Jimenez v. Colorado Department of Corrections et al

Filing 15

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 7/8/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01006-GPG
ANTHONY LOLIN JIMENEZ, SR.,
Applicant,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
RICK RAEMISCH (Exec. Dir.),
CROWLEY COUNTY CORRECTIONAL FACILITY,
MICHAEL MILLER (Warden), and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Anthony Lolin Jimenez, Sr., is a prisoner in the custody of the
Colorado Department of Corrections. Mr. Jimenez 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
May 26, 2015, Mr. Jimenez filed an amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 7). Mr. Jimenez is challenging the validity of his
conviction and sentence in Teller County District Court case number 00CR178.
On May 27, 2015, 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 June 4, 2015, Respondents filed their Pre-Answer

Response (ECF No. 13) arguing that the application is untimely and that Mr. Jimenez’s
claims are unexhausted and procedurally barred. On June 18, 2015, Mr. Jimenez filed
his reply (ECF No. 14) to Respondents’ Pre-Answer Response.
The Court must construe the amended application and other papers filed by Mr.
Jimenez 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.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Colorado Court of Appeals described the factual and procedural background
as follows:
On August 20, 2000, defendant, Michael Easton, Nick
Olan, and three other individuals began a “camping trip.”
Over the next few days, they smoked marijuana and drank
alcohol at the campsite. Easton testified that during the
camping trip he and defendant stole from a Home Depot
store twice and a Hobby Lobby store once, and burglarized a
cabin, to get money to buy alcohol, marijuana, cigarettes,
and “supplies.” Olan was with them during one of the Home
Depot thefts, the Hobby Lobby theft, and the cabin burglary,
but defendant and Easton dropped him off near his house on
August 23. By that day, defendant and Easton were the only
members of the original group still camping at the campsite.
On August 24, defendant and Easton picked up a
fifteen-year-old girl, J.B., whom they did not know, on a
street in Colorado Springs. They took her to the campsite
where they held her for two days. Easton testified that both
he and defendant sexually assaulted J.B., and that
defendant suggested they kill J.B. because she “knew too
much.” Defendant bound J.B. with duct tape, and he and
Easton carried J.B. to a stream where they drowned her.
Defendant and Easton then removed J.B.’s clothing and
jewelry as well as the duct tape, put her body in a sleeping
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bag, and drove to a small ravine near Trail Creek Road in
Teller County, where they left J.B.’s body.
Late on September 8, 2000, defendant went to the
Pikes Peak Mental Health Center (PPMH), in Colorado
Springs. He told a counselor that he was having “visions” of
a teenage girl being sexually assaulted and murdered by two
men, and that he wanted her to ask the police to come get
him so he could show them where the girl’s body was. The
counselor called the Teller County Sheriff’s Office.
After a sheriff’s deputy arrived at PPMH, defendant
told the deputy what he had told the counselor. Defendant
offered to go with the officer to find the victim’s body. He,
the deputy, and a sheriff’s office sergeant then searched the
Trail Creek Road area. Defendant directed them to several
sites where they found nothing, but eventually he directed
them to the victim’s body. The officers then handcuffed
defendant, took him into custody, and transported him to the
Teller County Sheriff’s Office.
Another sheriff’s office sergeant and a district
attorney’s office investigator questioned defendant at length
on September 9 and, at defendant’s request, took him to a
campsite where he said he and Easton had camped. At
about 6:30 p.m. that day, the sergeant and the investigator
arrested defendant. After they booked him into jail, they took
him to a hospital to give biological samples. After defendant
gave the biological samples, he directed the sergeant and
the investigator to where he and Easton had “picked up” the
victim.
The next day, defendant again asked to speak with
the sergeant and the investigator. Defendant then related
additional details about his visions and the incident.
The People charged both defendant and Easton with
first degree murder, kidnapping, sexual assault, and
conspiracy. The prosecution indicated that the People
intended to seek the death penalty against both men.
Easton entered into a plea agreement with the People, in
which he agreed to plead guilty to second degree murder
and second degree kidnapping and to testify truthfully in
defendant's trial in exchange for a stipulated sentence of
seventy-three years in the custody of the Department of
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Corrections and dismissal of all other charges.
Defendant’s first trial ended in a mistrial. Before
defendant’s second trial, the prosecution decided not to seek
the death penalty.
Defendant’s theory of defense at trial was that the
victim had willingly gotten into the car with him, Easton, and
Olan; he never participated in preventing the victim from
going anywhere; he did not sexually assault her or know that
Easton or Olan had done so; and although he was physically
present during the events leading to the victim’s death, he
did not cause her death or intend to kill her.
The jury in the second trial found defendant guilty of
the lesser included offense of second degree murder and the
lesser nonincluded offense of accessory to a crime, but was
unable to reach verdicts on the kidnapping, sexual assault,
and conspiracy charges. The court sentenced defendant to
forty-eight years in the custody of the Department of
Corrections on the murder conviction and six years
incarceration on the accessory conviction, to be served
consecutively.
People v. Jimenez, 217 P.3d 841, 849-50 (Colo. App. 2008). The Colorado Court of
Appeals affirmed the convictions for second degree murder and accessory on direct
appeal. See id. On October 19, 2009, the Colorado Supreme Court denied Mr.
Jimenez’s petition for writ of certiorari on direct appeal. (See ECF No. 13-6.) On May
14, 2010, the trial court granted the prosecution’s motion to dismiss the kidnapping,
sexual assault, and conspiracy charges. (See 13-1 at 17.)
On June 9, 2010, Mr. Jimenez filed in the trial court a postconviction motion
pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 131 at 17.) The trial court denied the Rule 35(c) motion and the Colorado Court of
Appeals affirmed the trial court’s order. See People v. Jimenez, No. 10CA1713 (Colo.
App. Mar. 22, 2012) (ECF No. 13-2). Mr. Jimenez did not seek certiorari review in the
4

