Garcia v. Trani et al
Filing
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ORDER STAYING CASE by Magistrate Judge Boyd N. Boland on 6/19/2014. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01041-BNB
ANTHONY LAWRENCE GARCIA,
Applicant,
v.
TRAVIS TRANI, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER STAYING CASE
Applicant, Anthony Lawrence Garcia, is in the custody of the Colorado
Department of Corrections (CDOC) at the Sterling Correctional Facility. Mr. Garcia has
filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No.
1) challenging his convictions in the District Court for the City and County of Denver,
Colorado. Mr. Garcia has been granted leave to proceed in forma pauperis, 28 U.S.C.
§ 1915.
Mr. Garcia was convicted by a jury in October 2009 in Denver District Court Case
No. 09CR801 of second degree assault, felony false imprisonment, third degree
assault, and related misdemeanor offenses. The trial court adjudicated him an habitual
criminal and imposed an aggregate prison sentence of 32 years. Mr. Garcia initiated
this action on April 11, 2014. He asserts five claims. The parties agree that Applicant
has not exhausted state court remedies for his fourth and fifth claims--asserting the
ineffective assistance of trial and appellate counsel (IAC claims). (ECF No. 9, at 17; No.
10).
I. Applicable Legal Standards
Mr. Garcia’s pro se pleadings are afforded a liberal construction. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Although the Court does not act as an advocate for a pro se litigant, see Hall,
935 F.2d at 1110, because of the procedural complexities inherent in habeas corpus
proceedings, some advisement to Applicant is warranted in this action.
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.
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
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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).
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).
Even if state remedies properly have been exhausted as to one or more of the claims
presented, a habeas corpus application is subject to dismissal as a mixed petition
unless state court remedies have been exhausted for all of the claims raised. See Rose
v. Lundy, 455 U.S. 509, 522 (1982); Harris v. Champion, 48 F.3d 1127, 1133 (10th Cir.
1995).
II. Analysis
Because Mr. Garcia is asserting both exhausted and unexhausted claims, the
Court ordered him to show cause why the § 2254 Application should not be denied as a
mixed petition. See Rose, 455 U.S. at 522; Harris, 48 F.3d at 1133. In the show cause
order (ECF No. 11), the Court advised:
In order to avoid dismissal of a habeas application as a mixed petition, an
applicant may elect to dismiss any unexhausted claims and pursue only
those claims for which state remedies already have been exhausted. If an
applicant wishes to pursue all of his claims in federal court the habeas
action will be dismissed without prejudice so that the applicant may
exhaust state remedies. He then may file a new application for a writ of
habeas corpus once all of his claims are exhausted.
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A decision to dismiss unexhausted claims and pursue immediately only
exhausted claims likely will bar an applicant from seeking review of the
unexhausted claims in a second or successive application. See 28 U.S.C.
§ 2244(b). Alternatively, if an applicant elects to dismiss the entire action
and return to state court to exhaust the unexhausted claims before
seeking relief in federal court, the one-year limitation period in § 2244(d)
will be applied to any new federal court action the applicant seeks to file.
Furthermore, the time during which a 28 U.S.C. § 2254 application is
pending in this Court does not toll the one-year limitation period in §
2244(d). See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding
that “an application for federal habeas corpus review is not an ‘application
for State post-conviction or other collateral review’ within the meaning of
28 U.S.C. § 2244(d)(2)” and “therefore did not toll the limitation period
during the pendency of [an applicant’s] first federal habeas petition”). The
fact that the instant action currently is timely under § 2244(d) does not
mean that any future action filed by Mr. Garcia will be timely.
(ECF No. 11, at 3-4).
A. Procedural History of Applicant’s Claims in the State Courts
The portions of the state court record provided by Respondents show that the
Colorado Supreme Court denied certiorari review in Applicant’s direct appeal
proceeding on April 29, 2013. (ECF No. 9-3). Applicant’s conviction became final
ninety days later, on July 29, 2013,1 when the time for filing a petition for certiorari
review with the United States Supreme Court expired. See Sup. Ct. R. 13(1); Locke v.
Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). The AEDPA one-year limitation period
applicable to Mr. Garcia’s federal application began to run on July 30, 2013, and will
expire one July 30, 2014, unless statutory tolling applies. See 28 U.S.C. § 2244(d)(1)(A)
(one-year period begins to run from the date the criminal conviction becomes final);
United States v. Hurst, 322 F.3d 1256, 1260-62 (10th Cir. 2003) (concluding that one-
1
Because the ninety-day period for filing a petition for certiorari review with the United States
Supreme Court ended on Sunday, July 28, 2013, Mr. Garcia’s conviction became final on Monday, July
29, 2013. See Fed. R. Civ. P. 6(a)(1)(C).
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year limitation period commences the day after expiration of the time for seeking review;
and, anniversary method applies to calculation of one-year period).
On September 24, 2012, while Mr. Garcia’s direct appeal was pending, he filed a
motion for post-conviction relief pursuant to Colo. R. Crim. P. 35(a) and (c)(1) (“the first
Rule 35 motion”). (ECF No. 9-1, at 13). The Colorado Court of Appeals decided
Applicant’s direct appeal on October 4, 2012. See People v. Garcia, No. 10CA0736
(Colo. App. Oct. 4, 2012) (unpublished decision). (ECF No. 9-5). Six days later, on
October 10, 2012, the state post-conviction court denied the first Rule 35 motion for lack
of subject matter jurisdiction. (ECF No. 1, at 8). Applicant, through counsel, filed an
appeal of the district court’s October 10, 2012 order on November 8, 2012 (ECF Nos. 91, at 12; 9-2), which remains pending before the Colorado Court of Appeals in People v.
Anthony Garcia, Case No. 12CA2290. (ECF No. 9, at 3). Applicant’s subsequent pro
se post-conviction motion (raising the IAC claims), filed on April 4, 2014, was denied by
the state post-conviction court for lack of subject matter jurisdiction on April 14, 2014,
based on the pending appeal. (ECF No. 12, at 10). As such, Applicant has not been
able to exhaust his IAC claims.
The AEDPA time clock is tolled by a properly filed motion for state postconviction relief. See 28 U.S.C. § 2244(d)(2); Habteselassie v. Novak, 209 F.3d 1208
(10th Cir. 2000) (properly filed motion for state post-conviction relief tolls the statute of
limitations while motion is pending). Generally, a post-conviction motion filed while a
direct appeal is pending does not toll the limitations period because the state district
court lacked jurisdiction at that time. See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (state
application for post-conviction relief is properly filed when its delivery and acceptance
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are in accordance with applicable state laws and rules governing filings); Larry v.
Dretke, 361 F.3d 890, 894 (5th Cir. 2004) (postconviction motion not properly filed
where state court lacked jurisdiction over it because of applicant’s pending appeal).
Here, however, Mr. Garcia has argued on appeal that the trial court erred in dismissing
his first Rule 35 motion for lack of jurisdiction where the motion sought relief based on a
change in the law that affected his sentence, as permitted by Colo. R. Crim. P.
35(c)(1).2 (ECF No. 9-2, at 6). If the state appellate court agrees with Applicant, but
does not issue a ruling until after the one-year limitation period expires on July 30, 2014,
the pendency of the state post-conviction proceeding will have tolled the one-year
limitations period. However, tolling may not apply if the Colorado Court of Appeals
determines, after July 30, 2014, that the first state post-conviction motion was filed
improperly because Mr. Garcia’s direct appeal was pending.
