Boetger v. Burnell et al

Filing 34

ORDER to Dismiss in Part and for Answer. Entered by Judge Philip A. Brimmer on 02/26/15. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-00675-PAB
MICHAEL A. BOETGER,
Applicant,
v.
ACTING WARDEN BURNELL, Buena Vista Correctional Facility, and
JOHN SUTHERS, the Attorney General of the State of Colorado,
Respondents.

ORDER TO DISMISS IN PART AND FOR ANSWER

Applicant, Michael Boetger, is in the custody of the Colorado Department of
Corrections (“CDOC”) at the Correctional Complex in Buena Vista, Colorado. He has
filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket
No. 1] challenging the validity of his conviction and sentence imposed in the District
Court of Teller County, Colorado. Mr. Boetger has been granted leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915.
On March 21, 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 [Docket No. 10] on
April 11, 2014. Applicant filed a Reply [Docket No. 19] on September 22, 2014, after
obtaining an extension of time.

The Court construes Mr. Boetger’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 act as an
advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons stated
below, the Court will dismiss the Application, in part.
I. BACKGROUND AND STATE COURT PROCEEDINGS
In People v. Boetger, 12CA688 (Colo. App. Dec. 26, 2013) (unpublished)
(Boetger II), the Colorado Court of Appeals summarized the procedural history of Teller
County District Court Case No. 06CR185 as follows:
After his first trial resulted in a hung jury, defendant pleaded guilty
to sexual assault on a child by one in a position of trust.
Before he was sentenced, defendant filed two letters requesting
that the court allow him to withdraw his guilty plea. The court treated the
letters as a Crim. P. 32(d) motion and appointed conflict-free counsel to
represent him.
Thereafter, defendant filed a supplemental Crim. P. 32(d) motion,
arguing that his plea was not made knowingly and voluntarily because (1)
plea counsel told him he would not endorse an expert witness or obtain
the transcript from the first trial as he could not afford them; (2) plea
counsel assured him that he would be released from prison in six to eight
years if he completed sex offender classes; and (3) he was not advised
that he could be reincarcerated for life if his parole was revoked.
After holding an evidentiary hearing, the court denied the Crim. P.
32(d) motion, finding that defendant did not establish that there was a fair
and just reason to withdraw the guilty plea.
The court then sentenced defendant to eight years to life in the
custody of the Department of Corrections (DOC).
On direct appeal, a division of this court upheld the district court’s
order denying defendant’s Crim. P. 32(d) motion. See People v. Boetger,

2

(Colo. App. No. 08CA2011, Aug. 26, 2010) (not published pursuant to
C.A.R. 35(f)) (Boetger I).
In February 2012, defendant filed a pro se Crim. P. 35(c) motion,
seeking to set aside his guilty plea. He argued that his plea was not made
knowingly and voluntarily because:
• defense counsel were ineffective when they violated
various rules of professional conduct and failed to:
prepare for his second trial by: obtaining a
transcript of the first trial, endorsing
exculpatory witnesses, and obtaining
exculpatory evidence; and
# advise him that very few sex offenders who
had been sentenced to an indeterminate
sentence had been paroled;
#

• the district court failed to advise him that:
he likely would not be paroled after he served
the minimum term of his sentence;
# he was giving up his Fifth Amendment right
against self-incrimination for the rest of his life;
# he could not have contact with any family
member or friend under the age of 18;
# he would have to register as a sex offender;
and
# the DOC did not have the funding to provide
treatment for all sex offenders;
#

• when he entered the plea, he reasonably believed that the
minimum term of the sentence had a “very real meaning and
would be a real force in his release from prison,” but he has
since learned that it is “worthless and devoid of any effective
significance or influence”; and
• the prosecutor enticed him into taking the plea by reducing
the offer of the minimum term of the sentence from twelve to
eight years while knowing it was meaningless because the
DOC had not been releasing sex offenders on parole.
Defendant also argued that (1) the district court abused its
discretion when it denied his Crim. P. 32(d) motion; (2) Crim. P. 32(d)
counsel was ineffective when she failed to: (a) argue that he agreed to the
3