Colorado Supreme Court.
On April 10, 2012, Mr. Jimenez filed in the trial court a postconviction motion “To
Amend or Vacate Unauthorized Sentence” (ECF No. 13-1 at 16). On August 21, 2012,
the trial court denied the motion. (See ECF No. 13-1 at 15.)
Mr. Jimenez initiated this action on May 12, 2015, and he asserts three claims for
relief in the amended application. He contends in claim one that (a) his federal statutory
and constitutional rights were violated by the use at his trial of confidential medical
records and (b) the trial court lacked jurisdiction because the crimes were committed in
a national forest. He contends in claim two that his state and federal constitutional
rights were violated because the trial judge did not take or record his oath of office as
required under state law. Mr. Jimenez’s third claim in the amended application will be
dismissed because the claim is unintelligible and does not set forth a clear statement of
any cognizable federal constitutional violation that implicates the validity of his
conviction or sentence. Although the amended application must be construed liberally,
the general rule that pro se pleadings must be construed liberally has limits and “the
court cannot take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425
F.3d 836, 840 (10th Cir. 2005).
II. ONE-YEAR LIMITATION PERIOD
Respondents first argue that this action is barred by the one-year limitation
period in 28 U.S.C. § 2244(d). That statute provides as follows:
(1) A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall
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run from the latest of–
(A) the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;
(B) the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection.
28 U.S.C. § 2244(d).
In order to apply the one-year limitation period the Court initially determines the
date on which the challenged conviction became final. See 28 U.S.C. § 2244(d)(1)(A).
Mr. Jimenez argues, however, that no valid final judgment exists to trigger the one-year
limitation period because the trial judge lacked authority to enter a final judgment.
According to Mr. Jimenez, the trial judge’s failure to take or record his oath of office,
which is the factual basis for claim two in the amended application, means the judgment
of conviction is void and not merely voidable. This argument lacks merit because
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application of the one-year limitation period is a matter of federal law and Mr. Jimenez
cannot avoid the statute of limitations by characterizing his claims as jurisdictional or
asserting his conviction is void. See Naegele v. Warden, No. 1:13-cv-528, 2014 WL
2006797 at *7 (S.D. Ohio May 16, 2014) (unpublished) (collecting cases). Furthermore,
at least with respect to the allegation that the trial judge failed to record his oath of
office, Colorado courts routinely have rejected arguments challenging the jurisdiction of
trial judges and others who failed to properly file signed oaths, and concluded that “even
a conceded violation of [a] constitutional [oath] requirement” does “not divest an
otherwise properly-appointed judge of jurisdiction to act.” People v. Stanley, 170 P.3d
782, 794 (Colo. App. 2007). Therefore, the Court will proceed to determine the date on
which Mr. Jimenez’s conviction became final.
In general, a conviction becomes final following a decision by the state court of
last resort on direct appeal when the United States Supreme Court denies review, or, if
no petition for writ of certiorari is filed, when the time for seeking such review expires.
See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Pursuant to Rule 13.1 of the
Rules of the Supreme Court of the United States, Mr. Jimenez had ninety days to seek
review in the United States Supreme Court after the Colorado Supreme Court denied
his petition for writ of certiorari on direct appeal on October 19, 2009, but he did not do
so. Therefore, Mr. Jimenez’s conviction became final when the time for filing a petition
for writ of certiorari to the United States Supreme Court expired. Because the ninetieth
day after October 19, 2009, was Sunday, January 17, 2010, and the next day was a
federal legal holiday, the filing deadline extended two additional days until Tuesday,
January 19, 2010. See Sup. Ct. R. 30.1.
7