B. Stay of Proceedings
The federal habeas court may sua sponte stay a § 2254 Application where the
applicant’s return to federal court will be barred by the one-year limitation period. See
Akins v. Kenney, 410 F.3d 451, 456 (8th Cir. 2005) (reversing dismissal of mixed
petition and remanding case to district court to determine whether a stay was warranted
pending exhaustion of state court remedies, citing Rhines v. Weber, 544 U.S. 269, 275-
2
Colo. R. Crim. P. 35(c)(1) states:
If, prior to filing for relief pursuant to this paragraph (1), a person has sought appeal of a
conviction within the time prescribed therefor, and if judgment on that conviction has not
then been affirmed upon appeal, that person may file an application for postconviction
review upon the ground that there has been a significant change in the law, applied to the
applicant’s conviction or sentence, allowing in the interests of justice retroactive
application of the changed legal standard.
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76 (2005)). However, because staying a federal habeas petition frustrates the AEDPA's
objective of encouraging finality by allowing a petitioner to delay the resolution of the
federal proceedings and undermines AEDPA's goal of streamlining federal habeas
proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court
prior to filing his federal petition, “stay and abeyance should be available only in [the
following] limited circumstances”: (1) the district court determines that there was good
cause for the petitioner’s failure to exhaust his claims first in the state court; (2) the
unexhausted claims are not “plainly meritless”; and, (3) the petitioner has not engaged
in abusive litigation tactics or intentional delay. Rhines, 544 U.S. at 277-78.
Mr. Garcia states in his June 17, 2014 Response to Show Cause Order (ECF
No. 12), that on March 31, 2014, he filed a request with the state district court to stay his
Colo. R. Crim. P. 35(c) motion (asserting the IAC claims) while his appeal on the first
Rule 35 motion was pending so that his federal habeas petition would not be timebarred. (ECF No. 12, at 6-8). The state district court denied Applicant’s request for a
stay and dismissed the Rule 35(c) motion, concluding that it lacked jurisdiction because
of the pending appeal. (Id. at 10).
As discussed above, Mr. Garcia has until July 30, 2014, to file his federal
application. If the Colorado Court of Appeals enters a decision in Case No. 12CA2290
before July 30, 2014, Mr. Garcia may refile his second Rule 35 motion (asserting the
IAC claims) in the state district court before the one-year period expires, and thereby toll
the limitation period while that motion is pending. Applicant could then return to federal
court and assert all of his federal claims before the one-year period expires. However, if
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the state appellate court does not rule in Case No. 12CA2290 until after July 30, 2014,
Applicant’s IAC claims may be forever time-barred.
Applying Rhines, the Court finds, based on the record now before it, that
Applicant has shown good cause for his failure to exhaust his IAC claims in the state
courts. The Court further finds that Mr. Garcia has not engaged in abusive litigation
tactics or intentional delay. Instead, he has acted with due diligence in attempting to
exhaust state court remedies for his federal claims. Finally, it is not clear from the
allegations of the § 2254 Application that all of Applicant’s ineffective assistance of trial
and appellate counsel claims are “plainly meritless.” Rhines, 544 U.S. at 277.
Although Mr. Garcia has indicated a desire to dismiss claims four and five and
proceed only with his exhausted claims at this time, he has also expressed confusion
about the import of that decision. The Court finds that the Applicant’s interest in
obtaining federal review of all of his claims outweighs the competing interests in finality
and speedy resolution of federal petitions. Accordingly, this action will be stayed
pending the Colorado Court of Appeals’ determination of Applicant’s appeal of the
denial of his first Rule 35 motion in Case No. 12CA2290. Respondents represent that
the case is fully briefed and oral argument was requested on April 15, 2014. (ECF No.
9, at 3). It is therefore
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1), filed by Applicant Anthony Lawrence Garcia, is STAYED
pending the Colorado Court of Appeals’ determination of Applicant’s appeal of the
denial of his first state post-conviction motion in Case No. 12CA2290. It is
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FURTHER ORDERED that the parties shall notify the Court in writing of the
Colorado Court of Appeals’ decision in Case No. 12CA2290, within five (5) days after
the decision issues, and shall provide the Court a copy of the Colorado Court of
Appeals’ opinion. The Court will enter further orders thereafter.
DATED June 19, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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