plea because defense counsel were not prepared for trial; and (b) advise
him to plead the words “legal innocence”; (3) one of his defense counsel
committed perjury during the Crim. P. 32(d) hearing when he testified that
he hired a representative to attend each day of his first trial and report to
him when there was no such representative; and (4) there was cumulative
error based on (a) defense counsel’s failure to prepare for trial, (b) Crim.
P. 32(d) counsel’s ineffectiveness, (c) his belief that he would only serve
six to eight years, and (d) defense counsel’s perjury during the Crim. P.
32(d) hearing.
The district court denied the Crim. P. 35(c) motion, finding that the
issues in the motion had been “previously raised and litigated” and had
been “considered and rejected” in the district court and in Boetger I.
Docket No. 10-8 at 2-5.
The Colorado Court of Appeals affirmed the district court’s order denying postconviction relief, determining that all of Applicant’s claims, except for his ineffective
assistance of Crim. P. 32(d) counsel claim, were procedurally barred, and that the
ineffective assistance claim failed as a matter of law because applicant “failed to
sufficiently allege that there was prejudice.” Id. at 7-11. Applicant thereafter filed a
petition for certiorari review in the Colorado Supreme Court, which was denied on
November 3, 2014. Docket No. 22-1.
On March 4, 2014, Mr. Boetger filed his federal application under 28 U.S.C.
§ 2254 asserting 12 claims for relief. Docket No. 1.
In the Pre-Answer Response, Respondents concede that the Application is
timely. Docket No. 10 at 6-8. Respondents argue, however, that claims 2, 5, 9, 10, and
11 are not cognizable on federal habeas review. Id. at 14, 29-30. Respondents
maintain that the remaining federal claims are procedurally barred. Id. at 12, 15-29, 3032.

4

II. CLAIMS NOT COGNIZABLE UNDER 28 U.S.C. § 2254
Applicant asserts in claims 2, 5, 9, 10, and 11 that:
•

“The courts abused their discretion in not allowing the defendant to
withdraw his plea” (claim 2), Docket No. 1 at 10;

•

“The courts are refusing to consider the defendant’s claim of
ineffective assistance saying it was already litigated. They deny
evidence and argument which arises from this judgment” (claim 5),
id. at 13.

•

“The courts considering the defendant’s postconviction claims have
ignored issues expounded in claims 6-8” (claim 9), id. at 15.

•

“The defendant’s interpretation of the plea is reasonable and
therefore credence and practical consequence must be given to it,
it must be accepted.” (Claim 10), Docket No. 10-11 at 1.

•

“Courts denied defendant the right to evidence favorable to his
claim of ineffective assistance of counsel, as well as possible other
uses in defense.” (Claim 11), id.

Federal habeas review is limited to claims that a state prisoner’s custody violates
the United States Constitution or other federal law. 28 U.S.C. § 2254(a). The statute
does not provide a remedy for errors of state law. See Swarthout v. Cooke, 131 S.Ct.
859, 861 (2011) (per curiam); see also Estelle v. Mcguire, 502 U.S. 62, 67 (1991)
(habeas corpus does not lie to correct errors of state law). Furthermore, alleged errors
in the State’s post-conviction remedy are not grounds for § 2254 review. See Sellers v.
Ward, 135 F.3d 1333, 1339 (10th Cir. 1998); see also Pennsylvania v. Finley, 481 U.S.
551, 557 (1987) (recognizing that the Constitution does not require the states to grant
post-conviction review).
The Court finds that the issues raised in claims 2, 5, 9, 10, and 11 present state
law issues that do not invoke the federal habeas jurisdiction of this Court. Alternatively,
5

to the extent the allegations in claims 2 and 11 form part of Applicant’s involuntary plea
claim, the allegations will be construed in conjunction with claim 1 and not as separate
claims for relief. Claims 2, 5, 9, 10, and 11 will be dismissed.
III. EXHAUSTION AND PROCEDURAL DEFAULT
Respondents next argue that Mr. Boetger’s federal claims are procedurally
barred. Docket No. 10 at 12.
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, 843 (1999); Dever v. Kansas 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). 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 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.

