Vreeland, II v. Archuleta et al

Filing 46

ORDER to Dismiss in Part and for Answer. ORDERED that Claims Six through Nine, Eleven through Twenty-Six, Twenty-Seven (a), Twenty-Nine, and Thirty are dismissed as procedurally barred from federal habeas review. ORDERED that Claims Four, Thirty-One, and Thirty-Two are dismissed as not cognizable in a federal habeas action. Signed by Judge Philip A. Brimmer on 12/21/15. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02175-PAB
DELMART E.J.M. VREELAND, II,
Applicant,
v.
DAVID ZUPAN, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO DISMISS IN PART AND FOR ANSWER

I. BACKGROUND1
Applicant is in the custody of the Colorado Department of Corrections (“DOC”) at
the Colorado Territorial Correctional Facility in Cañon City, Colorado. Applicant initiated
this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254, Docket No.1. Magistrate Judge Gordon P. Gallagher reviewed the
Application, determined it failed to comply with Fed. R. Civ. P. 8, and directed Applicant
to file an Amended Application, which he did on September 29, 2014. See Docket No.
8. In an order also entered on September 29, Magistrate Judge Boyd N. Boland
directed 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

1

A prior version of this order was originally prepared and signed on June 17,
2015. However, due to a clerical error, the order was not docketed.

