Marquez v. Line et al

Filing 17

ORDER to Dismiss in Part, it is ORDERED that claim 3 in the Application is DISMISSED as moot and claim 5 in the Application is DISMISSED for failure to present a federal constitutional issue. It is FURTHER ORDERED that claims 1 and 4 in the App lication are DISMISSED because the claims are 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 claim. It is FURTHER ORDERED that within thirty days of the filing of the answer Applicant may file a reply, if he desires, by Judge William J. Martinez on 8/12/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable William J. Martínez
Civil Action No. 14-cv-01313-WJM
ANTHONY MARQUEZ,
Applicant,
v.
RICK LINE, Warden, Arkansas Valley Corr. Fac., and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO DISMISS IN PART

Applicant Anthony Marquez is a prisoner in the custody of the Colorado
Department of Corrections at the Arkansas Valley Correctional Facility in Ordway,
Colorado. Mr. Marquez has filed a pro se 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 Denver District Court case number 05CR3500. On June
20, 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 July 7,
2014, Respondents filed a Pre-Answer Response (ECF No. 11) arguing that each claim
in the Application should be dismissed. On July 23, 2014, Mr. Marquez filed
“Applicant’s Reply to Respondent[s’] Pre-Answer Response” (ECF No. 12).
The Court must construe the Application and other papers filed by Mr. Marquez

