Sherrod v. Bonner et al

Filing 16

ORDER Of Dismissal. The Application for a Writ of Habeas Corpus Pursuant to 28U.S.C. § 2254 (ECF No. 1 ) is DENIED and the action is DISMISSED. No certificate of appealability will issue. Leave to proceed in forma pauperis on appeal is DENIED without prejudice. By Judge Lewis T. Babcock on 5/14/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00127-BNB
ADOLPH Q. SHERROD,
Applicant,
v.
WARDEN BONNER, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Adolph Q. Sherrod, is a prisoner in the custody of the Colorado
Department of Corrections at the Kit Carson Correctional Center in Burlington,
Colorado. Mr. Sherrod has filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 1) (“the Application”) challenging the validity of
his conviction and sentence in El Paso County District Court case number 99CR205.
On January 17, 2014, Magistrate Judge Boyd N. Boland ordered Respondents to
file a Pre-Answer Response limited to raising 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 March 11, 2014, Respondents filed a Pre-Answer Response (ECF No.
11) arguing that the Application should be denied because the claims Mr. Sherrod
asserts are unexhausted and procedurally barred. On May 8, 2014, Mr. Sherrod filed a
Reply to the Respondents’ Pre-Answer Response (ECF No. 14).

The Court must construe the Application and other papers filed by Mr. Sherrod
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.
The following description of Mr. Sherrod’s criminal case is taken from the opinion
of the Colorado Court of Appeals affirming the trial court’s order denying a
postconviction motion:
Defendant was charged with crimes related to a domestic
violence incident in which he verbally and physically
assaulted his live-in girlfriend.
A jury convicted defendant of two counts of third degree
sexual assault and related crime of violence counts, two
counts of first degree assault and related crime of violence
counts, two counts of second degree assault and related
crime of violence counts, three counts of child abuse, and
one count of menacing.
The trial court merged the first degree assault convictions,
and also merged the second degree assault convictions into
the first degree assault convictions as lesser included
offenses. The court sentenced defendant to consecutive
sixteen-year to life terms for each third degree sexual
assault conviction, a consecutive thirty-two-year term for the
first degree assault conviction, a consecutive six-year term
for the menacing conviction, and concurrent one-year terms
for each child abuse conviction.
On direct appeal, a division of this court concluded that the
third degree sexual assault convictions should merge and
thus, remanded the case for resentencing. People v.
Sherrod, (Colo. App. No. 03CA1105, May 28, 2009) (not
published pursuant to C.A.R. 35(f)).
On remand, the trial court merged the third degree sexual
assault convictions and resentenced defendant to a term of
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sixteen years to life for one count of third degree sexual
assault. All other sentences remained the same.
People v. Sherrod, No. 10CA1778 (Colo. App. Mar. 15, 2012) (unpublished) (ECF No.
11-9 at 2-3).
Mr. Sherrod asserts three claims for relief in the Application. He first claims that
the trial court abused its sentencing discretion by imposing consecutive rather than
concurrent sentences for third degree sexual assault and first degree assault because
those offenses involved only one victim, occurred during the same criminal episode, and
are supported by identical evidence. Mr. Sherrod’s second claim is a double jeopardy
claim in which he contends that the convictions for third degree sexual assault and first
degree assault must merge. Mr. Sherrod alleges in claim three that he is entitled to the
benefits of amendatory legislation that mitigates the penalties for certain crimes when
relief is sought before finality has attached to the judgment of conviction. Mr. Sherrod
argues within claim three that the trial court failed to apply a heat of passion mitigator to
his conviction for first degree assault.
Respondents argue that Mr. Sherrod’s first and third claims are not federal
constitutional claims and that, even if those claims do raise federal constitutional issues,
the claims are procedurally defaulted. Respondents also argue that claim two is
procedurally defaulted. Respondents do not argue that the Application should be
dismissed as untimely.
The Court agrees that claims one and three in the Application are state law
claims that do not raise federal constitutional issues. Mr. Sherrod argues in support of
his first claim only that the trial court improperly imposed consecutive sentences for third

