Ashley v. Travis Trani, et al

Filing 16

ORDER Drawing Case. This shall be drawn to a presiding judge and, if appropriate, to a magistrate judge, by Magistrate Judge Boyd N. Boland on 04/09/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00239-BNB

MARK R. ASHLEY,
Applicant,
v.
TRAVIS TRANI (Warden), and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DRAWING CASE

Applicant, Mark R. Ashley, has filed an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 4) challenging the validity of his criminal
conviction in case 02CR1772 in the Denver District Court. He has been granted leave
to proceed pursuant to 28 U.S.C. § 1915.
On February 26, 2014, Magistrate Judge Boyd N. Boland directed Respondents
to file a pre-answer response addressing the affirmative defenses of timeliness under
28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. §
2254(b)(1)(A). Respondents submitted a pre-answer response [ECF No. 13] on March
17, 2013. Applicant did not file a reply.
I. Background and State Court Proceedings
On February 28, 2003, Mr. Ashley was convicted by a jury in case number
02CR1772 of sexual assault, robbery, and two counts of second degree kidnapping.
[ECF No. 13-1 at 12]. He was sentenced to forty-eight years to life with the Colorado
Department of Corrections. [Id.].

Mr. Ashley filed a direct appeal and the Colorado Court of Appeals affirmed in
part, vacated in part, and remanded with directions to vacate one count of second
degree kidnapping. [ECF No. 13-5 at 2, 14-15, 21]. On July 10, 2006, the Colorado
Supreme Court denied Applicant’s petition for certiorari review. [ECF No. 13-7].
In June 2007, Mr. Ashley filed a Rule 35(c) motion seeking postconviction relief,
and in July 2009, Mr. Ashely’s appointed postconviction counsel filed a supplemental
Rule 35(c) motion. [ECF No. 13-1 at 8-9; 13-11 at 12]. On May 23, 2013, the Colorado
Court of Appeals affirmed the state district court’s denial of the petition for
postconviction relief. [ECF No. 13-1 at 7; 13-11]. The Colorado Supreme Court denied
certiorari review on January 13, 2014. [ECF No. 13-13].
Mr. Ashley initiated this action on January 23, 2014 by filing a letter. [ECF No. 1].
On February 24, 2014, he filed an Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254 [ECF No. 4] asserting the following three claims for relief:
(1) ineffective assistance of counsel based on (a) counsel’s failure
to consult and communicate with Applicant; (b) counsel’s conduct
during trial as being the equivalent of a guilty plea; and (c)
counsel’s failure to more thoroughly investigate and challenge the
DNA evidence;
(2) due process violation because the victim’s out-of-court
identification of Applicant was based on an impermissibly
suggestive photo array; and
(3) violation of his right to a jury trial as recognized in Apprendi v.
New Jersey, 530 U.S. 466 (2000) because the trial court improperly
aggravated Mr. Ashley’s sentence based on facts not found by the
jury.
[ECF No. 4 at 11-14].

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II. Timeliness of Application
Respondents do not challenge the timeliness of the Application under the
one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). [See ECF No. 13 at 3-5].
III. Exhaustion of State Remedies and Procedural Default
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. 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).
Furthermore, the “substance of a federal habeas corpus claim” must have been
presented to the state courts in order to satisfy the fair presentation requirement. Picard
v. Connor, 404 U.S. 270, 278 (1971); see also Nichols v. Sullivan, 867 F.2d 1250, 1252
(10th Cir. 1989). Although fair presentation does not require a habeas corpus petitioner
to cite “book and verse on the federal constitution,” Picard, 404 U.S. at 278 (internal
quotation marks omitted), “[i]t is not enough that all the facts necessary to support the
federal claim were before the state courts.” Anderson v. Harless, 459 U.S. 4, 6 (1982)
(per curiam). A state prisoner bringing a federal habeas corpus action bears the burden
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of showing that he has exhausted all available state remedies. See Miranda v. Cooper,
967 F.2d 392, 398 (10th Cir. 1992).
If a habeas petitioner “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); Anderson v.
Sirmons, 476 F.3d 1131, 1139-40 n.7 (10th Cir. 2007) (applying anticipatory procedural
bar). A claim that has been procedurally defaulted in the state courts on an
independent and adequate state procedural ground is precluded from federal habeas
review, unless the prisoner 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 v.
Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007). A petitioner’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).
Here, Respondents concede that Mr. Ashely exhausted all three of his claims by
presenting each claim to the Colorado Court of Appeals and Colorado Supreme Court in
his direct appeal and postconviction proceedings. [See ECF No. 13 at 6-7]. The Court
thus finds that Mr. Ashley exhausted state court remedies for his claims. Accordingly, it
is
ORDERED that this case shall be drawn to a presiding judge and, if appropriate,
to a magistrate judge pursuant to D.C.COLO.LCivR 40.1(a).
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DATED April 9, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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