Thomas v. Trani et al

Filing 36

ORDER TO DISMISS IN PART by Judge Lewis T. Babcock on 6/5/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Lewis T. Babcock

Civil Action No. 14-cv-01950-LTB
DEMETRIUS THOMAS,
Applicant,
v.
TRAVIS TRANI, and
JOHN W. SUTHERS, Attorney General of the State of Colorado,
Respondents.

ORDER TO DISMISS IN PART

Applicant, Demetrius Thomas, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Thomas initiated this action by filing pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). On
September 2, 2014, Mr. Thomas filed an amended Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 12) (the “Amended Application”). He is
challenging the validity of his conviction and sentence in El Paso County District Court
case number 07CR308.
On September 16, 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 November 7, 2014, Respondents filed their

Pre-Answer Response (ECF No. 20) apparently arguing that this action is untimely and
that all but one of Mr. Thomas’ claims are unexhausted or procedurally defaulted. On
December 2, 2014, Mr. Thomas filed a Reply to Pre-Answer Response (ECF No. 22)
arguing, in part, that the one-year limitation period should be equitably tolled.
On December 3, 2014, Magistrate Judge Gordon P. Gallagher entered an order
giving Respondents an opportunity to file a supplement to the Pre-Answer Response
that addresses Mr. Thomas’ equitable tolling arguments. On December 19, 2014,
Respondents filed their Supplemental Pre-Answer Response (ECF No. 24). On
January 15, 2015, Mr. Thomas filed a reply (ECF No. 25) to the Supplemental PreAnswer Response. On April 7, 2015, Magistrate Judge Gallagher directed
Respondents to submit the state court record.
The Court must construe the Amended Application and other papers filed by Mr.
Thomas 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. Thomas was convicted by a jury of first degree assault. The judgment of
conviction was affirmed on direct appeal. See People v. Thomas, No. 08CA1492 (Colo.
App. May 20, 2010) (unpublished) (ECF No. 20-3). On August 16, 2010, the Colorado
Supreme Court denied Mr. Thomas’ petition for writ of certiorari on direct appeal. (See
ECF No. 20-5.)
On March 4, 2011, Mr. Thomas filed in the trial court a postconviction motion
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pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 201 at 10.) On June 17, 2011, the trial court denied the Rule 35(c) motion. (See id.) The
trial court’s order was affirmed on appeal. See People v. Thomas, No. 11CA1572
(Colo. App. Jan. 24, 2013) (unpublished) (ECF No. 20-8). Mr. Thomas did not file a
petition for rehearing or seek review in the Colorado Supreme Court. The mandate was
issued on March 22, 2013.
On March 15, 2013, Mr. Thomas filed in the trial court a second postconviction
motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF
No. 20-1 at 8.) On April 12, 2013, the trial court denied the second Rule 35(c) motion
as successive. (See id.) The trial court’s order denying the second Rule 35(c) motion
was affirmed on appeal because the second Rule 35(c) motion contained only claims
that were, or could have been, raised and resolved in a prior appeal or postconviction
proceeding. See People v. Thomas, No. 13CA0806 (Colo. App. May 15, 2014)
(unpublished) (ECF No. 20-11). Mr. Thomas did not file a petition for rehearing or seek
review in the Colorado Supreme Court. The mandate was issued on July 11, 2014.
The instant action was commenced on July 14, 2014. In their Pre-Answer
Response Respondents identify twenty-five separate claims for relief in the Amended
Application, including some with subparts. In his reply to the Pre-Answer Response Mr.
Thomas agrees that he is asserting the twenty-five claims identified by Respondents.
Those claims are the following:
1.

“[i]nvalid waiver of rights[;] violation of Sixth Amendment right to a fair
trial”;

2.

“Brady violation[;] non[-]disclosure of exculpatory evidence[;] violation of
Sixth Amendment right to a fair trial[;] 14th Amendment due process”;
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3.

“violation of 14th Amendment equal protection [–] disparate punishment for
similarly situated”;

4.

