Cousett v. People of Colorado, The et al
ORDER to Dismiss in Part and for Answer, by Magistrate Judge Michael E. Hegarty on 1/15/2015. ORDERED that claim two of re: 8 Amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, filed by Preston Cousett, is DISMISSED WITH PREJUDICE as procedurally barred. ORDERED that Respondents shall file an Answer to claim one of the Amended Application within 30 days of this Order. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Michael E. Hegarty
Civil Action No. 14-cv-02615-MEH
PAM PLOUGHE, Warden, Skyline Corr. Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER TO DISMISS IN PART AND FOR ANSWER
Applicant, Preston Cousett, is in the custody of the Colorado Department of Corrections
(CDOC) at the Skyline Correctional Center in Canón City, Colorado. He has filed an Amended
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 8) challenging the
validity of his convictions and sentence imposed in the District Court of El Paso, County, Colorado.
Mr. Cousett has paid the $5.00 filing fee.
On November 17, 2014, April 14, 2014, Magistrate Judge Gordon P. Gallagher directed
Respondents to file a pre-answer response addressing the affirmative defenses of timeliness under
28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A).
Respondents submitted a Pre-Answer Response (ECF No. 16) on November 24, 2014. Applicant
filed a Reply (ECF No. 17) on December 11, 2014.
The Court construes Mr. Cousett’s filings 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 act as an advocate for pro se litigants. See Hall,
935 F.2d at 1110. For the reasons stated below, the Court will dismiss the Application, in part.
I. Background and State Court Proceedings
In November 2007, Mr. Cousett was convicted by a jury in El Paso County District Court
Case No. 04CR1331 of numerous counts of aggravated robbery, attempted robbery, menacing, and
theft, as well as several crime of violence counts. (ECF No. 16-1, at 6-20). He was sentenced to an
aggregate prison term of 20 years with the CDOC. (Id. at 26-27).
Mr. Cousett’s convictions and sentences were affirmed on direct appeal in People v. Cousett,
No. 08CA0356 (Colo. App. Sept. 22, 2011) (unpublished) (Cousett I). (ECF No. 16-7). The
Colorado Supreme Court denied Applicant’s petition for certiorari review on February 27, 2012.
On August 13, 2012, Mr. Cousett filed a state post-conviction motion for sentence
reconsideration and reduction of mandatory sentence. (ECF No. 16-1, at 24). The state district court
denied the motion on August 20, 2012. (Id.). Applicant did not appeal the order.
On November 13, 2012, Mr. Cousett filed a motion for post-conviction relief pursuant to
Colo. Crim. P. Rule 35(c), which was denied summarily by the state district court on November 20,
2012. (Id. at 24; see also ECF No. 16-4). The Colorado Court of Appeals affirmed the district
court’s order in People v. Cousett, No. 13CA0007, Colo. App. July 31, 2014) (unpublished) (Cousett
II) (ECF No. 16-2). Applicant did not seek certiorari review in the Colorado Supreme Court.
Mr. Cousett filed his § 2254 Application in this Court on September 22, 2014. The operative
pleading is the Amended Application, filed on November 13, 2014 (ECF No. 8). Although the
Amended Application purports to assert five claims, Applicant’s allegations can be distilled into two
claims for relief. Applicant asserts that his convictions violated the Fourteenth Amendment Due
Process Clause and his Fifth Amendment privilege against self-incrimination because his confession
to police officers was: (1) coerced; and, (2) obtained in violation of his Miranda1 rights, where his
waiver of the right to counsel was not knowing and voluntary.
In the Pre-Answer Response, Respondents concede that the Application is timely under the
AEDPA one-year limitation period set forth in 28 U.S.C. § 2244(d). (ECF No. 16, at 4-7).
Respondents further concede that Mr. Cousett exhausted state court remedies for his first claim. (Id.
at 15). Respondents contend, however, that claim two is not exhausted and is now procedurally
barred because Applicant no longer has a state court remedy available to him. (Id. at 15-17).
II. Exhaustion and Procedural Default
A. Applicable legal standards
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, 843 (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. Peoples, 489 U.S. 346, 351 (1989). 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).
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
Miranda v. Arizona, 384 U.S. 436 (1966).
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 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).
If a habeas petitioner “failed to exhaust state remedies and the court to which the petitioner
would be required to present his claims in order to meet the exhaustion requirement would now find
the claims procedurally barred . . . there is a procedural default. . . . .” Coleman v. Thompson, 501
U.S. 722, 735 n.1 (1991); Anderson v. Sirmons, 476 F.3d 1131, 1139-40 n.7 (10th Cir. 2007)
(applying anticipatory procedural bar). A claim that has been procedurally defaulted in the state
courts on an independent and adequate state procedural ground is precluded from federal habeas
review, unless the prisoner can demonstrate cause for the default and actual prejudice as a result of
the federal violation, or demonstrate that failure to consider the claim will result in a fundamental
miscarriage of justice. Coleman, 501 U.S. at 750; Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th
A petitioner’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).