Mr. Jimenez does not argue that he was prevented by unconstitutional state
action from filing this action sooner and he is not asserting any constitutional rights
newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review. See 28 U.S.C. § 2244(d)(1)(B) & (C). Mr. Jimenez does assert that
he only recently discovered the factual basis for claim two and he contends that the lack
of an oath of office could not have been anticipated and was not discoverable earlier.
See 28 U.S.C. § 2244(d)(1)(D). The Court is not persuaded that Mr. Jimenez could not
have discovered the factual predicate for his second claim before his conviction became
final. See Irons v. Estep, 291 F. App’x 136, 138 (10th Cir. 2008) (concluding on similar
allegations regarding oaths of office required to be filed with the Colorado Secretary of
State that “lack of awareness of a claim does not necessarily mean that the claim was
not discoverable”). Therefore, the Court finds that the one-year limitation period began
to run when Mr Jimenez’s conviction became final on January 19, 2010.
Mr. Jimenez did not initiate this action within one year after January 19, 2010.
Therefore, the next question the Court must address is whether the one-year limitation
period was tolled for any period of time. Pursuant to 28 U.S.C. § 2244(d)(2), a properly
filed state court postconviction motion tolls the one-year limitation period while the
motion is pending. An application for postconviction review is properly filed within the
meaning of § 2244(d)(2) “when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000).
These requirements include:
(1) the place and time of filing; (2) the payment or waiver of
any required filing fees; (3) the obtaining of any necessary
judicial authorizations that are conditions precedent to filing,
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such as satisfying any filing preconditions that may have
been imposed on an abusive filer; and (4) other conditions
precedent that the state may impose upon the filing of a
post-conviction motion.
Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000) (footnote omitted).
The issue of whether a state court postconviction motion is pending for the
purposes of § 2244(d)(2) is a matter of federal law, but “does require some inquiry into
relevant state procedural laws.” See Gibson v. Klinger, 232 F.3d 799, 806 (10th Cir.
2000). The term “pending” includes “all of the time during which a state prisoner is
attempting, through proper use of state court procedures, to exhaust state court
remedies with regard to a particular post-conviction application.” Barnett v. Lemaster,
167 F.3d 1321, 1323 (10th Cir. 1999). Furthermore, “regardless of whether a petitioner
actually appeals a denial of a post-conviction application, the limitations period is tolled
during the period in which the petitioner could have sought an appeal under state law.”
Gibson, 232 F.3d at 804.
In addition to statutory tolling under § 2244(d)(2), the one-year limitation period
may be tolled for equitable reasons. Holland v. Florida, 560 U.S. 631, 649 (2010).
Generally, equitable tolling is appropriate if the petitioner shows both “that he has been
pursuing his rights diligently” and “that some extraordinary circumstance stood in his
way” and prevented him from filing in a timely manner. Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005); see Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). A showing of
excusable neglect is not sufficient to justify equitable tolling. See Gibson, 232 F.3d at
808. Furthermore, in order to demonstrate he pursued his claims diligently, the
petitioner must “allege with specificity ‘the steps he took to diligently pursue his federal