court remedies under 28 U.S.C. § 2254(b)(1)(A) if Respondents intended to raise either
or both of those affirmative defenses in this action.
After granting both parties extensions, Respondents filed a Pre-Answer
Response, Docket No. 17, on October 30, 2014, and Applicant f iled a Reply, Docket
No. 21, on December 22, 2014. Magistrate Judge Gordon P. Gallagher then reviewed
the Response and Reply and directed Applicant to respond and show cause why the
action should not be dismissed as a mixed petition pursuant to Rose v. Lundy, 455 U.S.
509, 522 (1982). On March 4, 2015, counsel entered an appearance on Applicant’s
behalf and requested a ninety-day extension of time to respond to the Order to Show
Cause, but he was granted only sixty days to respond. Applicant, through counsel, filed
a Response to the Order to Show Cause, Docket No. 32, on May 1, 2015, and
Respondents filed a Reply to the Response, Docket No. 34, on May 19, 2015.
A. Mixed Petition/Exhaustion
The Court first will address the mixed petition issue. In the January 7, 2015
Order to Show Cause, Applicant was informed as follows:
Pursuant to 28 U.S.C. § 2254(b)(1), an application f or a writ of
habeas corpus may not be granted unless it appears that the applicant
has exhausted state remedies or that no adequate state remedies are
available or effective to protect the applicant's rights. See O'Sullivan v.
Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State Penitentiary, 36
F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is satisfied
once the federal claim has been presented fairly to the state courts. See
Castille v. People, 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 satisf y the fair
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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, 365-66
(1995) (per curiam).
“The exhaustion requirement is not one to be overlooked lightly.”
Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). A state
prisoner bringing a federal habeas corpus action bears the burden of
showing that he has exhausted all available state remedies. See Miranda
v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992). Even if state remedies
properly have been exhausted as to one or more of the claims presented,
a habeas corpus application is subject to dismissal as a mixed petition
unless state court remedies have been exhausted for all of the claims
raised. See Rose v. Lundy, 455 U.S. 509, 522 (1982); Harris v.
Champion, 48 F.3d 1127, 1133 (10th Cir. 1995).
Applicant seeks a waiver of the exhaustion requirements based on
his alleged inability to obtain state court records and the state cou rt's
failure to acknowledge his Rule 35© postconviction motion that he
allegedly attempted to file on three occasions, specifically, at least on April
2, 2014. Applicant agrees that a postconviction motion would not be
time-barred in state court and states that the postconv iction motion he
submitted on April 2, 2014, contains all of the thirty-two claims he raises in
this action.
Applicant has presented at least ten inef fective assistance of trial
counsel claims and twenty-four ineffective assistance of appellate counsel
claims as sub-claims to Claims Twenty-Seven and Twenty-Eight in this
action. See Docket No. 1-2 at 91-120. Given Applicant concedes that a
postconviction motion is timely, and he has submitted such a motion to
the Douglas County District Court, which includes all thirty-four ineffective
assistance of counsel claims, the Court finds that these claims, which are
asserted in Claims Twenty-Seven and Twenty-Eight of this action, are
unexhausted. Because Claims Twenty-Seven and Twenty-Eight are
detailed, and Applicant's concern about being foreclosed in future
postconviction motions, without having access to the state court record, is
only speculative, the Court finds no basis for waiving the exhaustion
requirement for these claims.
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This action, therefore, is a mixed petition. See Rose, 455 U.S. at
522; Harris, 48 F.3d at 1133. In order to avoid dismissal of a habeas
application as a mixed petition, an applicant may elect to dismiss any
unexhausted claims and pursue only those claims for which state
remedies already have been exhausted. If an applicant wishes to pursue
all of his claims in federal court the habeas action will be dismissed
without prejudice so that the applicant may exhaust state remedies.
Applicant then may file a new application for a writ of habeas corpus once
all of his claims are exhausted.
A decision to dismiss unexhausted claims and pursue immediately
only exhausted claims likely will bar an applicant from seeking review of
the unexhausted claims in a second or successive application. See 28
U.S.C. § 2244(b). Alternatively, if an applicant elects to dismiss the entire
action and return to state court to exhaust the unexhausted claims before
seeking relief in federal court, the one-year limitation period in § 2244(d)
will be applied to any new federal court action the applicant seeks to file.
Furthermore, the time during which a 28 U.S.C. § 2254 application is
pending in this Court does not toll the one-year limitation period in
§ 2244(d). See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding
that “an application for federal habeas corpus review is not an ‘application
for State post-conviction or other collateral review’ within the meaning of
28 U.S.C. § 2244(d)(2)” and “therefore did not toll the limitation period
during the pendency of [an applicant’s] first federal habeas petition”). The
fact that the instant action currently is timely under § 2244(d) does not
mean that any future action filed by Applicant will be timely.
Show Cause Order, Docket No. 22, at 6-9.
In response to the Order to Show Cause, Applicant, through counsel, contends
the unexhausted claims should be excused because he has met with “procedural snarls
and obstacles” in litigating his claims in state court, which has made exhaustion of his
claims “impractical.” May 1, 2015 Resp., Docket No. 32, at 3. Applicant f urther asserts
that he mailed a Rule 35© motion to the state district court on April 3, 2014, but
received no response from the court. Id. at 5. Applicant also asserts that he then sent
a motion for immediate ruling and a letter to the court on May 13, 2014, but apparently
did not receive a response to either the motion or letter, and to date the court has not
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taken any action. Id. at 5-6. Applicant relies on Harris v. Champion, 15 F.3d 1538,
1554-57 (10th Cir. 1994), for his argument that the exhaustion requirement should be
excused.
“[I]nexcusable or inordinate delay” by the state in adjudicating a direct criminal
appeal “may make the state process ineffective to protect the petitioner’s rights and
excuse exhaustion.” Harris v. Champion, 15 F.3d 1538, 1555 (10th Cir. 1994) (internal
quotation marks and citation omitted). “[T]here is a rebuttable presumption that the
State’s process is not effective and, therefore, need not be exhausted, if a direct
criminal appeal has been pending for more than two years.” Id. at 1546. The two-year
presumptive time is not “inflexible” and may be disregarded if warranted. Id. at 1547.
Pursuant to Harris v. Champion, 48 F.3d 1127, 1132 (10th Cir. 1995), a delay of
more than two years gives rise to a rebuttable presumption of the “(i) ineffectiveness of
state appellate procedures sufficient to excuse exhaustion on the petitioner’s underlying
claims of unconstitutional trial error, and (ii) prejudice necessary to support an
independent constitutional claim of deprivation of an effective direct appeal because of
delay.” However, the two-year delay must be attributable to the state. Id.
In Vreeland v. Davis, No. 12-cv-02039-BNB, 2013 WL 709068 (D. Colo. Feb. 26,
2013), this Court addressed Applicant’s inordinate delay claim regarding his direct
appeal and, based on Harris, found no unreasonable delay to support an independent
due process claim, see id., Docket No. 32 at 8-9. Applicant’s direct appeal now is final
and any claims he raised in the direct appeal are exhausted.

