Mishra v. Trani et al

Filing 20

ORDER to Dismiss in Part and for Answer. Claim one of the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1 ) is DISMISSED WITH PREJUDICE as procedurally defaulted. Respondents shall file an Answer to claims two and three of the Application within thirty (30) days of this Order. Applicant may file a Reply within thirty (30) days after Respondents file an Answer. By Judge R. Brooke Jackson on 06/03/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge R. Brooke Jackson
Civil Action No. 15-cv-00446-RBJ
BIKRAM MISHRA,
Applicant,
v.
TRAVIS TRANI, Warden, and
CYNTHIA COFFMAN, the Attorney General of the State of Colorado,
Respondents.

ORDER TO DISMISS IN PART AND FOR ANSWER

Applicant, Bikram Mishra, is in the custody of the Colorado Department of
Corrections (CDOC) at the Colorado State Penitentiary in Canón City, Colorado. He
has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF
No. 1) challenging the validity of a conviction and sentence imposed in the District Court
of Jefferson County, Colorado. Mr. Mishra has paid the $5.00 filing fee.

On

March 4, 2015, 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. 6) on
March 13, 2015. Applicant filed a Reply (ECF No. 9) on April 20, 2015, after obtaining
an extension of time.
The Court construes Mr. Mishra’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
On August 1, 2007, Applicant was convicted in Jefferson County District Court
Case No. 06CR2775 of second-degree murder (heat of passion). (ECF No. 1, at 2). He
was sentenced to a 19-year prison term with the CDOC. (Id.).
Applicant’s conviction was affirmed on direct appeal in People v. Bikram
Bihari Mishra, No. 07CA2362 (Colo. App. Nov. 18, 2010) (unpublished). (ECF No. 6-6).
The Colorado Supreme Court denied Applicant’s petition for certiorari review on March
28, 2011. (ECF No. 6-8).
On August 4, 2011, Applicant file a motion for reconsideration of his sentence,
pursuant to Colo. Crim. P. Rule 35(b). (ECF No. 6-1, at 4). On March 8, 2012, the state
district court granted the motion and reduced Applicant’s sentence from 19 to 16 years
in prison. (Id. at 3). Applicant did not appeal the resentencing.
On June 28, 2012, Applicant filed another Colo. Crim. P. Rule 35(b) motion,
which the state district court denied. (Id.). Applicant did not appeal.
On September 24, 2012, Applicant filed a motion for post-conviction relief
pursuant to Colo. Crim. P. Rule 35(c), which was denied by the state trial court. (Id. at
3-4). The Colorado Court of Appeals affirmed the trial court’s order in People v. Bikram
Bihari Mishra, No. 12CA2354 (Colo. App. July 3, 2014) (unpublished). (ECF No. 6-12).
The Colorado Supreme Court denied Applicant’s petition for certiorari review on
February 9, 2015. (ECF No. 6-14).
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On March 3, 2015, Mr. Mishra filed his federal application under 28 U.S.C.
§ 2254 asserting three claims for relief:
1. The trial court denied Applicant due process by refusing to instruct the
jury on the lesser-included offense of criminally negligent homicide. (ECF
No. 1, at 5).
2. The trial court violated Applicant’s constitutional rights in denying his
motion to suppress self-incriminating statements to the police because he
was too intoxicated and tired to execute a valid waiver of his Miranda1
rights. (Id. at 6).
3. Applicant’s Sixth Amendment right to the effective assistance of
counsel was violated because counsel: (a) failed to interview and call an
important defense witness, Mr. Farr, whose testimony would have
supported Applicant’s claim of self-defense; (b) labored under a conflict of
interest, where Mr. Farr was a former client of counsel; and, (3) limited his
questioning of trial witnesses so that he could end the trial by a date
certain and meet his National Guard commitment. (Id.).
In the Pre-Answer Response, Respondents concede that the Application is
timely. (ECF No. 6, at 5-9). Respondents further concede that Applicant exhausted
state court remedies for claims two and three. (Id. at 17-18). Respondents argue,
however, that claim one is procedurally barred. (Id. at 14-17).
II. Applicability of Procedural Bar
A. Standard of Review
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
1

Miranda v. Arizona, 384 U.S. 436 (1966).