“violation of fair notice doctrine rights”;

5.

“violation of Sixth Amendment right to a fair trial” because “evidence of the
shell casings should have been suppressed”;

6.

“the district court’s evidentiary rulings denied Mr. Thomas his compulsory
process” by not admitting testimony that Mr. Thomas “should be the
‘sacrificial lamb’”;

7.

ineffective assistance of trial counsel by (a) failing to investigate Mr.
Thomas’ mental state, (b) abandoning the defense of intoxication, (c)
failing to object to a second trial, (d) refusing to introduce evidence falsely
accusing Mr. Thomas, (e) failing to object to prosecutorial misconduct, (f)
failing to object to the trial court’s selection of an alternate black juror, (g)
failing to request a lesser included offense instruction, (h) failing to object
to perjured testimony, (i) failing to challenge Mr. Thomas’ enhanced
sentence, and (j) laboring under a conflict of interest because counsel
previously worked for the El Paso County District Attorney’s Office;

8.

violation of double jeopardy when Mr. Thomas was retried after the first
trial ended in mistrial due to insufficient evidence;

9.

the prosecution knowingly used perjured testimony of Brian Melvin and
Tiana Campbell;

10.

violation of the Sixth Amendment’s Confrontation Clause because of the
admission of Tiana Campbell’s DVD interview;

11.

cumulative error resulting from ineffective assistance of trial and appellate
counsel, insufficient evidence of Mr. Thomas’ mens rea, and prosecutorial
misconduct;

12.

“the denial of counsel in [Mr. Thomas’] initial collateral proceedings was a
denial of his Sixth Amendment right to a fair trial”;

13.

Mr. Thomas’ sentence is illegal because the evidence was insufficient to
sustain the jury’s verdict of first degree assault, and “the fact that Colorado
took an element of 1st degree assault serious bodily injury and use of a
deadly weapon and used it to enhance his sentence” violates Apprendi;

14.

the evidence was insufficient to sustain the jury’s verdict beyond a
reasonable doubt because the slugs that struck the victim were never
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introduced;
15.

new evidence of the identity of the shooter establishes actual innocence;

16.

the prosecutor improperly commented on an evidentiary matter that only
Mr. Thomas could have explained and on Mr. Thomas’ right to not testify;
further, counsel was ineffective for failing to object to the prosecutor’s
suggestion that Mr. Thomas was guilty because he was being prosecuted;

17.

Mr. Thomas “was denied 14th Amendment equal protection of laws and
due process when the state courts denied his motion for counsel and a
hearing, due to the newly discovered evidence of his mental status”;

18.

“invalid waiver of right to testify”;

19.

Mr. Thomas’ “14th Amendment due process rights were violated because
there was not an intoxication instruction”;

20.

ineffective assistance of appellate counsel by: (a) failing to raise claims: (i)
that Mr. Thomas’ second trial was barred by double jeopardy; (ii) of
prosecutorial misconduct; (iii) challenging lack of an intoxication
instruction; (iv) challenging the lack of an accomplice instruction; (v)
concerning a violation of Mr. Thomas’ confrontation rights; and (b) failing
to investigate: (i) the co-defendant’s sentence; and (ii) Mr. Thomas’ mental
health;

21.

confessions by Tiana Campbell and Brian Melvin were involuntary and
coerced;

22.

Mr. Thomas’ rights to a fair trial and due process were violated because
there was not an accomplice instruction;

23.

the jury twice rendered inconsistent verdicts, and the trial court erred in
refusing to accept the verdicts and in twice ordering the jury to deliberate
further;

24.

the reasonable doubt instruction violated Mr. Thomas’ right to a fair trial;
and

25.

the trial court violated Mr. Thomas’ rights to a fair trial and due process
when it denied his motion for a new trial.

