Esparza v. Falk et al

Filing 19

ORDER to Dismiss in Part. Claim 7(c) in the Application is DISMISSED because the claim isunexhausted and procedurally barred. Within thirty days Respondents are directed to file an answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases that fully addresses the merits of the remaining claims. Within thirty days of the filing of the answer Applicant may file a reply, if he desires. By Judge Christine M. Arguello on 08/21/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 14-cv-01186-CMA
GABRIEL ESPARZA,
Applicant,
v.
JAMES FALK, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO DISMISS IN PART

Applicant, Gabriel Esparza, is a prisoner in the custody of the Colorado
Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado.
Mr. Esparza has filed pro se an Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254 (Doc. # 1) (“the Application”) challenging the validity of his conviction
and sentence in Arapahoe County District Court case number 04CR1256.
On April 29, 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 May 9, 2014, Respondents filed a Pre-Answer Response (the
“Response”) (Doc. # 8). In the Response, Respondents concede that the instant action
is timely and that Claims 1, 2, 3, 4, 5, 6, and 7(d) are exhausted but argue that Claims

7(a) and (b) are unexhausted and Claim 7(c) is procedurally defaulted. On May 29,
2014, Mr. Esparza filed his “Reply to Pre-Answer Response” (the “Reply”) (Doc. # 9).
The Court must construe the Application and the Reply filed by Mr. Esparza
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, in part.
I. BACKGROUND
After a jury trial, Mr. Esparza was convicted of first degree murder of his
estranged wife, aggravated motor vehicle theft, and violation of a protective order.
(Doc. # 8-13 at 3). He was sentenced to life without parole. (Id.). He appealed the
judgment of conviction, and the Colorado Court of Appeals affirmed. See People v.
Esparza, No. 05C1952, slip op. at 1 (Colo. App. Apr. 30, 2009) (Doc. # 1-1 at 2).
On July 20, 2009, the Colorado Supreme Court denied Mr. Esparza’s petition for writ
of certiorari on direct appeal. (See Doc. # 1-2).
On December 7, 2009, Mr. Esparza filed in the state district court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure.
(See Doc. # 8-1 at 4). Mr. Esparza also requested that postconviction counsel be
appointed, but the state district court denied the request and summarily denied his Rule
35(c) motion. (See Doc. # 1-3). On January 19, 2012, the Colorado Court of Appeals
affirmed the trial court’s order denying the Rule 35(c) motion. (See Doc. # 1-4 at 2).

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On September 23, 2013, the Colorado Supreme Court denied Mr. Esparza’s petition
for writ of certiorari in the state court postconviction proceedings. (See Doc. # 1-5.)
On April 28, 2014, Mr. Esparza filed the § 2254 Application asserting seven
claims for relief. He asserts in Claim 1 that his Fourth Amendment rights were violated
when he was arrested without a warrant and searched. He contends in Claim 2 that
the trial court violated his Fourth Amendment rights by denying his motion to suppress
evidence from invalid searches. Mr. Esparza asserts in Claim 3 that he was tried before
a biased judge who should have recused himself in violation of his due process rights
under the Fifth and Fourteenth Amendments. He asserts in Claim 4 that the trial court
violated his due process rights under the Sixth and Fourteenth Amendments by making
prejudicial evidentiary rulings. He alleges in Claim 5 that his due process rights were
violated because the prosecution misled defense counsel and the trial court refused to
hold a suppression hearing. Mr. Esparza also asserts in Claim 6 his due process rights
were violated by prosecutorial misconduct. Mr. Esparza finally contends in Claim 7 that
he received ineffective assistance of trial counsel because (a) counsel did not conduct
a sufficient investigation into his casino alibi defense; (b) counsel failed to secure a
Gun Shot Residue expert to challenge the State’s interpretation of the CBI test results;
(c) counsel did not represent him during the motions hearing concerning a forced
handwriting exemplar; and (d) counsel infringed on his right to plead not guilty and
to testify on his own behalf by admitting his guilt to the jurors in opening statements.

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II. ONE-YEAR LIMITATION PERIOD
Respondents concede that this action is not barred by the one-year limitation
period in 28 U.S.C. § 2244(d).
III. EXHAUSTION OF STATE REMEDIES
Respondents also concede that Claims 1, 2, 3, 4, 5, 6, and 7(d) are exhausted.
However, Respondents argue that Claims 7(a) and (b) are unexhausted and Claim 7(c)
is procedurally defaulted.
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.
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.

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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 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 he has exhausted all
available state remedies for each particular claim. See Miranda v. Cooper, 967
F.2d 392, 398 (10th Cir. 1992). A blanket statement that state remedies have been
exhausted does not satisfy this burden. See Olson v. McKune, 9 F.3d 95 (10th Cir.
1993); see also Fuller v. Baird, 306 F. App’x 430, 431 n.3 (10th Cir. 2009) (stating
that a bald assertion unsupported by court records is insufficient to demonstrate state
remedies are exhausted).
A.