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The only alleged delay at issue now is Applicant’s claim that he prepared and
addressed a Rule 35© motion on April 2, 2014 which, according to the DOC mail log,
was sent to the Douglas County District Court on April 3, 2014, as was a subsequent
inquiry about the motion sent on May 13, 2014. See May 1, 2015 Resp., Docket No.
32, at 5-6.
It is not clear whether an unreasonable delay in state postconviction proceedings
can support an independent due process claim . Furthermore, there is no federal
constitutional right to postconviction review in the state courts. See Pennsylvania v.
Finley, 481 U.S. 551, 557 (1987). Even if Applicant could assert an inordinate or
inexcusable delay in the processing of a postconviction motion, his procedural snarls
and obstacles claims are meritless.
First, on March 4, 2015, counsel entered a notice of appearance in this case on
Applicant’s behalf. If mailing a Rule 35© postconviction motion to the Douglas County
District Court remained an issue on March 4, 2015, then Applicant’s counsel could hav e
delivered the motion for filing. Furthermore, Applicant fails to assert why he did not
attempt, after May 13, 2014, to resend his Rule 35© postconviction motion to the
Douglas County District Court, especially after this Court found in the January 7, 2015
Order to Show Cause that his arguments provided no basis for waiving the exhaustion
requirement for Claims Twenty-Seven (b)-(e) and Twenty-Eight. See Docket No. 22 at
8. Moreover, Applicant has not demonstrated that the motion and inquiry were ever
received by the Douglas County District Court and the state is responsible for any
delay.

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Second, Applicant’s denial of trial court records and trial transcripts claim does
not demonstrate that his state postconviction litigation has been rendered ineffective.
As Magistrate Judge Gallagher found in the January 7 Order, Applicant’s concern about
being foreclosed in future postconviction motions, without having access to the state
court record, is only speculative. Applicant fails to state any specific reason why trial
court records or transcripts are necessary to attempt to resubmit his Rule 35© motion
or to state ineffective assistance of counsel claims in a postconviction motion.
Applicant also was present at the trial and the thirty-four claims of ineffective assistance
of counsel presented in this action are sufficiently detailed.
Nothing in Applicant’s Response supports a finding of inordinate and unjustified
delay by the State. Applicant, therefore, has failed to provide a sufficient basis for
waiving the exhaustion requirement with respect to Claims Twenty Seven (b)-(e) and
Twenty Eight. Pursuant to Applicant’s request that if the Court determines the
exhaustion requirement may not be excused he be allowed to proceed with his other
claims, the Court will dismiss Claims Twenty-Seven (b)-(e) and Twenty-Eight as
unexhausted and proceed to address the remaining claims.
B. Remaining Claims
The remaining claims are as follows:
1)

Forced to jury trial without counsel and notification in violation of
Sixth Amendment;

2)

Forced by trial court to trial without counsel even though
incompetent in violation of due process rights;

3)

Denial of substantive competency claim by trial court without
hearing in violation of due process rights;
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4)

Trial not held within six months of arrest in violation of speedy trial
rights;

5)

Jury instructions did not include the date and location of the crime in
violation of due process rights;

6)

Trial court and prosecutorial misconduct during trial in violation of
Fifth, Sixth, and Fourteenth Amendment;

7)

Trial court made erroneous rulings excluding exculpatory evidence
in violation of due process rights;

8)

Prosecution’s reference to Applicant’s right to testify, when
Applicant’s questioning of a witness was found to be testimony by
Applicant, was a violation of First, Fifth, and Fourteenth
Amendment and the right to remain silent;

9)

Prosecution entered evidence of alleged aliases and other criminal
cases, which the trial court ignored or blamed on Applicant, in
violation of due process rights;

10)

Trial court failed to limit the use of certain evidence by the jury
regarding the age of state witnesses when they first met Applicant
in violation of the Sixth and Fourteenth Amendments;

11)

Trial court allowed evidence concerning sexual relations between
Applicant and two individuals that insinuated individuals were under
eighteen in violation of the Sixth and Fourteenth Amendments;

12)

Trial court allowed a nonexpert to testify as an expert about the
counter and clock in a Kodak camera and Applicant was not
prepared to address the testimony in violation of the Sixth and
Fourteenth Amendments;

13)

The fruits of an illegal search and seizure of Applicant’s home were
admitted into evidence in violation of the Fourth Amendment;