Claim 25 is numbered in the Amended Application as “Claim 24” even though it follows
claim 16. (See ECF No. 12 at 55.) Respondents renumbered the claim as claim 25,
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and the Court does the same, because the Amended Application already includes a
claim 24 in its natural sequence.
II. ONE-YEAR LIMITATION PERIOD
Respondents first argue that the Application is barred by the one-year limitation
period in 28 U.S.C. § 2244(d). That statute provides as follows:
(1) A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall
run from the latest of–
(A) the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;
(B) the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection.
28 U.S.C. § 2244(d).

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In order to apply the one-year limitation period the Court first must determine the
date on which Mr. Thomas’ conviction became final. See 28 U.S.C. § 2244(d)(1)(A). In
general, a conviction becomes final following a decision by the state court of last resort
on direct appeal when the United States Supreme Court denies review, or, if no petition
for writ of certiorari is filed, when the time for seeking such review expires. See Locke
v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001).
As noted above, the Colorado Supreme Court denied Mr. Thomas’ petition for
writ of certiorari on direct appeal on August 16, 2010. Pursuant to Rule 13.1 of the
Rules of the Supreme Court of the United States, Mr. Thomas had ninety days to seek
review in the United States Supreme Court but he did not do so. The ninetieth day after
August 16, 2010, was Sunday, November 14, 2010. Therefore, the filing period
extended one additional day until Monday, November 15, 2010. See Sup. Ct. R. 30.1.
As a result, Mr. Thomas’ conviction became final on November 15, 2010, when the time
for filing a petition for writ of certiorari in the United States Supreme Court expired.
Mr. Thomas did not initiate this action within one year after November 15, 2010.
Therefore, the next question the Court must answer is whether the one-year limitation
period was tolled for any period of time. Pursuant to 28 U.S.C. § 2244(d)(2), a properly
filed state court postconviction motion tolls the one-year limitation period while the
motion is pending. An application for postconviction review is properly filed within the
meaning of § 2244(d)(2) “when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000).
These requirements include:
(1) the place and time of filing; (2) the payment or waiver of
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any required filing fees; (3) the obtaining of any necessary
judicial authorizations that are conditions precedent to filing,
such as satisfying any filing preconditions that may have
been imposed on an abusive filer; and (4) other conditions
precedent that the state may impose upon the filing of a
post-conviction motion.
Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000) (footnote omitted).
The issue of whether a state court postconviction motion is pending for the
purposes of § 2244(d)(2) is a matter of federal law, but “does require some inquiry into
relevant state procedural laws.” See Gibson v. Klinger, 232 F.3d 799, 806 (10th Cir.
2000). The term “pending” includes “all of the time during which a state prisoner is
attempting, through proper use of state court procedures, to exhaust state court
remedies with regard to a particular post-conviction application.” Barnett v. Lemaster,
167 F.3d 1321, 1323 (10th Cir. 1999). Furthermore, “regardless of whether a petitioner
actually appeals a denial of a post-conviction application, the limitations period is tolled
during the period in which the petitioner could have sought an appeal under state law.”
Gibson, 232 F.3d at 804.
Respondents concede that the one-year limitation period was tolled pursuant to §
2244(d)(2) while the first postconviction Rule 35(c) motion Mr. Thomas filed on March 4,
2011, was pending. However, the 108 days between November 15, 2010, and March 4,
2011, count against the one-year limitation period.
As noted above, the trial court denied the first Rule 35(c) motion on June 17,
2011, and the Colorado Court of Appeals affirmed the trial court’s order on January 24,
2013. Mr. Thomas did not file either a petition for rehearing or a petition for writ of
certiorari to the Colorado Supreme Court but the first postconviction Rule 35(c) motion