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degree sexual assault and first degree assault as a matter of Colorado state law. He
does not argue that his federal constitutional rights were violated because the trial court
imposed consecutive sentences for third degree sexual assault and first degree assault.
Similarly, Mr. Sherrod’s argument in support of claim three is premised solely on a
violation of Colorado state law.
“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Therefore, Mr.
Sherrod’s first and third claims in the Application may not be raised in a federal habeas
corpus action pursuant to § 2254 and must be dismissed. Furthermore, even if Mr.
Sherrod’s first and third claims in the Application could be construed liberally as federal
constitutional claims, the Court concludes that those claims, like claim two, are
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.
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In addition, 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 or that a somewhat similar state-law claim
was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citation omitted).
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).
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 that he has exhausted all
available state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
Construing Mr. Sherrod’s first claim for relief in the Application challenging his
consecutive sentences for third degree sexual assault and first degree assault as a
federal constitutional claim, the Court finds that the claim is not exhausted because Mr.
Sherrod did not raise the claim as a federal constitutional claim in state court. Mr.
Sherrod fails to identify any state court proceeding in which he claimed his consecutive
sentences for third degree sexual assault and first degree assault violated his federal
constitutional rights. Furthermore, based on the Court’s review of Mr. Sherrod’s
opening brief on appeal from the denial of his postconviction motion, it is apparent that
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Mr. Sherrod challenged his consecutive sentences only as a violation of Colorado state
law. (See ECF No. 11-8 at pp.3, 8, 12-15 ). Mr. Sherrod also challenged his
consecutive sentences on direct appeal, but he did not raise on direct appeal the same
argument he presents in claim one in the Application. (See ECF No. 11-3 at pp. 31-36.)
Furthermore, Mr. Sherrod’s challenge to his consecutive sentences on direct appeal
also was presented as a state law claim and did not raise any federal constitutional
issues. (See id.)
Mr. Sherrod is correct that, in the state court postconviction proceedings, the
Colorado Court of Appeals determined his claim challenging his consecutive sentences
for third degree sexual assault and first degree assault properly was raised pursuant to
Rule 35(a) of the Colorado Rules of Criminal Procedure and addressed the merits of
that claim. (See ECF No. 11-9 at pp.7-10.) However, the fact that the state court
addressed the merits of Mr. Sherrod’s state law arguments challenging his consecutive
sentences for third degree sexual assault and first degree assault does not mean that
he fairly presented the claim to the state courts as a federal constitutional claim. As
noted above, “[i]t is not enough that all the facts necessary to support the federal claim
were before the state courts.” Anderson, 459 U.S. at 6. Therefore, the Court finds that
any federal constitutional claim Mr. Sherrod may be asserting with respect to his
consecutive sentences for third degree sexual assault and first degree assault was not
fairly presented to the state courts.
Mr. Sherrod also fails to demonstrate that claim two in the Application, the double
jeopardy claim in which he contends his convictions for third degree sexual assault and
first degree assault must merge, was presented fairly to the state courts. Mr. Sherrod
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raised this double jeopardy claim as a federal constitutional claim in his opening brief to
the Colorado Court of Appeals in the postconviction proceedings. (See ECF No. 11-8 at
pp.3, 8-12.) However, pursuant to Rule 35(c)(3)(VII) of the Colorado Rules of Criminal
Procedure, the Colorado Court of Appeals refused to consider the double jeopardy
claim because the claim should have been raised on direct appeal. (See ECF No. 11-9
at pp.5-7.) Therefore, claim two also was not fairly presented to the Colorado courts.
Assuming claim three in the Application presents a federal constitutional claim,
that claim also is not exhausted. To the extent claim three in the Application is
premised on the trial court’s failure to apply a heat of passion mitigator to his conviction
for first degree assault, the Colorado Court of Appeals refused to consider the claim
because, like the double jeopardy claim, it should have been raised on direct appeal.
(See ECF No. 11-9 at pp.5-7.) To the extent claim three in the Application is premised
on amendatory legislation, that argument was raised by Mr. Sherrod in state court for
the first time in his postconviction petition for writ of certiorari. (See ECF No. 1 at pp.3940.) Because “[i]ssues not raised before the district court in a motion for postconviction
relief will not be considered on appeal of the denial of that motion,” DePineda v. Price,
915 P.2d 1278, 1280 (Colo. 1996), that portion of claim three also was not fairly
presented to the state courts. Thus, any portion of claim three that may raise a federal
constitutional claim also was not fairly presented to the Colorado courts.
Although Mr. Sherrod failed to exhaust state remedies for any of his claims, the
Court may not dismiss the Application for failure to exhaust state remedies if Mr.
Sherrod no longer has an adequate and effective state remedy available to him. See
Castille, 489 U.S. at 351. Respondents contend that Mr. Sherrod no longer has an
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adequate and effective state remedy available to him, and that the unexhausted claims
are procedurally defaulted, because Mr. Sherrod is barred from raising the unexhausted
claims in a new postconviction motion. The Court agrees because Rule 35(c)(3)(VII)
requires state courts in Colorado to deny any claim that could have been raised in a
prior appeal or postconviction proceeding. As a result, it is clear that Mr. Sherrod may
not return to state court to pursue his unexhausted claims.
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
cases.” Id.
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). Furthermore, even if the unexhausted claims have not actually been raised and
rejected by the state courts, the claims still are subject to an anticipatory procedural
default if it is clear that the claims would be rejected because of an independent and
adequate state procedural rule. See id. at 735 n.1.
The Court finds that Rule 35(c)(3)(VII) is independent because it relies on state
rather than federal law. The Court also finds that this procedural rule is adequate
because it is applied evenhandedly by Colorado courts. See, e.g., People v. Vondra,
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240 P.3d 493, 494 (Colo. App. 2010) (applying Crim P. Rule 35(c)(3)(VII) to reject
claims that could have been raised in a prior postconviction motion). In addition, Mr.
Sherrod presents no argument that Rule 35(c)(3)(VII) is not independent and adequate.
Therefore, Mr. Sherrod’s claims in the Application are procedurally defaulted and cannot
be considered unless Mr. Sherrod demonstrates either cause and prejudice or a
fundamental miscarriage of justice. Mr. Sherrod’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. Sherrod 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. Sherrod 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. Sherrod 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 claims will result in a fundamental miscarriage of
justice. Therefore, Mr. Sherrod’s claims in the Application are procedurally barred and
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must be dismissed.
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 for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1) is DENIED and the action is DISMISSED because
Applicant’s claims are unexhausted and 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.

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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 14th

day of

May

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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