14)

The charging document or information failed to state the essential
culpable mental state elements of the offense in violation of due
process rights;

15)

The evidence was insufficient to support two convictions for
exploitation in violation of federal due process;

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16)

The evidence was insufficient to support a sexual assault
conviction in violation of due process rights;

17)

The absence of a “non-consent” element from the sexual assault
charge was error and violated the Sixth and Fourteenth
Amendments;

18)

Subjection to multiple punishment for the same offense in violation
of the Fifth and Fourteenth Amendments;

19)

Failure of the trial court to instruct the jury on statutory affirmative
defense in violation of Sixth and Fourteenth Amendments;

20)

Jury instructions regarding child prostitution were nonsensical and
did not support a life sentence in violation of due process rights;

21)

Trial judge refused to recuse in spite of proper motions to do so in
violation of Fifth, Sixth, and Fourteenth Amendments;

22)

The evidence was insufficient to support two habitual criminal
charges in violation of federal Constitution;

23)

The habitual criminal information used against Applicant is fatally
defective and amendment of the information midtrial was improper
and prejudicial in violation of the Fifth, Sixth, and Fourteenth
Amendment rights;

24)

Admission of inadmissable hearsay at habitual trial hearing, which
the trial court relied on, was in violation of the Fifth and Fourteenth
Amendments;

25)

Imposition of a habitual criminal sentence by the trial court under
C.R.S. § 18-1.3-801 was in violation of right to trial by jury and
federal due process clause;

26)

No requirement to trial by jury in the habitual criminal statute
violates Colorado Constitution, the United States Constitution, and
the Sixth and Fourteenth Amendments;

29)

State’s direct appeal and postconviction review rules restrict the
raising of all federal rights claims in violation of the federal
constitution;

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30)

Trial court’s statement regarding Al-Qaeda and terrorists on the
first day of the trial, while pointing at Applicant, violated due
process rights;

31)

Department of Corrections has denied Applicant’s access to State
court records, discoveries, court transcripts, and any of the
“evidences” admitted in the criminal case in violation of due
process and equal protection rights; and

32)

Actual Innocence.

II. STANDARDS OF REVIEW
The Court must construe liberally the Application and Reply because Applicant
submitted these filings pro se. 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 does not act as
Plaintiff’s advocate. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009)
(citing Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)).
Respondents concede that the action is timely and Claims One through Three,
Five, and Ten are exhausted, but contend that Claims Six through Nine, Eleven through
Twenty-Six, Twenty-Seven (a), Twenty-Nine, and Thirty are procedurally defaulted.
Respondents also argue that Claims Four, Thirty-One, and Thirty-Two are not
cognizable habeas claims and do not invoke the jurisdiction of the Court.
III. ANALYSIS OF CLAIMS
A. Cognizable Claims
1. Claim Four
In Claim Four, Applicant asserts that he was arrested in Iowa based on a warrant
and information issued by Douglas County, Colorado. Docket No. 8 at 15. Applicant
further contends that he was held from October 2004 until November 2006, over six
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months, which prejudiced him due to lost evidence, death of two witnesses, and inability
of witnesses to recall certain information when questioned at trial. Id. Respondents
argue that Claim Four is not cognizable in a federal habeas action because the claim
asserts only a violation of Colorado’s state speedy trial statute and rule. Docket No. 17
at 12. Applicant, in his Reply, asserts that “as can be seen by the actual words of Claim
4, the speedy trial violation being raised” includes a federal speedy trial violation in the
context of “clearly established extradition law.” Docket No. 21 at 14-15.
The Court has reviewed Applicant’s opening brief on appeal, Docket No. 17-4,
and found that his speedy trial claim was presented to the Colorado Court of Appeals
(“CCA”) as violations of Colo. R. Crim. P. 48 and Colo. Rev. Stat. § 18-1-405(1). Id. at
1-6. A review of the CCA’s decision regarding Applicant’s speedy trial claim clearly
shows that the claim was addressed as a violation of a state statutory right to a speedy
trial. Docket No. 17-2 at 16-19. Nothing Applicant asserted in state court or in his claim
in this action states a violation of his speedy trial rights under the Sixth Amendment.
As for a speedy trial claim based on extradition law, the Tenth Circuit has held
that the “rights created by the IADA [Interstate Agreement on Detainees Act] are
statutory, not fundamental, constitutional, or jurisdictional in nature.” Guesthouse v.
United States, 655 F.2d 1032, 1034 (10th Cir. 1981), cert. denied, 455 U.S. 926 (1982).
Therefore, an alleged IADA violation might be proper grounds for habeas relief only if
“special circumstances” exist. Knox v. Wyoming Dep’t of Corrections State Penitentiary
Warden, 34 F.3d 964, 967 (10th Cir. 1994) (quoting Guesthouse, 655 F.2d at 1034,
cert. denied, 455 U.S. 926 (1982)); cf. Reed v. Farley, 512 U.S. 339, 353 (1994) (an