8

remained pending until the time to file a petition for writ of certiorari expired forty-two
days later on March 7, 2013. See C.A.R. 52(b)(3).
Respondents contend that the second postconviction Rule 35(c) motion Mr.
Thomas filed on March 15, 2013, was not properly filed and did not toll the one-year
limitation period because that motion was filed at a time when the trial court lacked
jurisdiction to consider the motion. See Artuz, 531 U.S. at 9 (“If, for example, an
application is erroneously accepted by the clerk of a court lacking jurisdiction, . . . it will
be pending, but not properly filed.”). Respondents argue in support of this contention
that, under Colorado law, the filing of a notice of appeal divests the trial court of subject
matter jurisdiction to entertain any motion for an order that affects the judgment; the
Colorado Court of Appeals did not issue its mandate in connection with Mr. Thomas’
appeal from the denial of his first Rule 35(c) motion until March 22, 2013; and Mr.
Thomas filed the second Rule 35(c) motion on March 15, 2013, before the mandate
issued returning jurisdiction to the trial court. The Court is not persuaded.
Respondents are correct that the trial court lacked jurisdiction to consider the
second Rule 35(c) motion while the prior appeal was pending. See People v. Jones,
631 P.2d 1132, 1133 (Colo. 1981) (when an appeal is perfected, the trial court is
divested of jurisdiction; but the trial court’s jurisdiction is restored when the appellate
court issues its mandate). However, the trial court did not deny the second Rule 35(c)
motion until April 12, 2013, which was after jurisdiction had been restored.
Furthermore, the trial court did not deny the second Rule 35(c) motion based on a lack
of jurisdiction and there is no mention in the order of the Colorado Court of Appeals
affirming the denial of the second Rule 35(c) motion that the trial court lacked
9

jurisdiction. Therefore, the Court concludes that the second Rule 35(c) motion was
properly filed and tolled the one-year limitation period pursuant to § 2244(d)(2)
beginning on March 22, 2013, when the trial court’s jurisdiction to consider the motion
was restored. That tolling continued until June 26, 2014, when the time expired for Mr.
Thomas to file a petition for writ of certiorari to the Colorado Supreme Court after the
Colorado Court of Appeals announced its opinion on May 15, 2014. See C.A.R.
52(b)(3). Because the instant action was filed shortly thereafter on July 14, 2014, the
Court finds that the action is timely.
III. EXHAUSTION OF STATE REMEDIES
Respondents concede that claim 23 is exhausted. Respondents also concede
that Mr. Thomas raised claims 7(d) and 20(a)(i) as federal constitutional claims on
appeal to the Colorado Court of Appeals. However, Respondents contend that claims
7(d) and 20(a)(i) are not exhausted because Mr. Thomas did not raise them in a petition
for writ of certiorari to the Colorado Supreme Court. Respondents contend that the
remainder of Mr. Thomas’ claims are unexhausted and 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
10

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
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 7(d) and 20(a)(i)
The Court first will address Respondents’ argument that claims 7(d) and 20(a)(i)
are not exhausted because Mr. Thomas did not raise those claims in a petition for writ
11

of certiorari to the Colorado Supreme Court. Respondents are correct that, in order to
exhaust state 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 (D.
Colo. Feb. 28, 2011). As discussed above, Respondents concede that Mr. Thomas
fairly presented claims 7(d) and 20(a)(i) to the Colorado Court of Appeals and it is clear
that the Colorado Court of Appeals denied relief on those claims.
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The Court is not persuaded by Respondents’ argument that a petition for writ of
certiorari still 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(d) and
20(a)(i) are exhausted.
B. Claims 6 and 25
Respondents maintain that claims 6 and 25 in the Amended Application are not
exhausted because, although Mr. Thomas raised the claims on direct appeal, he raised
them only as state law issues and not as federal constitutional claims. Mr. Thomas
contends in claim 6 that his right to compulsory process was violated as a result of the
trial court’s evidentiary rulings excluding testimony that Mr. Thomas should be the
sacrificial lamb. Mr. Thomas contends in claim 25 that the trial court violated his rights
to a fair trial and due process when it denied his motion for a new trial.
In his opening brief on direct appeal Mr. Thomas raised four claims: a Fourth
Amendment claim contending the police lacked probable cause to initiate a traffic stop;
a claim challenging evidentiary rulings precluding testimony about two statements that
Mr. Thomas should be the sacrificial lamb; a constitutional due process claim alleging
the trial court erred by failing to accept inconsistent verdicts and, instead, sending the
jury back for further deliberation; and a claim that the trial court erred by denying a
13