6

4, 6 (1982) (per curiam). 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).
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).
A. Claim 1
In claim 1, Mr. Boetger asserts that his “plea was involuntary and unknowing due
to his attorney’s false representations and assurances.” According to Applicant, his
“attorney misrepresented the consequences of the plea, he himself was ignorant of

7

consequences, and [counsel] assured [Applicant] that upon com pletion of a few
‘classes’ he would be released in 6-8 years.” Docket No. 1 at 10.
Respondents concede that Mr. Boetger presented this claim as a federal
constitutional issue to the Colorado Court of Appeals in the Rule 32(d) proceeding.
Docket No. 10 at 13; see also Docket No. 10-2 at 35, 45. Respondents arg ue,
however, that because Applicant failed to raise the issue as a federal claim in his
petition for certiorari review to the Colorado Supreme Court, the claim is not exhausted.
Docket No. 10 at 13.
A federal habeas claim must first 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 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.

8

Four courts of appeal 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 §
2254(b)’s 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). Absent Tenth Circuit authority specifically holding otherwise,
the Court agrees with the reasoning of the other circuit courts and finds that, pursuant
to Colo. App. R. 51.1, 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-02681BNB, 2011 WL 805787 (D. Colo. Feb. 28, 2011).
Because the Colorado Court of Appeals addressed the merits of claim 1 in
Boetger I, see Docket No. 10-3 at 5-6, the Court rejects Respondents’ exhaustion
defense and finds that the claim was exhausted properly in the state courts.
B. Claims 3, 6, 7 and 8
In claims 3, 6, 7, and 8, Mr. Boetger asserts that:
•

he was forced to plead guilty because his trial counsel was not
prepared for trial (Claim 3);

•

the “court did not advise of important direct consequence of plea
hearing” – specifically, of the unlikelihood that he would ever be
paroled; and, that “[t]he court did not advise the defendant that he
would be required to give up his rights against self-incrimination
and all other due process rights for life” (Claim 6);

•

“The prosecutor’s conduct and practice in the plea bargaining
process was unethical, unfair, and deceitful thus making it and the
plea unconstitutional” (Claim 7); and,
9

•

“The court not only accepted the aforementioned plea (claim #7)
but aided the prosecutor in the deception” (Claim 8).

Docket No. 1 at 10-15.
Applicant raised the claims in his state post-conviction proceeding. However, the
Colorado Court of Appeals rejected them as successive because Applicant raised, or
could have raised, the issues in the Rule 32(d) proceeding. Boetger II, Docket No. 10-8
at 7-9 (citing Colo. Crim. P. Rule 35(c)(3)(VI) and (VII) (stating that claims that were or
could have been raised on direct appeal or in an earlier post-conviction proceeding are
barred as successive)).
Any claims that were raised and addressed in the Rule 32(d) proceeding are
exhausted and are not subject to the f ederal procedural default rule. See Cone v. Bell,
556 U.S. 449, 467 (2009) (“A claim is procedurally barred when it has not been fairly
presented to the state courts for their initial consideration – not when the claim has
been presented more than once.”). However, claims that were not raised, but should
have been raised, in the Rule 32(d) proceeding are procedurally defaulted, absent a
showing of cause and prejudice or actual innocence. See Colo. Crim. P. Rule
35(c)(3)(VII); Welch v. Milyard, No. 11-1214, 436 F. App’x 861, 865-66 (10th Cir. Aug.
18, 2011) (unpublished) (concluding that claim barred from state court review under
Colo. Crim. P. Rule 35(c)(3)(VII) was procedurally defaulted on federal habeas review).
1. Claim 3
Respondents contend that claim 3 was not properly presented to the state courts
in the Rule 32 proceeding because Applicant did not invoke Strickland v. Washington,

10

466 U.S. 668 (1984), in asserting that counsel’s substandard performance forced him to
plead guilty. Docket No. 10 at 19.
In Boetger I, the Colorado Court of Appeals determined:
The record also supports the trial court’s determination that
defendant did not prove that his attorneys had performed ineffectively.
Although the court expressed concern about whether plea counsel had
thoroughly prepared for trial, defendant did not argue that he agreed to
the plea bargain and entered his plea because he thought his counsel
was not prepared for trial. Instead, he argued that his counsel gave him
erroneous advice about the likely term of incarceration. Moreover, the
court’s ultimate conclusion that defendant had not demonstrated
ineffective assistance of counsel is supported by the transcript of the
providency hearing which reflects that defendant twice expressed
satisfaction with the performance of his attorneys. These unqualified
assurances were a proper basis for the court to reject defendant’s
subsequent claim that he was coerced to plead guilty because his counsel
was unprepared for trial.
Docket No. 10-3 at 5-6 (state case law citations omitted).
Because the state appellate court addressed the m erits of the allegations raised
in claim 3, the Court rejects Respondents’ exhaustion defense and finds that the claim
was exhausted properly in the state courts.
2. Claim 6
For claim 6, Respondents concede that Applicant raised an alleg ation of trial
court error to the state appellate court – based on a f ailure to adequately inform
Applicant of the consequences of his plea – but argue that he failed to present any of
the other issues asserted as part of claim 6. Docket No. 10 at 24-25.
In his Opening Brief in support of his appeal in the Rule 32 proceeding, Applicant
challenged the trial court’s failure to adequately inform him “that, pursuant to the plea
agreement, he was agreeing to a life sentence of incarceration with only the possibility
11

