Jones v. Miller et al
Filing
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ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/24/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02916-GPG
RICHARD S. JONES,
Applicant,
v.
WARDEN MILLER, and
JOHN SUTHERS, Attorney General of the State of Colorado,
Respondents.
ORDER OF DISMISSAL
Applicant, Richard S. Jones, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Jones 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 November
6, 2014, Mr. Jones filed an Amended Application (ECF No. 4) that was not on the
proper form. On December 12, 2014, Mr. Jones filed on the proper form a second
amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF
No. 7) (the “second amended application”). Mr. Jones is challenging the validity of his
conviction and sentence in Arapahoe County District Court case number 08CR463.
On December 15, 2014, Magistrate Judge Gordon P. Gallagher 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 January 23, 2015, Respondents filed their
Pre-Answer Response (ECF No. 16) arguing that Mr. Jones’ claims are unexhausted
and procedurally barred. On February 5, 2015, Mr. Jones filed Applicant’s Reply to PreAnswer Response (ECF No. 17).
The Court must construe the second amended application and other papers filed
by Mr. Jones 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.
A jury convicted Mr. Jones of escape because, while on intensive supervised
parole, he cut off an ankle monitor and absconded. See People v. Jones, No.
10CA1163 (Colo. App. Apr. 12, 2012) (unpublished) (ECF No. 16-4). He also was
convicted of five habitual criminal counts and he was sentenced to forty-eight years in
prison. (See ECF No. 16-1 at 9; ECF No. 16-4.) The judgment of conviction was
affirmed on direct appeal. (See ECF No. 16-4.) On September 17, 2012, the Colorado
Supreme Court denied Mr. Jones’ petition for writ of certiorari on direct appeal. (See
ECF No. 16-6.)
On September 13, 2010, while his direct appeal was pending, Mr. Jones filed in
the trial court a motion for sentence reconsideration pursuant to Rule 35(b) of the
Colorado Rules of Criminal Procedure. (See ECF No. 16-1 at 8-9.) The trial court
ultimately denied the Rule 35(b) motion on November 16, 2012. (See id. at 8.) Mr.
Jones did not appeal.
On April 10, 2013, Mr. Jones filed in the trial court a postconviction motion
pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See id.) The trial
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court denied the Rule 35(c) motion on May 1, 2013. (See id.) The trial court’s order
denying the Rule 35(c) motion was affirmed on appeal. See People v. Jones, No.
13CA1094 (Colo. App. Apr. 17, 2014) (unpublished) (ECF No. 16-9).
Mr. Jones asserts two claims for relief in the second amended application. He
first claims his Fourteenth Amendment rights were violated because he was sentenced
to prison for a parole violation even though he was not advised in the prior cases for
which he was serving parole that he would be subject to a term of parole after
incarceration. Mr. Jones contends in his second claim that his Eighth and Fourteenth
Amendment rights were violated because the State lacked jurisdiction to sentence him
to prison for escape when he was not lawfully on parole at the time he cut off the ankle
monitor.
As noted above, Respondents argue that Mr. Jones’ claims are unexhausted and
procedurally barred. 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
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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).
Respondents contend that Mr. Jones failed to exhaust state remedies because
the constitutional claims he raises in the second amended application were not raised
on direct appeal and, although he raised similar arguments in the postconviction Rule
35(c) proceedings, he did not raise those arguments as federal constitutional claims.
Respondents also contend that, even if Mr. Jones did present his claims as federal
constitutional claims on appeal from the denial of his Rule 35(c) motion, the claims were
rejected by the Colorado Court of Appeals on an independent and adequate state
procedural rule. Mr. Jones argues in his reply to the Pre-Answer Response that his
constitutional claims in the second amended application are exhausted because they
were presented to the trial court at a hearing in December 2009, he appealed the
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judgment of conviction to the Colorado Supreme Court, and he sought postconviction
relief in the state courts.