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
Mr. Marquez was convicted by a jury of theft, theft from an at-risk victim,
possession of a controlled substance, and possession of a controlled substance with
intent to distribute. According to the Colorado Court of Appeals, the evidence at trial
established the following facts:
Defendant defrauded a seventy-six year-old man (the
victim) of approximately seventy thousand dollars by telling
him, falsely, that he needed money for his ill mother. Over
several months, the victim made numerous withdrawals from
his bank account and provided the funds to defendant. At
trial, the victim was unable to recall many of the withdrawals
he had made, or to identify defendant. However,
defendant’s identity as the perpetrator was established by a
bank employee who testified that she had called the police
after defendant accompanied the victim to the bank, took
possession of more than nine thousand dollars in cash which
the victim had withdrawn from his account, and falsely stated
that the victim was his father. In addition, a police officer
testified that the victim had identified defendant as the
person to whom he had given large sums of money.
An investigator testified that he obtained a warrant for
defendant’s arrest and went to an apartment building with
several police officers. As he approached, the investigator
encountered defendant, who was wearing a pair of black
pants with red stripes. Defendant ran inside and changed
his pants, but he soon surrendered while attempting to flee.
The investigator then searched the residence and found the
red striped pants he had seen defendant wearing. The
investigator searched the pants and found more than one
hundred and ninety-five grams of crack cocaine, and nearly
nine thousand dollars in cash. During a search of the house,
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one of the officers found a digital scale.
People v. Marquez, No. 06CA1701, slip op. at 4-5 (Colo. App. Mar. 18, 2010)
(unpublished) (ECF No. 11-9 at 6-7). The judgment of conviction was affirmed on direct
appeal, but the court of appeals determined that the two theft convictions must be
merged and that the two controlled substance offenses also must be merged. (See
ECF No. 11-9 at 7-10.) Thus, the court of appeals vacated the conviction for simple
possession and remanded the matter with instructions to correct the mittimus to reflect a
single conviction for “theft (from an at-risk adult)” and resentence Mr. Marquez for that
offense. (See id. at 10.) On July 19, 2010, the Colorado Supreme Court denied Mr.
Marquez’s petition for writ of certiorari on direct appeal. (See ECF No. 11-7.) Pursuant
to an amended mittimus issued in March 2011, Mr. Marquez was sentenced as an
habitual offender to concurrent terms of forty-eight and sixty-four years in prison.
On April 27, 2011, Mr. Marquez filed in the trial court a postconviction motion
pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 111 at 11.) On June 16, 2011, the trial court denied the Rule 35(c) motion without a
hearing and without appointing counsel. (See id.) The trial court’s order denying the
Rule 35(c) motion was affirmed on appeal. See People v. Marquez, No. 11CA1569
(Colo. App. Apr. 11, 2013) (unpublished) (ECF No. 11-4). On December 9, 2013, the
Colorado Supreme Court denied Mr. Marquez’s petition for writ of certiorari in the
postconviction Rule 35(c) proceedings. (See ECF No. 11-2.)
The Application was filed on May 9, 2014, and Mr. Marquez presents five claims
for relief. He asserts in claim 1 that the trial court erred in refusing to sever the theft
charges from the drug charges in violation of his right to due process. He contends in
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claim 2 that the evidence was insufficient to support his convictions in violation of his
right to due process. Mr. Marquez alleges in claim 3 that he was subjected to double
jeopardy because two of the four offenses on which he was convicted are lesser
included offenses of the other convictions. He contends in claim 4 that the Colorado
Court of Appeals improperly refused to consider the severance claim on direct appeal in
violation of his right to due process. Mr. Marquez finally asserts in claim 5 that the trial
court improperly denied his postconviction Rule 35(c) motion using the wrong standard
and without holding a hearing or appointing counsel.
The Court notes initially that claim 5 may not be raised in this habeas corpus
action because there is no federal constitutional right to postconviction review in the
state courts. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Thus, a claim of
constitutional error that “focuses only on the State’s post-conviction remedy and not the
judgment which provides the basis for [the applicant’s] incarceration . . . states no
cognizable federal habeas claim.” Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir.
1998); see also Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (noting that
petitioner’s challenge to state “post-conviction procedures on their face and as applied
to him would fail to state a federal constitutional claim cognizable in a federal habeas
proceeding”). Mr. Marquez contends in claim 5 only that the trial court improperly
denied his postconviction Rule 35(c) motion. Although he may have asserted
ineffective assistance of counsel claims in the Rule 35(c) motion, Mr. Marquez does not
assert in claim 5 in the Application any argument or claim that counsel was ineffective.
Therefore, claim 5 will be dismissed for failure to present a cognizable federal
constitutional issue.
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Claim 3 also will be dismissed because Mr. Marquez concedes in his reply to the
Pre-Answer Response that his double jeopardy claim is moot in light of his resentencing
following direct appeal. (See ECF No. 12 at 5.)
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 argue that claims 1 and 4 are unexhausted and procedurally barred
and that claim 2 is unexhausted.
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. 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, 36566 (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 1 and 4
Claims 1 and 4 both relate to the severance issue. Mr. Mendoza contends in
claim 1 that the trial court erred in refusing to sever the theft charges from the drug
charges in violation of his right to due process. He contends in claim 4 that the
Colorado Court of Appeals improperly refused to consider the severance claim on direct
appeal in violation of his right to due process.
Respondents contend that Mr. Marquez failed to exhaust state remedies for
claims 1 and 4 because, although he raised a claim regarding the severance issue on
direct appeal, he did not raise the severance claim on direct appeal as a federal
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constitutional claim. Respondents also argue that claims 1 and 4 are procedurally
defaulted because the Colorado Court of Appeals declined to address the severance
issue on direct appeal, finding that the argument “was not properly before [the court].”
(ECF No. 11-9 at 3.) The state court determined that the trial court’s denial of Mr.
Marquez’s pretrial motion to sever the counts was not properly preserved for appellate
review because Mr. Marquez did not renew the motion at trial as required under
Colorado law.
Mr. Marquez contends that claims 1 and 4 are exhausted because the severance
issue was raised on direct appeal. He also contends that claims 1 and 4 should not be
dismissed because he had to rely on court- appointed attorneys to represent him and
any failure to properly raise the severance claim on direct appeal is not his fault.
The Court has reviewed Mr. Marquez’s opening brief on direct appeal and finds
that, unlike the other claims raised on direct appeal, the severance claim was not
labeled or otherwise identified as a federal claim. (See ECF No. 11-10 at 13-18.) Mr.
Marquez did make two brief references to a “fair trial” in the context of his severance
claim in his opening brief. (See ECF No. 11-10 at 14.) However, the brief references to
a “fair trial” are not sufficient to demonstrate he fairly presented the severance claim to
the Colorado Court of Appeals as a federal constitutional claim. See Gray v.
Netherland, 518 U.S. 152, 163 (1996) (stating that a general appeal to a broad
constitutional guarantee such as due process does not satisfy the exhaustion
requirement).
“If state courts are to be given the opportunity to correct alleged violations of
prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are
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asserting claims under the United States Constitution.” Duncan, 513 U.S. at 365-66.
Furthermore,
[a] litigant wishing to raise a federal issue can easily indicate
the federal law basis for his claim in a state-court petition or
brief, for example, by citing in conjunction with the claim the
federal source of law on which he relies or a case deciding
such a claim on federal grounds, or by simply labeling the
claim “federal.”
Baldwin v. Reese, 541 U.S. 27, 32 (2004). Mr. Marquez did not identify his severance
claim on direct appeal as a federal claim. Therefore, the Court finds that Mr. Marquez
fails to satisfy his burden of demonstrating claims 1 and 4 are exhausted.
B. Claim 2
Mr. Marquez contends in claim 2 that the evidence was insufficient to support his
convictions in violation of his right to due process. Mr. Marquez does not specify in the
Application how the evidence was insufficient. Instead, he incorporates within claim 2
the insufficient evidence arguments he raised in his opening brief on direct appeal.
(See ECF No. 1 at 7.) The Court will thus limit the insufficient evidence claim to the
arguments Mr. Marquez raised on direct appeal. (See ECF No. 11-10 at 18-24.)
Respondents concede that Mr. Marquez fairly presented a federal constitutional
claim premised on insufficient evidence to the Colorado Court of Appeals on direct
appeal. However, Respondents argue that claim 2 in the Application is not exhausted
because Mr. Marquez did not include the insufficient evidence claim in his petition for
writ of certiorari to the Colorado Supreme Court on direct appeal.
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