of parole but no guarantee of release” and “to adequately explain the meaning and
nature of an ‘indeterminate sentence,’’’ as well as the court’s alleged incorrect advice
“that the Department of Corrections sets the upper length of the sentence.” Docket No.
10-2 at 42-43. The Court finds that these allegations are exhausted for purposes of
resolving Mr. Boetger’s federal habeas application.
The Court further finds, however, that Applicant failed to fairly present, in the
Rule 32(d) proceeding, his allegations that the trial court failed to advise him that he
would “be required to give up his rights against self-incrimination and all other due
process rights for life.” Docket No. 1 at 5. Although he raised the allegations in his
state post-conviction proceeding, the Colorado Court of Appeals rejected them on the
ground that they should have been raised in the Rule 32(d) proceeding. As such, these
allegations were procedurally defaulted in the state courts pursuant to an adeq uate and
independent state rule. See Colo. Crim. P. Rule 35(c)(3)(VII); Welch, 436 F. App’x at
865-66; see also Burton v. Zavaras, No. 09-1094, 340 F. App’x 454-55 (10th Cir. Aug.
4, 2009) (unpublished) (concluding that federal habeas claim was procedurally
defaulted in the state courts pursuant to Colo. Crim. P. Rule 35(c)(3)(VII)). Applicant
therefore must meet the cause and prejudice standard or f undamental miscarriage of
justice exception to excuse his procedural default. See Coleman, 501 U.S. at 750.
Mr. Boetger alleges in the Reply brief that his procedural default was caused by
the ineffective assistance of appellate counsel in the Rule 32(d) proceeding. Docket
No. 19 at 8-13.
Appellate counsel’s failure to raise a meritorious issue on direct appeal may
constitute cause to excuse a procedural default. See Edwards v. Carpenter, 529 U.S.
12

446, 451 (2000); Hammon v. Ward, 466 F.3d 919, 925 (10th Cir. 2006). However, the
claim that appellate counsel was constitutionally ineffective must itself be exhausted
properly in the state courts. Edwards, 529 U.S. at 453. As discussed in claim 4,
Applicant procedurally defaulted his ineffective assistance-of-appellate-counsel claim in
the state courts. See Section III.C., infra. He thus cannot rely on the ineffective
assistance of appellate counsel to excuse his procedural default of the unexhausted
allegations in claim 6. See id.; see also Livingston v. Kansas, No. 10-3076, 407 F.
App’x 267, 273 (10th Cir. Nov. 2, 2010) (unpublished). Moreover, Mr. Boetger makes
no showing of actual innocence.
Accordingly, Applicant’s allegations in claim 6 that the trial court failed to advise
him that he would “be required to give up his rights against self-incrimination and all
other due process rights for life” will be dismissed as procedurally barred.
3. Claim 7
In claim 7, Mr. Boetger asserts “[t]he prosecutor’s conduct and practice in the
plea bargaining process was unethical, unfair, and deceitful thus making it and the plea
unconstitutional.” Docket No. 1 at 14. He further alleges that “[t]he prosecutor
knowingly misled and deceived the defendant, unduly influencing him into the
acceptance of misrepresented plea.” Id. at 14-15.
Applicant did not allege prosecutorial misconduct in the Rule 32(d) proceeding.
See Docket No. 10-2. Instead, he first attacked the prosecutor’s conduct in the postconviction proceeding. Docket No. 10-7 at 23-41. However, the Colorado Court of
Appeals in Boetger II refused to consider the merits because the claim could have been