Mr. Jones’ assertion that he presented his claims to the trial court at a hearing in
December 2009 does not demonstrate he fairly presented his claims to the Colorado
Supreme Court. Furthermore, his conclusory assertions that he has exhausted state
remedies because he filed a direct appeal and sought postconviction relief in state court
are not sufficient to demonstrate that he fairly presented his claims to the Colorado
appellate courts. 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).
The Court has examined Mr. Jones’ state court appellate briefs and agrees with
Respondents that Mr. Jones has not fairly presented to the state courts the federal
constitutional claims he asserts in the second amended application. Mr. Jones claimed
in his opening brief on direct appeal that the trial court’s decision to exclude evidence of
illegal confinement violated his constitutional right to present a defense and that the trial
court’s decision to permit amendment of the complaint and information during the
habitual criminal proceedings changed the elements of the habitual criminal counts.
(See ECF No. 16-2.) He raised the same claims in his petition for writ of certiorari to the
Colorado Supreme Court on direct appeal. (See ECF No. 16-5.) However, he did not
raise on direct appeal any constitutional claim premised on the arguments he now
raises in the second amended application, i.e., that his federal constitutional rights were
violated because he was not advised in his prior cases that his sentence included a
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term of parole and because his parole was unlawful. Mr. Jones did include in his
opening brief on appeal from the denial of his Rule 35(c) motion vague factual
allegations similar to his factual allegations in the second amended application. (See
ECF No. 16-7.) However, Mr. Jones did not raise any federal constitutional claims on
appeal from denial of his postconviction Rule 35(c) motion. (See id.) Therefore, the
Court agrees with Respondents that Mr. Jones has not exhausted state remedies for
either of the constitutional claims he raises in the second amended application.
Although Mr. Jones has not fairly presented his federal constitutional claims to
the state courts, the Court may not dismiss those claims for failure to exhaust state
remedies if Mr. Jones no longer has an adequate and effective state remedy available
to him. See Castille, 489 U.S. at 351. Respondents contend, and the Court agrees,
that Mr. Jones no longer has an adequate and effective state remedy available to him
and that the unexhausted claims are procedurally defaulted because Rule 35(c)(3)(VII)
of the Colorado Rules of Criminal Procedure provides, with limited exceptions not
applicable to Mr. Jones, that the state courts must dismiss any claim that could have
been presented in a prior appeal or postconviction proceeding. Thus, it is clear that Mr.
Jones may not return to state court to pursue his unexhausted claims.
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 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
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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. Jones’ 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. Jones fails to demonstrate or even argue that Rule 35(c)(3)(VII) 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, 494-95 (Colo. App. 2010) (applying Crim P. Rule 35(c)(3)(VII) to
reject claims that could have been raised in a prior proceeding). Therefore, the
unexhausted claims are procedurally defaulted and cannot be considered unless Mr.
Jones demonstrates either cause and prejudice or a fundamental miscarriage of justice.
To demonstrate cause for his procedural default, Mr. Jones 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
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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. Jones can demonstrate cause,
he also must show “actual prejudice as a result of the alleged violation of federal law.”
Coleman, 501 U.S. at 750. A fundamental miscarriage of justice occurs when “a
constitutional violation has probably resulted in the conviction of one who is actually
innocent.” Murray, 477 U.S. at 496.
Mr. Jones makes no attempt to demonstrate cause and prejudice with respect to
his unexhausted claims and he fails to demonstrate that a failure to consider the merits
of those claims will result in a fundamental miscarriage of justice. Therefore, the
unexhausted claims are procedurally barred and must be dismissed for that reason.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Applicant files a notice of appeal he also must pay the full $505 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the application (ECF No. 1), the amended application (ECF No.
4), and the second amended application (ECF No. 7) are denied and the action is
dismissed because Applicant’s claims are unexhausted and procedurally barred. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. It is
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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this
24th
day of
February
, 2015.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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