defense motion for a new trial based on the trial court’s refusal to accept inconsistent
verdicts.
The Court agrees with Respondents that Mr. Thomas did not fairly present to the
state courts on direct appeal the federal constitutional issues he raises in claims 6 and
25 in the Amended Application. “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 asserting claims under the United States Constitution.” Duncan, 513
U.S. at 365-66. Thus,
[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).
The Court’s review of Mr. Thomas’ opening brief on direct appeal demonstrates
that, although Mr. Thomas raised claims similar to claims 6 and 25 in the Amended
Application, he did not label or otherwise identify those claims as federal claims on
direct appeal. (See ECF No. 20-2.) The failure to identify either claim as a federal
constitutional claim stands in stark contrast to Mr. Thomas’ explicit references to the
United States Constitution in connection with two other claims in his opening brief on
direct appeal. (See ECF No. 20-2 at 7, 14-15.) Mr. Thomas did include in his opening
brief a reference to a “fair trial” in the context of his claim challenging evidentiary rulings.
(See ECF No. 20-2 at 12.) However, a brief reference to a “fair trial” is not sufficient to
demonstrate he fairly presented the claim to the Colorado Court of Appeals as a federal

14

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). Therefore, the Court finds that Mr. Thomas fails to satisfy
his burden of demonstrating the constitutional issues presented in claims 6 and 25 in
the Amended Application are exhausted.
C. All Other Claims
Respondents contend, and the Court’s review of the state court briefs confirms,
that Mr. Thomas did not fairly present any of his remaining claims to the Colorado
appellate courts. The Colorado Court of Appeals, in the state court postconviction
proceedings, determined that the only claims appropriate for review were Mr. Thomas’
claims “that trial counsel was ineffective for failing to (1) introduce letters from Ali, Sr. to
Ali, Jr. stating that defendant should be blamed for the shooting; and (2) introduce a
witness’s recorded statement in which she claimed that defendant was not the shooter”
and his claims that “appellate counsel was ineffective for failing to . . . argue that (1)
[defendant’s] retrial violated double jeopardy; and (2) the trial court erred in excluding
Ali, Sr.’s statements as irrelevant and inadmissible under CRE 403.” (ECF No. 20-8 at
7-8, 13.) These are the claims and arguments Respondents have identified as claims
7(d) and 20(a)(i) that the Court has determined are exhausted. The Colorado Court of
Appeals determined that the other claims Mr. Thomas raised on appeal from the denial
of his first postconviction Rule 35(c) motion were not appropriate for review because the
claims were abandoned, improperly raised for the first time on appeal, or could have
been raised on direct appeal. (See id. at 4-8.) Similarly, the Colorado Court of Appeals
affirmed the trial court’s denial of Mr. Thomas’ second postconviction Rule 35(c) motion
15

as successive because the sixteen claims Mr. Thomas raised in the second Rule 35(c)
motion “were, or could have been, raised and resolved in a prior appeal or
postconviction proceeding.” (ECF No. 20-11 at 6.)
Mr. Thomas apparently concedes that his remaining claims were not fairly
presented to the Colorado appellate courts because he does not argue otherwise.
Therefore, the Court finds that he fails to satisfy his burden of demonstrating any claims
other than claims 7(d), 20(a)(i), and 23 are exhausted.
IV. PROCEDURAL DEFAULT
Although Mr. Thomas fails to demonstrate he has exhausted state remedies for
any claims other than claims 7(d), 20(a)(i), and 23, the Court may not dismiss the claims
for failure to exhaust state remedies if Mr. Thomas no longer has an adequate and
effective state remedy available to him. See Castille, 489 U.S. at 351. Furthermore,
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 an
unexhausted claim has not actually been raised and rejected by the state 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.
“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
16