13

raised in the Crim. P. 32(d) proceeding. Docket No. 10-8 at 8-9. The Court therefore
finds that the allegations in claim 7 were procedurally defaulted in the state courts
pursuant to an adequate and independent state rule. See Colo. Crim. P. Rule
35(c)(3)(VII); Welch, 436 F. App’x at 865-66; Burton, 340 F. App’x at 455. Applicant
therefore must meet the cause and prejudice standard or f undamental miscarriage of
justice exception to excuse his procedural default. See Coleman, 501 U.S. at 750.
Again, the alleged ineffective assistance of appellate counsel in the Rule 32(d)
proceeding cannot excuse Applicant’s procedural default of claim 7 because Applicant
also procedurally defaulted the ineffective assistance-of-appellate-counsel claim (claim
4) in the state courts. See Section III.C., infra. Mr. Boetger does not allege any other
external cause for his procedural default or make a colorable showing of actual
innocence.
Claim 7 will be dismissed as procedurally barred.
4. Claim 8
For claim 8, Applicant asserts that “[t]he court not only accepted the
aforementioned plea (claim #7) but aided the prosecution in the deception.” Docket No.
1 at 15.
Upon careful review of the Application and the arguments raised by Applicant in
his state appellate filings, the Court finds that this claim is substantially duplicative of
the allegations in claim 6. Accordingly, the claim is exhausted to the extent Applicant
raises the same allegations that the Court determined were exhausted in conjunction
with claim 6. Any additional allegations are not exhausted and are procedurally

14

defaulted pursuant to Colo. Crim. P. 35(c)(3)(VII) or are subject to an anticipatory
procedural bar because any attempt to fairly present the claim in state court as a
federal question would be subject to dismissal as time barred, under Colo. Rev. Stat.
§ 16-5-402 (2014) (imposing a three-year limitation period for post conviction claims
challenging non-class 1 felonies), successive under Colo. Crim. P. Rule 35(c)(3)(VII), or
an abuse of process, see People v. Rodriguez, 914 P.2d 230. 254-55 (Colo. 1996)
(issues available for review on direct appeal that address the same issue on some
recently contrived constitutional theory and are not well-founded constitute an abuse of
process).
Because Mr. Boetger has failed to satisfy the cause and prejudice standard, or
the fundamental miscarriage of justice exception, the allegations in claim 8 that are not
duplicative of claim 6 will be dismissed as procedurally barred.
C. Claim 4
In claim 4, Applicant asserts that his Crim. P. 32(d) counsel rendered ineffective
assistance, as did appellate counsel. Specifically, Mr. Boetger asserts that “[t]hey
never argued adequately defendant’s innocence. They either did not litigate ineffective
assistance of counsel at all or knowingly.” Docket No. 1 at 12.
In his state post-conviction proceeding, Applicant contended that Crim. P. 32(d)
counsel “failed to advise [him] to voice his innocence as a reason for withdrawing his
plea during the 32(d) hearing. Docket No. 10-6 at 63. He further maintained that Crim.
P.32(d) counsel “and appellate counsel would not argue [trial counsel’s lack of trial
preparation] as the primary reason for his accepting the plea in the first place, despite
his urging.” Id. at 30-31.
15

Respondents concede that the allegations concerning Rule 32(d) counsel were
fairly presented to the Colorado Court of Appeals. As such, the Court finds that claim 4
is exhausted with respect to the alleged ineffective assistance of Rule 32(d) counsel (in
the state district court).
With regard to the allegations in claim 4 concerning the effectiveness of
appellate counsel in the Rule 32(d) proceeding, Respondents argue that Applicant has
procedurally defaulted that claim in the state courts. Docket No. 10 at 28.
The Colorado Court of Appeals refused to consider the claim in Boetger II
because it was raised for the first time in Applicant’s appeal and was not presented to
the trial court in the state post-conviction motion. Docket No. 10-8 at 6. See People v.
Osorio, 170 P.3d 796, 801 (Colo. App. 2007) (“Because def endant did not raise this
particular issue in his Crim. P. 35(c) motion, we decline to consider it.”); People v.
Zuniga, 80 P.3d 965, 971 (Colo. App. 2003) (same); People v. Goldman, 923 P. 2d
374, 375 (Colo. App. 1996) (same); People v. Hampton, 857 P.2d 441, 445-46 (Colo.
App. 1992) (same).
The Court agrees that Mr. Boetger has procedurally defaulted the issue of
appellate counsel’s effectiveness in the Rule 32(d) proceeding. Further, Applicant has
failed to meet the cause and prejudice standard or f undamental miscarriage of justice

