3) in a petition for
certiorari review to the Colorado Supreme Court does not demonstrate that the claims
are unexhausted. See Hoeck, No. 13-cv-02575-WJM, 2014 WL 376398, at *6.
The Court finds that subclaims 2(c)(ii)(2) and 2(c)(ii)(3) are exhausted.
3.

Subclaims 2(d)(ii) and 2(d)(iv)

Applicant asserts judicial bias because the trial judge 2(d)(ii) questioned jurors
individually, from the bench, about possible exposure to extraneous information as a
result of juror W.’s disclosure, without permitting Applicant (or the prosecution) to
examine or cross-examine directly and confront the jurors, and instead “censored”
questions submitted by the parties (ECF No. 13 at 10-11), and 2(d)(iv) erroneously
prohibited the parties from contacting jurors to investigate their possible exposure to
29

extraneous information (ECF No. 13 at 10-11).
In Miner I, Applicant did not challenge the trial court’s decision to hold post-trial
hearings to question each juror about potential exposure to extraneous information;
rather, he argued the trial court erred by precluding the parties from contacting the
jurors before the hearings and by directing the parties to submit questions for the court
to ask. ECF No. 9, ex. I at 32-37; ECF No. 9, ex. G at 10-12. As part of this argument,
Mr. Miner asserted the existence of a constitutional right to a hearing to prove
impermissible bias on the part of one or more jurors. ECF No. 9, ex. I at 34. Mr. Miner
did not claim he was not provided with such a hearing. Rather, he expressed
dissatisfaction with the formal manner in which the court conducted the hearing.
Respondents argue these are anticipatorily defaulted. The Court disagrees. Mr.
Miner raised substantially the same claims before the state courts that he raises here.
Therefore, the Court finds that subclaims 2(d)(ii) and 2(d)(iv) were exhausted in Miner I.
4.

Subclaim 2(d)(iii)

In subclaim 2(d)(iii), Mr. Miner alleges judicial bias because the trial judge
colluded with the prosecution to overlook juror W.’s alleged misconduct in looking at
Gray’s Anatomy during trial. (ECF No. 13 at 9-10). Respondents argue that Mr. Miner
never presented this claim fairly to the state courts. Based upon review of the opening
briefs before the Colorado Court of Appeals in Miner I (ECF No. 9, ex. I) and Miner II
(ECF No. 9, ex. E), the Court agrees that Mr. Miner failed to raise subclaim 2(d)(iii)
before the state courts.
Mr. Miner cannot now present subclaim 2(d)(iii) to the state courts because the
three-year limitation period on state postconviction claims on non-class one felonies
30

has expired, see Colo. Rev. Stat. § 16-5-402, and the subclaim would be barred under
Colo. R. Crim. P. 35(c)(3)(VII). Rule 35(c)(3)(VII) bars Mr. Miner from raising in a
postconviction motion a claim that could have been presented in a prior appeal or
postconviction proceeding. As such, subclaim 2(d)(iii) is procedurally defaulted. See
Coleman, 501 U.S. at 735 n.1; Anderson, 476 F.3d at 1139 n.7. Mr. Miner has not
made the necessary showing of cause and prejudice or actual innocence to excuse his
procedural default.
5.

Subclaim 2(d)(v)

In subclaim 2(d)(v), Mr. Miner alleges judicial bias because the trial judge failed
to declare a mistrial upon learning that any juror might have consulted extraneous
information (ECF No. 13 at 11).
Respondents argue that Mr. Miner never presented subclaim 2(d)(v) fairly to the
state courts a claim of a constitutional violation stemming from the trial court’s failure to
declare a mistrial upon learning of juror W.’s comment about looking at Gray’s
Anatomy. Based upon review of the opening briefs before the Colorado Court of
Appeals in Miner I (ECF No. 9, ex. I) and Miner II (ECF No. 9, ex. E), the Court agrees
that Mr. Miner failed to raise subclaim 2(d)(v) before the state courts. Instead, he
asserted in Miner II that the prosecutor failed to “call[ ] for a mistrial” after learning of
juror W’s comment about looking at Gray’s Anatomy, ECF No. 9, ex. E5 at 1, as did
Applicant’s defense counsel. ECF No. 9, ex. E8 at 1.
Mr. Miner cannot now present subclaim 2(d)(v) to the state courts because the
three-year limitation period on state postconviction claims on non-class one felonies
has expired, see Colo. Rev. Stat. § 16-5-402, and the subclaim would be barred under
31

Colo. R. Crim. P. 35(c)(3)(VII). Rule 35(c)(3)(VII) bars Mr. Miner from raising in a
postconviction motion a claim that could have been presented in a prior appeal or
postconviction proceeding. As such, subclaim 2(d)(v) is procedurally defaulted. See
Coleman, 501 U.S. at 735 n.1; Anderson, 476 F.3d at 1139 n.7. Mr. Miner has not
made the necessary showing of cause and prejudice or actual innocence to excuse his
procedural default.
J.

