Parrino v. Archuleta et al
ORDER to dismiss in part, by Judge Lewis T. Babcock on 12/29/2014. (tscha, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02077-LTB
MICHAEL SALVATORE PARRINO,
LOU ARCHULETA, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER TO DISMISS IN PART
Applicant, Michael Salvatore Parrino, is a prisoner in the custody of the Colorado
Department of Corrections at the Fremont Correctional Facility in Cañon City, Colorado.
Mr. Parrino has filed pro se an 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 Larimer County District Court case number 00CR996. On August 4,
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 August
15, 2014, Respondents filed a Pre-Answer Response (ECF No. 8) arguing that claim
one is unexhausted, claim two is not cognizable and anticipatorily defaulted, and claim
three is anticipatorily defaulted. Respondents concede that the instant action is timely.
On September 3, 2014, Mr. Parrino filed “Habeas Applicant’s Reply to Respondent’s
Pre-Show Cause Answer” (ECF No. 9) (“the Reply”).
The Court must construe the Application and other papers filed by Mr. Parrino
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.
The factual background of Mr. Parino’s crimes and convictions was summarized
by the Colorado Court of Appeals in state court postconviction proceedings as follows:
Defendant was convicted of aggravated robbery, three
counts of first degree assault of a police officer, first degree criminal
trespass, and menacing, arising from an armed robbery of a
convenience store. As defendant left the store, he exchanged
gunfire with the responding officers. The court sentenced him to
four consecutive twenty-two-year terms of imprisonment on the
robbery and assault counts, pursuant to section 18-1.3-406, C.R.S.
2012 (formerly § 16-11-309), and to two terms of three years
imprisonment on the menacing and trespassing counts, to run
concurrently with the consecutive terms. Defendant’s convictions
and sentences were affirmed on direct appeal.
People v. Parrino, No. 10CA1576, slip op. at 1 (Colo. App. Jan. 3, 2013) (ECF No. 8-4
at 3.) On March 7, 2005, the Colorado Supreme Court denied Mr. Parrino’s petition for
writ of certiorari on direct appeal. (See ECF No. 8-11 at 2.)
On June 6, 2005, Mr. Parrino filed in the trial court a postconviction motion
pursuant to Colorado Crim. P. Rule 35(c), asserting ineffective assistance of counsel.
(See ECF No. 9-1 at 25; ECF No. 8-8 at 3.) On June 16, 2005, the trial court summarily
denied the Rule 35(c) motion. (See ECF No. 8-10 at 2.) On February 1, 2007, the
Colorado Court of Appeals affirmed in part, reversed in part, and remanded with
directions. (See ECF No. 8-8.) The Colorado Court of Appeals concluded that a
remand was warranted for the trial court to hold an evidentiary hearing on whether Mr.
Parrino’s trial counsel was ineffective because he labored under a conflict of interest
and to make findings of fact and conclusions of law. (Id. at 4.)
Mr. Parrino was appointed alternate defense counsel to represent him during the
remand proceedings. (ECF No. 8-8 at 8-9; ECF No. 8-4 at 4.) Following an evidentiary
hearing on the alleged conflict of interest, the trial court issued a written order denying
Mr. Parrino’s motion for postconviction relief, finding that Mr. Parrino’s ineffective
assistance of counsel claims lacked merit. (See ECF No. 8-7.) The trial court further
concluded that even if counsel’s performance was deficient, Mr. Parrino failed to show
he suffered any prejudice as a result because he failed to prove that the prosecution
extended the twenty-five-year plea offer during counsel’s representation, that the
prosecution would have extended such an offer, or that Mr. Parrino would have
accepted such an offer. (Id.) Mr. Parrino appealed, and the Colorado Court of Appeals
affirmed the trial court’s denial of his Rule 35(c) motion on January 3, 2013. (See ECF
No. 8-4.) On August 5, 2013, the Colorado Supreme Court denied Mr. Parrino’s petition
for writ of certiorari in the state court postconviction proceedings. (See ECF No. 8-2 at
On July 25, 2014, Mr. Parrino filed his § 2254 Application asserting three claims
for relief. In claim one, Mr. Parrino contends that he received ineffective assistance of
trial counsel based upon a financial conflict of interest. (ECF No. 1 at 5, 9-11.) In claim
two, he asserts that he received ineffective assistance of postconviction counsel
because counsel “deliberately sabotag[ed] my State Evidentiary Hearing.” (Id. at 123
17.) He explains that claim two is not an “official claim” but rather an “exception for a
federal evidentiary hearing” in this Court. (Id.) In claim two, Mr. Parrino also contends
that the prosecution engaged in misconduct during the remand proceedings. (Id.) In
claim three, Mr. Parrino alleges he is innocent of one of the counts for assault on a
peace officer because his conviction for two counts of assault on one peace officer was
“duplicitous.” (Id. at 18.)