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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 (D.
Colo. Feb. 28, 2011). As noted above, Respondents concede that Mr. Marquez fairly
presented claim 2 to the Colorado Court of Appeals and it is clear that the Colorado
Court of Appeals denied relief.
The Court is not persuaded by Respondents’ argument that a petition for writ of
certiorari still is necessary to exhaust state remedies in Colorado. Therefore, the Court
finds that claim 2 is exhausted.
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IV. PROCEDURAL DEFAULT
Respondents next contend that the unexhausted severance issue presented in
claims 1 and 4 is procedurally defaulted because the Colorado Court of Appeals
determined the claim had not been preserved for appellate review. 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, 501 U.S. at 730. Mr. Marquez’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).
Mr. Marquez fails to demonstrate or even argue that the state procedural ground
employed by the Colorado Court of Appeals to reject his severance claim is not
independent and adequate. Therefore, the Court agrees with Respondents that the
severance issue raised in claims 1 and 4 is procedurally defaulted and cannot be
considered unless Mr. Marquez demonstrates either cause and prejudice or a
fundamental miscarriage of justice.
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To demonstrate cause for his procedural default, Mr. Marquez 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. Marquez 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.
As noted above, Mr. Marquez contends that he can demonstrate cause for his
procedural default because he had to rely on court-appointed counsel and should not be
held responsible for counsel’s failure to preserve the severance issue for appellate
review. In certain instances, ineffective assistance of counsel can constitute cause to
excuse a procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000).
However, Mr. Marquez cannot demonstrate cause for a procedural default premised on
ineffective assistance of counsel unless the ineffective assistance of counsel claim first
is raised as an independent constitutional claim in state court. See id. Mr. Marquez did
not raise in his opening brief on appeal from the denial of his postconviction Rule 35(c)
motion any claim that counsel was ineffective by failing to properly preserve the
severance issue for appellate review. (See ECF No. 11-5.) As a result, Mr. Marquez
cannot rely on counsel’s alleged ineffectiveness to demonstrate cause for his
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procedural default of the severance claim.
Mr. Marquez raises no other arguments 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 the merits of the severance issue will result in a fundamental
miscarriage of justice. Therefore, the severance issue raised in claims 1 and 4 is
procedurally barred and must be dismissed.
V. CONCLUSION
In summary, claim 5 does not present a federal constitutional issue and Mr.
Marquez concedes that claim 3 is moot. Respondents do not raise the one-year
limitation period as an affirmative defense. The Court rejects Respondents’ argument
that claim 2 is unexhausted. However, claims 1 and 4 will be dismissed as unexhausted
and procedurally barred. Accordingly, it is
ORDERED that claim 3 in the Application is DISMISSED as moot and claim 5 in
the Application is DISMISSED for failure to present a federal constitutional issue. It is
FURTHER ORDERED that claims 1 and 4 in the Application are DISMISSED
because the claims are 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 claim. It is
FURTHER ORDERED that within thirty days of the filing of the answer Applicant
may file a reply, if he desires.
Dated this 12th day of August, 2014.

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BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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