Subclaim 2(d)(i)
In subclaim 2(d)(i), Mr. Miner alleges judicial bias because the trial judge

erroneously ruled Applicant validly waived his Miranda rights prior to his police
interview, even though Mr. Miner did not understand that a lawyer would be appointed
for him at state expense if he requested one, thereby permitting introduction of
Applicant’s videotaped statement in the absence of counsel (ECF No. 13 at 9-10).
Respondents argue Mr. Miner failed to present fairly to the state courts in either
Miner I or Miner II a claim of unconstitutional judicial bias based upon any ruling by the
trial judge. However, Respondents concede Mr. Miner did argue in Miner I that the
waiver of his right to counsel during police interrogation was not knowing and intelligent,
such that his videotaped statement was taken in violation of his Fifth Amendment
privilege against self-incrimination. ECF No. 9, ex. I at 26-31; ECF No. 9, ex. G at 8-9.
Based upon review of the opening briefs before the Colorado Court of Appeals in
Miner I (ECF No. 9, ex. I) and Miner II (ECF No. 9, ex. E), the Court finds that Mr. Miner
failed to raise before the state courts a claim of unconstitutional judicial bias based
upon the trial judge’s erroneous ruling that Applicant validly waived his Miranda rights
prior to his police interview, even though Mr. Miner did not understand that a lawyer
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would be appointed for him at state expense if he requested one, thereby permitting
introduction of Applicant’s videotaped statement in the absence of counsel.
To the extent Mr. Miner alleges such judicial bias, subclaim 2(d)(i) is anticipatorily
defaulted. Mr. Miner cannot now present the judicial bias portion of subclaim 2(d)(i) to
the state courts because the three-year limitation period on state postconviction claims
on non-class one felonies has expired, see Colo. Rev. Stat. § 16-5-402, and subclaim
2(d)(i) asserting judicial bias would be barred under Colo. R. Crim. P. 35(c)(3)(VII).
Rule 35(c)(3)(VII) bars Mr. Miner from raising in a postconviction motion a claim that
could have been presented in a prior appeal or postconviction proceeding. As such,
subclaim 2(d)(i) asserting judicial bias is procedurally defaulted. See Coleman, 501
U.S. at 735 n.1; Anderson, 476 F.3d at 1139 n.7. Mr. Miner has not made the
necessary showing of cause and prejudice or actual innocence to excuse his
procedural default.
However, to the extent Mr. Miner contends the waiver of his right to counsel
during police interrogation was not knowing and intelligent, such that his videotaped
statement was taken in violation of his Fifth Amendment privilege against selfincrimination, subclaim 2(d)(i) is exhausted.
K.

Subclaim 2(e)
In subclaim 2(e), Mr. Miner contends the jury was exposed to extraneous

information, as evidenced by a comment by juror W. in a post-trial discussion with one
of the prosecutors making reference to looking at Gray’s Anatomy (ECF No. 13 at 9).
Respondents concede Mr. Miner fairly presented subclaim 2(e) as a constitutional
violation to the Colorado Court of Appeals in Miner II. ECF No. 9, ex. E3 at 4-5; ECF
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No. 9, ex. E4 at 1-4. However, the Colorado Court of Appeals declined to consider the
argument because it either had been raised on direct appeal pursuant to Colo. R. Crim .
P. 35(c)(3)(VI), or could have been raised on direct appeal pursuant to Colo. R. Crim . P.
35(c)(3)(VII). See ECF No. 9, ex. D at 4-5. The Colorado Court of Appeals noted in
Miner II that its opinion issued on direct appeal in Miner I specifically addressed the
post-verdict juror hearings from which the claim of juror misconduct originated. Id.
A review of the opening brief before the Colorado Court of Appeals in Miner I
(ECF No. 9, ex. I) reveals that Mr. Miner did not raise the argument in Miner I. Instead,
he raised in Miner I the subclaims 2(d)(ii) and 2(d)(iv) discussed above challenging the
format of the trial court’s post-verdict hearings questioning jurors about their possible
exposure to extraneous information, the court’s censorship of questions submitted by
the parties, and the court’s prohibition of the parties’ contact with jurors outside the
hearings.
Because subclaim 2(e) was not raised in Miner I, the claim is barred under Colo.
R. Crim. P. 35(c)(3)(VII). The subclaim is precluded from federal review as defaulted in
state court on an independent and adeq uate state procedural ground unless Applicant
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, 506 F.3d at 1224. Mr.
Miner has not made the necessary showing of cause and prejudice or actual innocence
to excuse his procedural default or a fundamental miscarriage of justice. Thus,
subclaim 2(e) is procedurally defaulted.

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L.