16

exception to excuse the procedural bar. 1 As such, the ineffective assistance of
appellate counsel allegations in claim 4 will be dismissed.
D. Claim 12
Claim twelve asserts “[t]he cumulative effect of all the combined errors at
minimum warrants relief.” Docket No. 1 at 16. In his state post-conviction proceeding,
Applicant asserted “[t]hat when there are many errors that, in and of themselves, to not
warrant relief, the cumulative impact of such errors can result in denial and violation of
constitutional rights.” Docket No. 10-7 at 53. Applicant then summarized in an outline
all the claims previously raised in his opening brief. Id. at 54-58.
Claim 12 is exhausted only to the extent that the constituent claims are not
procedurally defaulted. See Hughes v. Dretke, 412 F.3d 582, 597 (5th Cir. 2005)
(“Meritless claims or claims that are not prejudicial [or claims that are procedurally
barred] cannot be cumulated.” (quoting Westley v. Johnson, 83 F.3d 714, 726 (5th Cir.
1996)); Ray v. Simmons, No. 04-3290, 125 F. App’x 943, 947 (10th Cir. Feb. 7, 2005)
(unpublished).
The following claims are not procedurally defaulted and present federal
constitutional issues: Claim 1; Claim 3; part of Claim 6 (asserting that the trial court
failed to adequately inform Applicant that he was agreeing to a life sentence and
1

The Court notes that to the extent the Application can be interpreted to assert a
claim that counsel in the Rule 32(d) proceeding was ineffective for failing to raise the
issue of plea counsel’s alleged perjury during the Crim. P. 32(d) hearing, the claim is
also procedurally barred. The Colorado Court of Appeals refused to consider the issue
in Boetger II because it was raised for the first time on appeal in the state postconviction proceeding. Docket No. 10-8 at 6. Mr. Boetger has not met the cause and
prejudice standard or the fundamental miscarriage of justice exception to excuse his
procedural default.
17

explain the meaning and nature of an indeterminate sentence; and, the trial court
incorrectly advised Applicant that the CDOC set the upper length of the sentence; and
part of Claim 4 (asserting that Rule 32(d) counsel failed to advise applicant to assert
innocence as a reason for withdrawing his plea, and to assert trial counsel’s lack of trial
preparation as the primary reason for accepting the plea). Accordingly, the Court finds
that Applicant has exhausted a claim of cumulative error with respect to the above
claims and allegations.
IV. CONCLUSION
For the reasons discussed above, it is
ORDERED that claims 2, 5, 9, 10, and 11 of the Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 1] f iled pro se by Michael A. Boetger
on March 4, 2014 are dismissed without prejudice because the claims fail to raise
federal issues cognizable under 28 U.S.C. § 2254. Alternatively, to the extent the
allegations in claims 2 and 11 form part of the basis for claim 1, the allegations will be
construed in conjunction with claim 1 and not as separate claims for relief. It is further
ORDERED that part of claim 6 (allegations that the trial court failed to advise
Applicant that he would “be required to give up his rights against self-incrimination and
all other due process rights for life”), claim 7, claim 8 (to the extent the allegations do
not duplicate claim 6), part of claim 4 (ineffective assistance of appellate counsel in the
Rule 32(d) proceeding), and part of claim 12 (allegations of cumulative error that are
based on the procedurally defaulted allegations in part of claim 6, claim 7, claim 8 and
part of claim 4) are dismissed with prejudice as procedurally defaulted. It is further

18

ORDERED that Respondents shall file an Answer to claims 1, 3, part of claim 6
(allegations that, pursuant to the plea agreement, Applicant was agreeing to a life
sentence of incarceration with only the possibility of parole but no guarantee of release
and “to adequately explain the meaning and nature of an ‘indeterminate sentence,’’’ as
well as the court’s alleged incorrect advice “that the Department of Corrections sets the
upper length of the sentence”), part of claim 4 (allegations that Rule 32(d) counsel was
ineffective), and part of claim 12 (cumulative error concerning the exhausted allegations
of claims 1, 3, 4, and 6) within thirty days of this Order. It is further
ORDERED that Applicant may file a Reply within thirty days after Respondents
file an Answer.

DATED February 26, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

19