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.
Respondents contend, and the Court agrees, that Mr. Thomas no longer has an
adequate and effective state remedy available to him. As the Colorado Court of
Appeals determined with respect to a number of Mr. Thomas’ claims, Rule 35(c)(3)(VII)
of the Colorado Rules of Criminal Procedure provides that, with limited exceptions not
applicable to Mr. Thomas, the state courts must dismiss any claim that could have been
presented in a prior appeal or postconviction proceeding. In addition, even if Mr.
Thomas’ claims in this action were not actually rejected by the Colorado Court of
Appeals as successive, the same rule would prevent Mr. Thomas from raising any other
unexhausted claims in another successive postconviction motion. Furthermore, any
attempt by Mr. Thomas to file another postconviction Rule 35(c) motion in state court
would be untimely. See Colo. Rev. Stat. § 16-5-402 (providing that a defendant
convicted of felony other than a class 1 felony has three years to seek relief under Rule
35(c) unless he establishes good cause).
The Court notes that Rule 35(c)(3)(VII) is independent because it relies on state
rather than federal law. The rule also is adequate because it is applied evenhandedly
by Colorado courts. See, e.g., People v. Vondra, 240 P.3d 493, 494 (Colo. App. 2010)
(applying Crim P. Rule 35(c)(3)(VII) to reject claims that could have been raised in a
prior proceeding). Colorado’s statute of limitations for collateral attacks also is an
independent and adequate state procedural ground. See Klein v. Neal, 45 F.3d 1395,
1398 (10th Cir. 1995). Finally, Mr. Thomas presents no argument that these state
17