For his second claim, Applicant asserts that his convictions violated the Fourteenth
Amendment Due Process Clause and his Fifth Amendment privilege against self-incrimination
because his confession to police officers was obtained in violation of his Miranda rights, where his
waiver of the right to counsel was not knowing and voluntary. (ECF No. 6, at 7). Respondents argue
that because Applicant failed to exhaust this claim in the state courts and no longer has an available
state court remedy, the claim is procedurally barred.
On direct appeal of his convictions and sentences, Mr. Cousett argued that the trial court
erred in denying his motion to suppress his confessions as involuntary because the confessions were
induced by improper promises and threats. (ECF No. 16-8). However, Mr. Cousett never raised an
allegation challenging the validity of his waiver of the right to counsel at the time the police
interrogated him. (See id.).
In the state post-conviction proceeding, Mr. Cousett argued that his trial and appellate
counsel were constitutionally ineffective; that the court withheld evidence at trial that might have
proved his innocence; and, that the evidence was insufficient to support his convictions. (ECF No.
16-2, at 5; No. 16-3). He did not argue the invalidity of his waiver of counsel during the police
The Court agrees with Respondents that Applicant failed to exhaust state court remedies for
his second claim. If Mr. Cousett attempted to fairly present claim two to the state courts at this time
in another post-conviction motion, the motion would be denied as successive. See Colo. R. Crim.
P. 35(c)(3)(VII) (“The court shall deny any claim that could have been presented in an appeal
previously brought or postconviction proceeding previously brought.”); see also People v. Valdez,
178 P.3d 1269, 1275 (Colo. App. 2007); People v. Vondra, 240 P.3d 493, 494-95 (Colo. App. 2010).
Colo. Crim. P. Rule 35(c)(3)(VII) is an adequate state procedural ground for rejecting a claim. See
Burton v. Zavaras, No. 09-1094, 340 F. App’x 454-55 (10th Cir. Aug. 4, 2009) (unpublished)
(applying Colorado’s bar against successive claims); Williams v. Broaddus, No. 08-1254, 331 F.
App’x 560, 563 (10th Cir. May 20, 2009) (unpublished). Because Mr. Cousett is procedurally
barred from raising the allegations of claim two in the state courts at this time, he must meet the
cause and prejudice standard or fundamental miscarriage of justice exception to excuse his
procedural default. See Coleman, 501 U.S. at 750; Cummings, 506 F.3d at 1224.
In his Reply, Applicant suggests that his direct appeal counsel was constitutionally
ineffective in failing to challenge the validity of Applicant’s waiver of the right to counsel before
he was interrogated by the police. (ECF No. 17, at 4-5).
Appellate counsel’s failure to raise a meritorious issue on direct appeal may constitute cause
to excuse a procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Hammon v.
Ward, 466 F.3d 919, 925 (10th Cir. 2006). However, the claim that appellate counsel was
constitutionally ineffective must itself be exhausted in the state courts. Edwards, 529 U.S. at 453.
Although Mr. Cousett raised a claim of ineffective assistance of appellate counsel in his state postconviction proceeding, he alleged only that appellate counsel should have challenged the sufficiency
of the evidence at trial and the trial court’s failure to disclose potentially exculpatory evidence. (ECF
No. 16-2, at 8). Applicant did not claim that appellate counsel was ineffective in failing to challenge
his waiver of Miranda rights. (See generally ECF No. 16-3). As such, Applicant thus cannot rely
on the ineffective assistance of appellate counsel to excuse his procedural default of the unexhausted
allegations in claim 6. See Edwards, 529 U.S. at 453; see also Livingston v. Kansas, No. 10-3076,
407 F. App’x 267, 273 (10th Cir. Nov. 2, 2010) (unpublished).
Mr. Cousett does not point to any other cause for his procedural default of claim two, or
make a colorable showing of actual innocence.
As such, claim two will be dismissed as
For the reasons discussed above, it is
ORDERED that claim two of the Amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 8), filed by Preston Cousett, pro se, is DISMISSED WITH
PREJUDICE as procedurally barred. It is
FURTHER ORDERED that Respondents shall file an Answer to claim one of the Amended
Application within thirty (30) days of this Order. It is
FURTHER ORDERED that Applicant may file a Reply within thirty (30) days after
Respondents file an Answer.
Dated at Denver, Colorado, this 15th day of January, 2015.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?