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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 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
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result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cummings v.
Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007).
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).
B. Claim One
In claim one, Mr. Mishra asserts that the trial court’s denial of his request to
instruct the jury on the lesser-included offense of criminally negligent homicide violated
due process. (ECF No. 1, at 5). Respondents contend in the Pre-Answer Response
that Applicant presented this claim on direct appeal of his conviction solely as an issue
of state law, rather than as a violation of the federal Constitution. (ECF No. 6, at 14).
Applicant argued in his opening brief to the Colorado Court of Appeals that the
requested instruction should have been given because there was a rational basis in the
evidence for a verdict acquitting him of the offense charged and convicting him of the
lesser included offense, citing People v. Castro, 10 P.3d 700, 702 (Colo. App. 2001)
(finding error where some evidence supported the mens rea for criminally negligent
homicide, “an unintentional killing caused by the actor’s failure to perceive a substantial
and unjustifiable risk that a certain result will occur.”). (ECF No. 6-2, at 7-10). In his
state appellate brief, Mr. Mishra relied solely on Colorado appellate court cases that
applied Colorado law. (Id. at 9-11, 18-19). The Colorado Court of Appeals did not
perceive a federal constitutional issue, and rejected the claim on state law grounds.
(See ECF No. 6-6, at 5-7).

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The Court agrees with Respondents that Applicant failed to exhaust state
remedies for his first claim because he did not present the claim as a federal
constitutional issue to the Colorado appellate courts. See Duncan, 513 U.S. at 365-66.
Respondents further argue that Applicant has committed an anticipatory
procedural default of claim one because if he attempted to raise it in a state postconviction motion at this time, it would be procedurally barred pursuant to Colo. Crim. P.
35(c)(3)(VII) (“The court shall deny any claim that could have been presented in an
appeal previously brought. . .”). See also Welch v. Milyard, No. 11-1214, 436 F. App’x
861, 865-66 (10th Cir. Aug. 18, 2011) (unpublished) (concluding that claim barred from
state court review under Colo. Crim. P. Rule 35(c)(3)(VII) was procedurally defaulted on
federal habeas review).
The claim may also be subject to dismissal in the state courts as time-barred,
pursuant to COLO.REV.STAT. § 16-5-402 (2014) (imposing a three-year limitation
period for post conviction claims challenging non-class 1 felonies).
The Court finds that Applicant does not have an available state court remedy at
this time. As such, he must satisfy the cause and prejudice standard to excuse his
anticipatory procedural default, or demonstrate that a fundamental miscarriage of justice
will result if the Court does not review the merits of his claim. Coleman, 501 U.S. at 735
n.1; Anderson, 476 F.3d at 1139-40 n.7.
Mr. Mishra argues in his Reply brief that his procedural default of claim one
should be excused because direct appeal counsel was ineffective in failing to raise the
claim as a constitutional issue on direct appeal. (ECF No. 9, at 1-3).

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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
properly in the state courts. Edwards, 529 U.S. at 453. Mr. Mishra did not exhaust a
claim of ineffective assistance-of-appellate-counsel claim in the state courts. See ECF
No. 6-9 (opening brief filed in state post-conviction proceeding). He thus cannot rely on
the ineffective assistance of appellate counsel to excuse his anticipatory procedural
default of claim one. 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. Mishra also suggests that his procedural default should be excused because
the state court denied his request for appointed post-conviction counsel (ECF No. 9, at
3-4). See Martinez v. Ryan,

U.S.

, 132 S.Ct. 1309, 1320 (2012) (“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.”). However, Martinez does not apply to a claim that appellate counsel
was ineffective. See Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012)
(Martinez applies “only to a prisoner's procedural default of a claim of ineffective
assistance at trial, not to claims of deficient performance by appellate counsel”)
(quotation and emphasis omitted)); see also Ponis v. Hartley, No. 13-1120, 534 F. App’x
801, 805 (10th Cir. Aug. 27, 2013) (unpublished) (“[T]he Court in Martinez made clear
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that it announced a “narrow exception” that applies only with respect to “cause for a
prisoner's procedural default of a claim of ineffective assistance at trial,” citing Martinez,
132 S.Ct. at 1315).
And, finally, Mr. Mishra makes no showing of actual innocence. See Schlup v.
Delo, 513 U.S. 298, 314-15, 324 (1995) (to satisfy fundamental miscarriage of justice
exception, prisoner must present new reliable evidence of his actual innocence –
“exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.”).
Because Mr. Mishra has failed to satisfy the cause and prejudice standard, or the
fundamental miscarriage of justice exception, claim one will be dismissed as
procedurally barred.
III. Orders
For the reasons discussed above, it is
ORDERED that claim one of the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED WITH PREJUDICE as
procedurally defaulted. It is
FURTHER ORDERED that Respondents shall file an Answer to claims two and
three of the 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 June 3, 2015, at Denver, Colorado.
By The Court:

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R. BROOKE JACKSON
United States District Judge

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