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
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
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. Claim 1
As noted above, Mr. Parrino contends that trial counsel provided ineffective
assistance of counsel by preventing Mr. Parrino from accepting a 25-year plea
agreement because counsel wanted to earn more money by litigating the case at trial.
Respondents argue that claim 1 is not exhausted because, although the Colorado Court
of Appeals resolved the claim in the postconviction proceedings, Mr. Perrino did not
include the claim in his postconviction petition for writ of certiorari to the Colorado
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 (D.
Colo. Feb. 28, 2011). As noted above, Respondents concede that the Colorado Court
of Appeals denied relief on the claim.
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 1 is exhausted.
B. Claim 2
Mr. Parrino alleges that claim 2 is “not an official claim” but rather a “Cause and
Prejudice Exception to the Applicant’s failure to develop the factual basis of his Federal
Constitutional Claim of ineffective assistance of trial counsel due to a financial conflict of
interest.” (ECF No. 1 at 11-12.) Within claim 2, Mr. Parrino challenges the conduct of
both postconviction counsel and the prosecution during postconviction remand
proceedings. Respondents contend that claim 2 is not cognizable as a federal habeas
claim and that the claim is anticipatorily defaulted.
The Court disagrees with Respondents’ attempt to characterize claim 2 as a
substantive claim for habeas relief. Construed liberally, the allegations within claim 2
offer grounds for Mr. Parrino’s request for an evidentiary hearing by this Court in relation
to claim 1. Until the Application has passed initial judicial review, Mr. Parrino’s request
for an evidentiary hearing under 28 U.S.C. § 2254(e)(2) will be denied as premature.
C. Claim 3
Mr. Parrino argues in claim 3 that his two convictions for assault upon a peace
officer were “duplicitous.” The Court liberally construes the allegations in claim 3 as
asserting a double jeopardy claim. Respondents contend that claim 3 is unexhausted
because although he raised a similar claim on direct appeal, he did not fairly present the
claim as a federal constitutional claim in the Colorado Court of Appeals.
The Court has reviewed Mr. Parrino’s opening brief on direct appeal and finds
that the claim regarding his convictions for two counts of assault were not labeled or
otherwise identified as a federal claim. Thus, Mr. Parrino does not demonstrate that he
fairly presented claim 3 to the Colorado Court of Appeals as a federal constitutional
claim. Therefore, the Court finds that Mr. Parrino fails to satisfy his burden of
demonstrating claim 3 is exhausted.
IV. PROCEDURAL DEFAULT
Although Mr. Parrino failed to exhaust state remedies for claim 3, the Court may
not dismiss claim 3 for failure to exhaust state remedies if Mr. Parrino no longer has an
adequate and effective state remedy available to him. See Castille, 489 U.S. at 351.
Respondents contend that Mr. Parrino no longer has an adequate and effective state
remedy available to him, and that claim 3 is anticipatorily defaulted because Rule
35(c)(3)(VII) of the Colorado Rules of Criminal Procedure bars Mr. Parrino from raising
claim 3 in a new postconviction motion. Rule 35(c)(3)(VII) provides that, with limited
exceptions not applicable to Mr. Parrino’s claim 3, “[t]he court shall deny any claim that
could have been presented in an appeal previously brought or postconviction
proceeding previously brought.” Thus, it is clear that Mr. Parrino may not return to state
court to pursue his unexhausted claim.
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
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
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. Parrino’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. Parrino fails to demonstrate or even argue that Rule 35(c)(3)(VII) of the
Colorado Rules of Criminal Procedure is not independent and adequate. In any event,
the Court finds 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. Rules 35(c)(3)(VII) to reject claims that could have been raised in a
prior postconviction motion). Therefore, claim 3 is procedurally defaulted and cannot be
considered unless Mr. Parrino demonstrates either cause and prejudice or a
fundamental miscarriage of justice.
To demonstrate cause for his procedural default, Mr. Parrino 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. Parrino 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. Parrino makes no attempt to demonstrate cause and prejudice with respect
to claim 3. However, he may be contending that a failure to consider claim 3 will result
in a fundamental miscarriage of justice because he asserts his “actual innocence to
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. Mendoza’s conclusory assertion that he is innocent 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 3 is procedurally barred and must be
In summary, Respondents do not raise the one-year limitation period as an
affirmative defense. The Court rejects Respondents’ argument that claim 1 is
unexhausted. The Court also rejects Respondents’ argument that claim 2 is not
cognizable as a federal claim and is anticipatorily defaulted because claim 2 is not an
actual claim but rather a request for an evidentiary hearing. Finally, claim 3 will be
dismissed as unexhausted and procedurally barred. Accordingly, it is
ORDERED that claim 3 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 claim. It is further
ORDERED that within thirty days of the filing of the answer Applicant may file a
reply, if he desires.
DATED December 29, 2014.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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