procedural rules are not independent and adequate.
Therefore, the unexhausted claims are procedurally defaulted and cannot be
considered unless Mr. Thomas demonstrates either cause and prejudice or a
fundamental miscarriage of justice. Mr. Thomas’ 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. Thomas 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. Thomas 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. Thomas argues with respect to claims 6 and 25 that counsel on direct appeal
was ineffective by failing to raise those claims as federal constitutional claims. He
apparently argues that other, unspecified, claims also were not fairly presented to the
state courts because counsel was ineffective.
Mr. Thomas is correct that ineffective assistance of counsel can constitute cause
to excuse a procedural default in some circumstances. See Edwards v. Carpenter, 529
U.S. 446, 451-52 (2000). However, Mr. Thomas cannot demonstrate cause for a
procedural default premised on ineffective assistance of counsel unless the ineffective
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assistance of counsel claim first is raised as an independent constitutional claim in state
court. See id. Mr. Thomas fails to demonstrate that he has fairly presented to the state
courts a claim that counsel on direct appeal was ineffective by failing to raise claims 6
and 25 as federal constitutional claims. Therefore, Mr. Thomas cannot rely on direct
appeal counsel’s alleged ineffectiveness to demonstrate cause for his procedural
default of claims 6 and 25. Mr. Thomas did raise and exhaust a claim that direct appeal
counsel was ineffective by failing to argue his retrial violated double jeopardy. The
underlying double jeopardy claim is claim 8 in the Amended Application. The Court will
defer consideration of whether Mr. Thomas can establish prejudice with respect to claim
8, and whether claim 8 is procedurally barred, until the parties brief the merits of that
claim.
Mr. Thomas next argues that he can demonstrate cause for his procedural
default of the claims deemed abandoned on appeal from the denial of his first Rule
35(c) motion based on his mental health status and ineffective assistance of counsel,
although it does not appear that Mr. Thomas was represented by counsel in the state
court postconviction proceedings. The Court is not persuaded by this argument
because Mr. Thomas fails to identify with particularity which of the twenty-five claims in
the Amended Application are among the fourteen claims the Colorado Court of Appeals
deemed abandoned on appeal from the denial of the first Rule 35(c) motion.
Furthermore, Mr. Thomas’ vague and conclusory allegation regarding his mental health
status is not sufficient to demonstrate cause for his procedural default. See Bishop v.
Colorado, 12 F. App’x 807, 809 (10th Cir. 2001) (allegation of chronic mental health
disorder is not enough to demonstrate cause to overcome procedural default). In
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addition, the Court is not persuaded that Mr. Thomas’ mental health status impeded his
ability to comply with the pertinent state procedural rules because he managed to fairly
present at least two claims to the Colorado Court of Appeals in the postconviction
proceedings.
With respect to the alleged ineffective assistance of counsel, Mr. Thomas
specifically relies upon the Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct.
1309 (2012). In Martinez, the Supreme Court held as follows:
Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review
collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
Id. at 1320.
It is not clear whether the holding in Martinez is applicable to this action because
Mr. Thomas does not identify with particularity any substantial ineffective assistance of
trial counsel claims to which Martinez arguably might apply. More importantly, the Court
finds that the holding in Martinez is not applicable because the abandoned claims were
defaulted on appeal from the denial of Mr. Thomas’ first Rule 35(c) motion and not in an
initial-review collateral proceeding. Prior to Martinez, the Supreme Court held that an
attorney’s errors on appeal from an initial-review collateral proceeding do not qualify as
cause for a procedural default, see Coleman, 501 U.S. at 757, and the Supreme Court
in Martinez reaffirmed that holding:
The rule of Coleman governs in all but the limited
circumstances recognized here. The holding in this case
does not concern attorney errors in other kinds of
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proceedings, including appeals from initial-review collateral
proceedings, second or successive collateral proceedings,
and petitions for discretionary review in a State’s appellate
courts. It does not extend to attorney errors in any
proceeding beyond the first occasion the State allows a
prisoner to raise a claim of ineffective assistance at trial,
even though that initial-review collateral proceeding may be
deficient for other reasons.
Martinez, 132 S. Ct. at 1320 (emphasis added, citation omitted). Although Mr. Thomas
apparently relies on the absence of counsel on appeal from the denial of his first Rule
35(c) motion rather than ineffective assistance of counsel, the end result is the same:
Mr. Thomas cannot rely on Martinez to demonstrate cause for his procedural default of
the abandoned claims because the claims were abandoned on appeal from the denial
of an initial-review collateral proceeding.
Mr. Thomas next argues that he can demonstrate cause with respect to claims
defaulted in the proceedings relevant to his second Rule 35(c) motion based on
ineffective assistance of counsel, a lack of transcripts, and his mental health status.
However, Mr. Thomas again fails to identify with particularity which of the twenty-five
claims in the Amended Application were defaulted in the state court proceedings
relevant to his second Rule 35(c) motion; he cannot demonstrate cause based on the
absence of counsel or the ineffective assistance of counsel in successive postconviction
proceedings, see Martinez, 132 S. Ct. at 1320; he fails to identify the transcripts he
lacked or why he did not have access to transcripts; and his vague and conclusory
allegation regarding his mental health status is not sufficient to demonstrate cause, see
Bishop, 12 F. App’x at 809. Furthermore, Mr. Thomas fails to explain how any of these
factors impeded his ability to comply with the pertinent Colorado procedural rule barring