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argument that a petitioner is entitled to habeas relief because the IADA’s speedy trial
provision “effectuates a constitutional right” is “insubstantial” if there is no showing of
prejudice as is “required to establish a violation of the Sixth Amendment Speedy Trial
Clause.”) Nothing Applicant asserts in this action or in his state court filings sets forth
special circumstances or prejudice that would invoke the IADA’s speedy trial provision.
The Court, therefore, will dismiss Claim Four as not cognizable in a federal
habeas action.
2. Claim Thirty-One
Applicant asserts that he has been denied the ability to access any state court
records, discovery, transcripts, and evidence required to prepare and litigate
postconviction pleadings. Docket No. 8 at 36. Applicant also asserts that he has been
denied the right to counsel either retained or appointed, app arently in his postconviction
proceeding. Id. Respondents argue that Claim Thirty-One is not cognizable because
there is no general federal constitutional right to postconviction review in state court.
Docket No. 17 at 12-13. In the Reply, Applicant asserts that this claim is not a claim of
error, but of denial of access to the courts. Docket No. 21 at 15-16.
Pursuant to Pennsylvania v. Finley, 481 U.S. 551, 557 (1987), there is no f ederal
constitutional right to postconviction review in the state courts. 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

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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”).
Applicant’s claim that he was denied the ability to access any state court records,
discovery, transcripts, evidence required to prepare and litigate postconviction
pleadings, and appointment of counsel is not a per se federal constitutional claim and
challenges the State’s postconviction remedy. Furthermore, as found above, the
alleged denial of access to the courts based on Applicant’s inability to obtain state court
records, discovery, transcripts, and evidence is speculative. The Court, therefore, will
dismiss Claim Thirty-One as not cognizable in a federal habeas action.
3. Claim Thirty-Two
Applicant asserts he is actually innocent of all charges and the state court record
demonstrates this innocence. Docket No. 8 at 36. Respondents arg ue that this is not a
cognizable, free standing claim, especially in a noncapital case such as this one.
Docket No. 17 at 13-14. In his Reply, Applicant contends his innocence claim is not a
stand alone claim, but is supported by his thirty other claims. Docket No. 21 at 17.
“Claims of actual innocence are subject to an exacting standard, and in most
cases, are simply not cognizable through habeas petitions.” See Allen v. Beck, 179 F.
App’x 548, 550 (10th Cir. 2006). Generally, claims of actual innocence are not
constitutional claims and do not provide a basis for federal habeas relief unless
grounded in or connected to an independent constitutional claim . See Herrera v.
Collins, 506 U.S. 390 (1993); LaFevers v. Gibson, 238 F.3d 1263, 1265 n.4 (10th Cir.
2001) (assertion of actual innocence “does not, standing alone, support the granting of