Subclaims 3(a) and 3(b)
As his third and final claim 3, Mr. Miner asserts violations of the Fourth

Amendment. He alleges in subclaim 3(a) that he was in “physical and psychological
distress” and did not consent to the search at the tim e it was conducted (ECF No. 13 at
11), and in subclaim 3(b) that officers obtained consent to search from his wife by being
“deliberately deceitful” and “us[ing] pressure” on her to gain entry (id.). Claim 3 also
complains that all evidence seized during the search of his home “was in violation of the
Chain of Custody,” and that the search essentially forced his wife to testify against him
(id.).
Respondents maintain subclaim 3(a) is a restatement of subclaim 1(a), in which
Mr. Miner asserts that the trial court “did not have jurisdiction” over his criminal case
because he was arrested at gunpoint and “in fear of physical retribution” by arresting
officers, such that any statements he made during the arrest were coerced. ECF No.
13 at 5. Therefore, Respondents concede subclaim 3(a) is exhausted because they
concede subclaim 1(a) is exhausted.
Respondents also maintain subclaim 3(b) is a restatement of subclaim 1(c) in
which Mr. Miner argues that the trial court “did not have jurisdiction” over his criminal
case because the search of his home was without a warrant, and the consent of his
wife was coerced “under Color of Authority” in violation of constitutional rights and a
state statute. ECF No. 13 at 5. Therefore, Respondents contend subclaim 3(b) is
procedurally defaulted because subclaim 1(c) is procedurally defaulted. The Court
agrees.

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Finally, Respondents argue that Mr. Miner did not present his chain-of-custody or
spousal-privilege arguments to the Colorado Court of Appeals in Miner I or Miner II.
Based upon review of the opening briefs before the Colorado Court of Appeals in Miner
I (ECF No. 9, ex. I) and Miner II (ECF No. 9, ex. E), the Court agrees that Mr. Miner
failed to present his chain-of-custody or spousal-privilege arguments before the state
courts.
Mr. Miner cannot now present subclaim 3(b) or his chain-of-custody or spousalprivilege arguments as federal constitutional claims to the state courts because the
three-year limitation period on state postconviction claims on non-class one felonies
has expired, see Colo. Rev. Stat. § 16-5-402, and subclaim 3(b) and the chain-ofcustody and spousal-privilege arguments would be barred under Colo. R. Crim. P.
35(c)(3)(VII). Rule 35(c)(3)(VII) bars Mr. Miner from raising in a postconviction motion a
claim that could have been presented in a prior appeal or postconviction proceeding.
As such, subclaim 3(b), the chain-of-custody argument, and the spousal-privilege
argument are procedurally defaulted. See Coleman, 501 U.S. at 735 n.1; Anderson,
476 F.3d at 1139 n.7. Mr. Miner has not made the necessary showing of cause and
prejudice or actual innocence to excuse his procedural default.
IV. CONCLUSION
The Court finds that Mr. Miner subclaims and arguments are exhausted, without
merit, procedurally defaulted, and insufficiently pleaded as follows:
1.

Subclaims 1(a), 2(a)(iv)(4), 2(c)(ii)(2), 2(c)(ii)(3), the portion of subclaim

2(d)(i) alleging Applicant’s waiver of his right to counsel during police interrogation was
not knowing and intelligent, and subclaims 2(d)(ii), 2(d)(iv), 3(a) are exhausted;
36

2.

Subclaim 2(a)(vi) is without merit and will be dismissed;

3.

Subclaims 1(b), 1(c), 1(d), 1(e), 2(a)(iv)(1), 2(a)(iv)(2), 2(a)(iv)(3), 2(a)(v),

2(b), 2(c)(i), 2(c)(ii)(1), the portion of subclaim 2(d)(i) alleging judicial bias
stemming from the trial court’s determination that Applicant’s waiver of his right
to counsel during police interrogation was valid, subclaims 2(d)(iii), 2(d)(v), 2(e),
and 3(b) and the chain-of-custody and spousal-privilege arguments are
procedurally defaulted and will be dismissed; and
4.

Subclaims 2(a)(i), 2(a)(ii), and 2(a)(iii) are insufficiently pleaded and will

be dismissed.
Accordingly, it is ORDERED that
1.

Subclaim 2(a)(vi) is without merit and dismissed;

2.

Subclaims 1(b), 1(c), 1(d), 1(e), 2(a)(iv)(1), 2(a)(iv)(2), 2(a)(iv)(3), 2(a)(v),

2(b), 2(c)(i), 2(c)(ii)(1), the portion of subclaim 2(d)(i) alleging judicial bias
stemming from the trial court’s determination that Applicant’s waiver of his right
to counsel during police interrogation was valid, subclaims 2(d)(iii), 2(d)(v), 2(e),
and 3(b) and the chain-of-custody and spousal-privilege arguments are
procedurally defaulted and dismissed; and
3.

Subclaims 2(a)(i), 2(a)(ii), and 2(a)(iii) are insufficiently pleaded and

dismissed. It is
FURTHER ORDERED that within thirty days after 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 remaining
exhausted subclaims 1(a), 2(a)(iv)(4), 2(c)(ii)(2), 2(c)(ii)(3), the portion of subclaim
37

2(d)(i) alleging Applicant’s waiver of his right to counsel during police interrogation was
not knowing and intelligent, and subclaims 2(d)(ii), 2(d)(iv), and 3(a). It is
FURTHER ORDERED that a traverse, if any, and only a traverse, may be filed
within thirty days of the filing of the answer.
Dated this 3rd day of November, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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