CLAIMS 7(a) AND (b)
As noted above, Mr. Esparza contends in Claim 7 that his trial counsel was

ineffective for (a) not conducting a sufficient investigation into his alibi defense; and
(b) not securing a Gun Shot Residue expert to challenge the State’s CBI test results.
Respondents contend that Mr. Esparza failed to exhaust state remedies for Claims 7(a)
and (b) because, although he raised the claims as a question of federal constitutional
law to the Colorado Court of Appeals in his postconviction proceedings, he did not

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include the claims in his postconviction petition for writ of certiorari to the Colorado
Supreme Court.
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

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(D. Colo. Feb. 28, 2011). As noted above, Respondents concede that Mr. Esparza
fairly presented Claims 7(a) and (b) to the Colorado Court of Appeals and it is clear that
the Colorado Court of Appeals denied relief. (See Doc. # 8 at 16; Doc. # 8-13 at 10,
12-13).
The Court is not persuaded by Respondents’ argument that a petition for writ of
certiorari 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 Claims 7(a) and (b) are
exhausted.
B.

CLAIM 7(c)
As noted above, Mr. Esparza contends in Claim 7(c) that his trial counsel was

ineffective because counsel did not represent him during a motions hearing concerning
a forced handwriting exemplar. Respondents argue that Mr. Esparza failed to exhaust
this claim because he did not present the claim to the Colorado Court of Appeals.
The Court has reviewed the briefs in the postconviction proceedings and agrees that
Mr. Esparza did not present this claim to the Colorado Court of Appeals. Therefore,

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the Court finds that Mr. Esparza fails to satisfy his burden of demonstrating that Claim
7(c) is exhausted.
IV. PROCEDURAL DEFAULT
Although Mr. Esparza failed to exhaust state remedies for Claim 7(c), the Court
may not dismiss the claim for failure to exhaust state remedies if Mr. Esparza no longer
has an adequate and effective state remedy available to him. See Castille, 489 U.S.
at 351. Respondents assert that claim 7(c) is procedurally defaulted.
If it is obvious that an unexhausted claim would be procedurally defaulted in state
court, the claim is held procedurally barred from federal habeas review. Steele v.
Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (citing Coleman v. Thompson, 501 U.S.
722, 735 n .1 (1991); Harris v. Reed, 489 U.S. 255, 269–70 (1989)). The Colorado
Rules of Criminal Procedure prohibit successive postconviction Rule 35 motions with
limited exceptions. See Colo. R. Crim. P. 35(c)(3)(VI) and (VII). The exceptions are not
applicable to Mr. Esparza’s unexhausted Claim 7(c). Id. Thus, Claim 7(c) is subject to
an anticipatory procedural bar. See Anderson v. Sirmons, 476 F.3d 1131, 1139 n. 7
(10th Cir. 2007).
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).
Even if the unexhausted claim has not actually been raised and rejected by the state

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courts, the claim still is subject to an anticipatory procedural default if it is clear that the
claim would be rejected because of an independent and adequate state procedural rule.
See Coleman, 501 U.S. at 735 n.1. Application of this procedural default rule in the
habeas corpus context is based on comity and federalism concerns. See Coleman, 501
U.S. at 730. Mr. Esparza’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. Esparza 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. Esparza 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.
Mr. Esparza makes no attempt to demonstrate any basis for finding cause and
prejudice or a fundamental miscarriage of justice for his procedural default. However,
he may be contending that a failure to consider Claim 7(c) will result in a fundamental
miscarriage of justice because he asserts that he “has never waivered [sic] in his
assertion that he was innocent.” (Doc. # 1 at 22).

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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. Esparza’s conclusory assertion that he has maintained his innocence is not
sufficient to demonstrate the existence of a fundamental miscarriage of justice because
he fails to offer new evidence of actual innocence. See Schlup v. Delo, 513 U.S. 298,
324 (1995) (stating that a credible claim of actual innocence requires a petitioner
“to support his allegations of constitutional error with new reliable evidence–whether it
be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence--that was not presented at trial”). Therefore, Claim 7(c) is procedurally barred
from federal habeas review and must be dismissed.
V. CONCLUSION
In summary, Respondents do not raise the one-year limitation period as an
affirmative defense and Respondents concede that Claims 1, 2, 3, 4, 6, and 7(d) are
exhausted. The Court rejects Respondents’ arguments that Claims 7(a) and (b) are
unexhausted. However, Claim 7(c) will be dismissed as unexhausted and procedurally
barred. Accordingly, it is
ORDERED that Claim 7(c) in the Application is DISMISSED because the claim is
unexhausted and procedurally barred. It is
FURTHER ORDERED that within thirty days Respondents are directed to file an
answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases that fully
addresses the merits of the remaining claims. It is

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FURTHER ORDERED that within thirty days of the filing of the answer Applicant
may file a reply, if he desires.
DATED: August

21

, 2014
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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