13

the writ of habeas corpus”); Sellers v. Ward, 135 F.3d at 1338. W hile innocence may
be material when an applicant is subject to threshold obstacles, such as the statute of
limitations or procedural default, innocence alone does not justify the issuance of a writ
of habeas corpus. Schlup v. Delo, 513 U.S. 298, 315 (1995) (holding that a habeas
applicant’s “claim of innocence does not by itself provide a basis for relief”).
Applicant bases his innocence claim on a conclusory statement that the state
court record and his other thirty claims demonstrate his innocence. Claim Thirty-Two,
therefore, is a stand alone claim of actual innocence and fails to provide a basis for
federal habeas relief that is grounded in or connected to an independent constitutional
claim. Herrera, 506 U.S. 390. Such a freestanding claim of actual innocence is not
available in a noncapital case. Allen, 179 F. App’x at 551.
As a result, the Court will dismiss Claim Thirty-Two as not cognizable in a federal
habeas action.
B. Procedurally Defaulted Claims
1. Claims Six through Nine, Eleven through Twenty-Six, TwentySeven (a), Twenty-Nine, and Thirty
Respondents argue that these claims are procedurally defaulted because
Applicant could have, but did not, fairly present them in his direct appeal, and state
rules preclude him from raising them in the future. Docket No. 17 at 19. Respondents
further argue that Applicant initially submitted an opening brief that was 39,010 words
long, which does not comply with the Colo. App. Rule limit of 9,500 words. Id. The
brief was stricken, but the CCA granted Applicant leave to file a brief not to exceed
13,500 words, which he did, and the CCA accepted the am ended brief. Id.
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Respondents also assert that Claims Eleven, Twenty-One, Twenty-Seven (a), and
Thirty were not presented in either the compliant or the noncompliant brief, but
according to state law are claims that are properly presented and considered on direct
appeal. Id. at 21.
Respondents contend that, because Applicant could hav e but did not fairly
present these claims on direct appeal, the claims now are procedurally defaulted
pursuant to Colo. R. Crim. P. 35(c)(3)(VII), which requires the Colorado courts to
dismiss any claim that could have been raised on direct appeal. Respondents f urther
contend that the word limitation is an independent and adequate state rule that
supports a procedural default pursuant to Lebere v. Abbott, 732 F.3d 1224, 1233 (10th
Cir. 2013) (recognizing this rule as proper basis of procedural default); Burton v.
Zavaras, 340 F. App’x 453, 454-55 (10th Cir. 2009), and Williams v. Broaddus, 331 F.
App’x 560, 563 (10th Cir. 2009). Id. at 23-24.
In his Reply, Applicant argues that he fairly presented his opening brief along
with the motion for enlargement of the word limit in satisfaction of the law. Docket No.
21 at 18. Applicant further argues that the CCA chose to pass on the issues raised in
the original brief for procedural reasons and, in light of Colorado Appellate Rule 51.1,
the State now has to waive its “right to claim non-exhaustion of these claims.” Id.
Applicant contends that his 39,000 word brief was compliant because the law “simply
states that opening briefs are to be no more than 9,500 words without the court’s
permission, [and] in this case, Petitioner requested that permission by presenting the
claims to the court.” Id. at 21. Applicant further contends that the CCA forced appellate

15

counsel to cut the brief, which resulted in nonexhaustion and ineffective assistance of
counsel. Id. Finally, Applicant contends that the State of Colorado may not refuse to
hear claims presented to it based on an alleged violation of a word limit and then argue
these claims are now procedurally defaulted. Id.
Pursuant to 28 U.S.C. § 2254(b)(1), an application f or a writ of habeas corpus
may not be granted unless it appears that the applicant has exhausted state remedies
or that no adequate state remedies are available or effective to protect the applicant’s
rights. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). T he exhaustion requirement is
satisfied once the federal claim has been presented fairly to the state courts. See
Castille v. People, 489 U.S. 346, 351 (1989).
As a general rule, federal courts “do not review issues that have been defaulted
in state court on an independent and adeq uate 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); see
also Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007). Application of this
procedural default rule in the habeas corpus context is based on comity and federalism
concerns. Coleman v. Thompson, 501 U.S. 722, 730 (1991).
A federal court may proceed to the merits of a procedurally defaulted habeas
claim if the applicant establishes either cause for default and actual prejudice or
fundamental miscarriage of justice when the merits of a claim are not reached. See
Demarest v. Price, 130 F.3d 922, 941 (10th Cir. 1997). Applicant’s pro se status does