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successive postconviction motions. Therefore, Mr. Thomas also fails to demonstrate
cause for whatever claims were procedurally defaulted in his successive Rule 35(c)
motion.
Finally, Mr. Thomas makes a brief and vague reference to actual innocence in
his reply to the Pre-Answer Response that apparently corresponds with claim 15 in the
Amended Application. Mr. Thomas contends in claim 15 that new evidence of the
identity of the shooter establishes his actual innocence. The new evidence to which Mr.
Thomas refers is a letter dated January 2012 that he received from a co-defendant,
Krishna Ali, Jr., stating in relevant part that Mr. Ali, Jr., knows Mr. Thomas is innocent.
(See ECF No. 11 at 3-7.)
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. 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.” Schlup v. Delo, 513 U.S. 298, 324 (1995). “The Schlup
standard is demanding and permits review only in the extraordinary case.” House v.
Bell, 547 U.S. 518, 538 (2006) (internal quotation marks omitted). Under Schlup,
“prisoners asserting innocence as a gateway to defaulted claims must establish that, in
light of new evidence, ‘it is more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.’” Id. at 536-37 (quoting Schlup, 513
U.S. at 327)).
The new evidence on which Mr. Thomas relies does not demonstrate this is the
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sort of extraordinary case in which a constitutional violation has probably resulted in the
conviction of one who is actually innocent. The Supreme Court has noted in the context
of a motion for a new trial premised on newly discovered evidence that “motions based
solely upon affidavits are disfavored because the affiants’ statements are obtained
without the benefit of cross-examination and an opportunity to make credibility
determinations.” Herrera v. Collins, 506 U.S. 390, 417 (1993). In this case, the only
newly discovered evidence Mr. Thomas has presented is an unsworn letter. The
reliability of the letter is further diminished by the fact that the letter was written a
number of years after Mr. Ali, Jr., was convicted and no longer subject to prosecution.
See Allen v. Yukins, 366 F.3d 396, 405 (6th Cir. 2004) (“[P]ostconviction statements by
codefendants are inherently suspect because codefendants may try to assume full
responsibility for the crime without any adverse consequences.”).
Finally, consideration of the evidence against Mr. Thomas also demonstrates this
is not the sort of extraordinary case in which a constitutional violation has probably
resulted in the conviction of one who is actually innocent. According to the Colorado
Court of Appeals, the evidence at Mr. Thomas’ second trial mirrored the following
evidence introduced by the prosecution at his first trial:
defendant said he was going to “merk” the victim on the
night of the shooting; defendant went to the victim’s house
armed with a .40 caliber handgun; the victim was shot twice
outside his house; empty shell casings from defendant’s gun
were recovered from the crime scene; and defendant tested
positive for gunshot residue.
(ECF No. 20-8 at 7-8.) The Court’s review of the state court record confirms the
accuracy of the state court’s summary of the evidence presented against Mr. Thomas.

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In light of this evidence, which the state court determined was sufficient to
sustain Mr. Thomas’ conviction for first degree assault, the newly discovered evidence
does not demonstrate it is more likely than not that no reasonable juror would have
found Mr. Thomas guilty of first degree assault beyond a reasonable doubt. The Court
also notes that Mr. Thomas was charged under a complicity theory and he fails to
demonstrate actual innocence of being a complicitor. See United States v. Sorrells, 145
F.3d 744, 752 (5th Cir. 1998) (because aiding and abetting issue was properly before the
jury, movant in §2255 case was not entitled to relief based on actual innocence unless
he demonstrates factual innocence under aiding and abetting theory of liability);
Diaz-Pabon v. Warden, 160 F. Appx. 251, 254 (3d Cir. 2005) (same); Young v. Goeke,
No. 93-2897, 1994 WL 175899 at *1 (8th Cir. May 11, 1994) (unpublished) (“[t]o the
extent that [defendant] challenges her liability as an accomplice, she is making a legal
argument and not a showing of actual innocence.”).
For these reasons, the Court finds that Mr. Thomas cannot demonstrate a failure
to consider his procedurally defaulted claims will result in a fundamental miscarriage of
justice. As a result, those claims are procedurally barred and must be dismissed.
In summary, the Court rejects Respondents’ argument that the Amended
Application is time-barred. With respect to exhaustion, Respondents concede that claim
23 is exhausted and the Court rejects Respondents’ argument that claims 7(d) and
20(a)(i) are unexhausted. Although the Court agrees that claim 8 is unexhausted, the
Court defers consideration of whether claim 8 is procedurally barred until the parties
brief the merits of that claim. The Court will dismiss all remaining claims as
unexhausted and procedurally barred. Accordingly, it is
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ORDERED that, with the exception of claims 7(d), 8, 20(a)(1), and 23,
Applicant’s claims in the Amended 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 claims. It is further
ORDERED that within thirty days of the filing of the answer Applicant may file a
reply, if he desires.
DATED June 5, 2015.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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