Smith v. Bonner et al
ORDER to Draw Case. By Judge Lewis T. Babcock on 5/1/2014. (klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03499-BNB
WILLARD C. SMITH,
BOBBY BONNER, Warden, and
JOHN SUTHERS, Attorney General of the State of Colorado,
ORDER TO DRAW CASE
Applicant, Willard C. Smith, is a prisoner in the custody of the Colorado
Department of Corrections at the Kit Carson Correctional Center in Burlington,
Colorado. Mr. Smith initiated this action by filing pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). On February 12, 2014, Mr.
Smith filed an amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 (ECF No. 10). Mr. Smith is challenging the validity of his conviction in Otero
County District Court case number 04CR247.
On February 13, 2014, 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 April 2, 2014, Respondents filed their Pre-Answer
Response (ECF No. 18). Mr. Smith has not filed a reply to the Pre-Answer Response
despite being given an opportunity to do so.
The Court must construe the amended application liberally because Mr. Smith 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 case will be drawn to a presiding judge and, if applicable, to a magistrate
Respondents do not raise the affirmative defense of timeliness under 28 U.S.C. §
2244(d) and they concede that Mr. Smith has exhausted state remedies for six of the
seven claims he asserts in the amended application. The only claim Respondents
contend is not exhausted is claim four. Respondents specifically argue that claim four is
not exhausted because, although Mr. Smith presented the claim to the Colorado Court
of Appeals, he did not present the claim to the Colorado Supreme Court in a petition for
writ of certiorari.
Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus
may not be granted unless it appears that the applicant has exhausted state remedies
or that no adequate state remedies are available or effective to protect the applicant’s
rights. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is
satisfied once the federal claim has been presented fairly to the state courts. See
Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the
federal issue be presented properly “to the highest state court, either by direct review of
the conviction or in a postconviction attack.” Dever, 36 F.3d at 1534.
“The exhaustion requirement is not one to be overlooked lightly.” Hernandez v.
Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). A state prisoner bringing a federal
habeas corpus action bears the burden of showing that he has exhausted all available
state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
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(a). Pursuant to Colo. App. R. 51.1(a), the Court finds that review in
the Colorado Supreme Court is not required to exhaust state remedies if the claim in
question was presented fairly to, and relief was denied by, the Colorado Court of
Appeals. See, e.g., Valenzuela v. Medina, No. 10-cv-02681-BNB, 2011 WL 805787 (D.
Colo. Feb. 28, 2011). As noted above, Respondents concede that Mr. Smith fairly
presented claim four to the Colorado Court of Appeals and it is clear that the Colorado
Court of Appeals denied relief.
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(a) eliminate the need to seek review in the state’s
highest court in order to satisfy the exhaustion requirement. See Lambert v. Blackwell,
387 F.3d 210, 233 (3d Cir. 2004); Adams v. Holland, 330 F.3d 398, 401-03 (6th Cir.
2003); Randolph v. Kemna, 276 F.3d 401, 404-05 (8th Cir. 2002); Swoopes v. Sublett,
196 F.3d 1008, 1009-10 (9th Cir. 1999). Therefore, the Court finds that claim four is
In summary, Respondents do not raise the one-year limitation period as an
affirmative defense and the Court rejects Respondents’ arguments that Mr. Smith failed
to exhaust state remedies. Therefore, after review pursuant to D.C.COLO.LCivR 8.1(b),
the case will be drawn to a presiding judge and, if applicable, to a magistrate judge.
See D.C.COLO.LCivR 8.1(c). Accordingly, it is
ORDERED that this case shall be drawn to a presiding judge and, if applicable,
to a magistrate judge.
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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