16

not exempt him from the requirement of demonstrating cause for the default and actual
prejudice or failure as a result of the alleged violation of federal law or demonstrating
that failure to consider the claims will result in a fundamental miscarriage of justice.
See Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994).
To demonstrate cause for his procedural default, Applicant 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). Ineffective assistance of counsel
may establish cause excusing a procedural default. Jackson, 143 F.3d at 1319.
A page limitation does not constitute cause for Applicant’s default of Claims Six
through Nine, Eleven through Twenty-Six, Twenty-Seven (a), Twenty-Nine, and Thirty.
See Trujillo v. Ploughe, 475 F. App’x 261, 266-67 (10th Cir. 2012). In Trujillo, the Tenth
Circuit relied on Nielsen v. Price, 17 F.3d 1276 (10th Cir. 1994), for the basis of its
decision. Id. Nielson found that “pro se parties [must] follow the same rules of
procedure that govern other litigants.” Nielsen, 17 F.3d at 1277. Under Colorado law, a
page limitation is an independent and adequate state procedural ground for finding
procedural default. Applicant, therefore, has failed to show cause for the procedural
default of Claims Six through Nine, Eleven through Twenty-Six, Twenty-Seven (a),
Twenty-Nine, and Thirty. He has not demonstrated that some objective factor external

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to the defense impeded counsel’s efforts to comply with the State’s procedural rule and
that he has presented this argument to the state courts as an independent claim .
To show prejudice, an applicant must demonstrate that he suffered “actual
prejudice as a result of the alleged violation of federal law.” Coleman, 501 U.S. at 750.
Nothing Applicant asserts demonstrates actual prejudice based on his failure to provide
a compliant brief that included Claims Six through Nine, Eleven through Twenty-Six,
Twenty-Seven (a), Twenty-Nine, and Thirty.
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 “substantial claim that constitutional error has caused the conviction of an
innocent person is extremely rare.” Schlup v. Delo, 513 U.S. 298, 324 (1995). A
fundamental miscarriage of justice provides only “a narrow exception to the cause
requirement where a constitutional violation has probably resulted in the conviction of
one who is actually innocent of the substantive offense.” Dretke v. Haley, 541 U.S.
386, 393 (2004) (citations and internal quotation marks omitted).
In order to demonstrate a fundamental miscarriage of justice, Applicant first must
“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.” Schulp, 513 U.S. at 324. Applicant then
must demonstrate “that it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence.” Id. at 327.

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In Claim Thirty-Two, Applicant asserts that he is actually innocent of all charges
filed against him and all other claims support his innocence. See Docket Nos. 8 at 36
and 21 at 17. Applicant, however, relies only on the evidence in the state court record
for his claim of innocence and presents no new reliable evidence as a basis for his
innocence. Id. Applicant, therefore, fails to demonstrate a fundamental miscarriage of
justice.
Because Applicant has failed to show cause for the default and actual prejudice
as a result of the alleged violation of federal law or demonstrate that the failure to
consider his claim will result in a fundamental miscarriage of justice, Claims Six through
Nine, Eleven through Twenty-six, Twenty-Seven (a), Twenty-Nine, and Thirty will be
dismissed as procedurally defaulted and barred from federal habeas review.
IV. CONCLUSION
After preliminary consideration of the Application for a Writ of Habeas Corpus
filed pursuant to 28 U.S.C. § 2254 [Docket No. 1], it is
ORDERED that Claims Six through Nine, Eleven through Twenty-Six, TwentySeven (a), Twenty-Nine, and Thirty are dismissed as procedurally barred from federal
habeas review. It is further
ORDERED that Claims Four, Thirty-One, and Thirty-Two are dismissed as not
cognizable in a federal habeas action. It is further
ORDERED that Claims Twenty-Seven (b)-(e) and Twenty-Eight are dismissed as
unexhausted. It is further

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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 Claims One through Three, Five, and Ten. It is further
ORDERED that within thirty days of the filing of an answer Applicant may file a
reply if he desires. It is further
ORDERED that, within thirty days from the date of this Order, the
Respondents shall file with the Clerk of the Court, in electronic format if available, a
copy of the complete record of Applicant’s state court proceedings in Douglas County
District Court case number 04CR706, including all documents in the state court file and
transcripts of all proceedings conducted in the state court, including physical evidence
that is relevant to the asserted claims. It is further
ORDERED that the Clerk of the Court is directed to send copies of this Order to
the following:
(1)

Clerk of the Court
Douglas County District Court
4000 Justice Way Ste. 2009
Castle Rock, Colorado 80109; and

(2)

Court Services Manager
State Court Administrator’s Office
101 W. Colfax, Ste. 500
Denver, Colorado 80202.

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DATED December 21, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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