9

claims.’” Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008) (quoting Miller, 141 F.3d
at 978).
As noted above, Mr. Jimenez filed a postconviction Rule 35(c) motion on June 9,
2010, and the state court proceedings relevant to that motion concluded on March 22,
2012, when the Colorado Court of Appeals affirmed the trial court’s order denying the
Rule 35(c) motion. Respondents concede that the one-year limitation period was tolled
pursuant to § 2244(d)(2) while the Rule 35(c) motion was pending and that the Rule
35(c) motion remained pending until the time to file a petition for writ of certiorari to the
Colorado Supreme Court expired in May 2012. Respondents further concede that the
motion to amend or vacate an unauthorized sentence Mr. Jimenez filed on April 10,
2012, continued to toll the one-year limitation period pursuant to § 2244(d)(2) until the
time to appeal from the denial of that motion expired. The trial court denied the motion
to amend or vacate an unauthorized sentence on August 21, 2012, and, pursuant to
Rule 4(b) of the Colorado Appellate Rules, Mr. Jimenez had forty-nine days to file a
notice of appeal after August 21, 2012. The forty-ninth day after August 21, 2012, was
October 9, 2012. Therefore, the one-year limitation period was tolled pursuant to §
2244(d)(2) for the entire time from June 9, 2010, through October 9, 2012. However,
the 140 days after January 19, 2010, when Mr. Jimenez’s conviction became final, and
before June 9, 2010, when he filed the Rule 35(c) motion, count against the one-year
limitation period. Therefore, only 225 days (365 - 140 = 225) remained when the oneyear limitation period began to run again on October 10, 2012. Absent any further
tolling, the one-year limitation period expired on May 22, 2013, which was 225 days
after October 9, 2012.
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The state court docketing records reveal that Mr. Jimenez submitted various
filings to the trial court prior to May 22, 2013, including several motions and letters
requesting public records and other documents regarding rights under international law
and the Uniform Commercial Code. (See ECF No. 13-1 at 15.) Respondents contend,
and the Court agrees, that the requests for public records and documents regarding
rights under international law and the Uniform Commercial Code did not toll the oneyear limitation period pursuant to § 2244(d)(2) because Mr. Jimenez fails to
demonstrate, and there is no indication in the record before the Court, that any of these
filings included a substantive claim for relief with respect to the pertinent judgment.
See, e.g., May v. Workman, 339 F.3d 1236, 1237 (10th Cir. 2003) (finding that
postconviction motions for transcripts and petitions for writs of mandamus relating to
those motions do not toll the one-year limitation period pursuant to § 2244(d)(2));
Pursley v. Estep, 216 F. App’x 733, 734 (10th Cir. 2007) (finding that motions for
appointment of counsel in postconviction proceedings pursuant to Colorado Rule 35(c)
that did not state adequate factual or legal grounds for relief did not toll the one-year
limitation period). “The simple fact that [Mr. Jimenez] mailed something to the court is
surely insufficient to trigger § 2244(d)(2)’s tolling provision.” Sibley v. Culliver, 377 F.3d
1196, 1200 (11th Cir. 2004).
Mr. Jimenez did file in the trial court on January 2, 2013, a verified petition for
void judgment that sounds like an application for postconviction review within the
meaning of § 2244(d)(2). (See ECF No. 13-1 at 15.) However, even assuming the
verified petition for void judgment qualifies as an application for postconviction review,
the petition was not properly filed and did not toll the one-year limitation period pursuant
11

to § 2244(d)(2) because the petition, which was filed more than three years after Mr.
Jimenez’s direct appeal concluded on October 19, 2009, was untimely. See Colo. Rev.
Stat. § 16-5-402 (providing a three-year statute of limitations on postconviction attacks
on felonies of class 2 and higher). Untimely postconviction filings are not “properly filed”
within the meaning of § 2244(d)(2). See Pace, 544 U.S. at 417.
For the same reason, the Rule 35(a) motion Mr. Jimenez filed on July 25, 2013,
which the trial court specifically determined was untimely as a matter of state law, also
did not toll the one-year limitation period pursuant to § 2244(d)(2). Copies of the Rule
35(a) motion and the trial court’s order denying that motion are attached to the
amended application. (See ECF No. 7 at 35-38.) In addition, the Rule 35(a) motion
filed on July 25, 2013, and any other postconviction motions Mr. Jimenez filed after May
22, 2013, also could not have tolled the one-year limitation period pursuant to §
2244(d)(2) because those motions were filed after the one-year limitation period already
had expired. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (stating that
properly filed state court postconviction motions toll the one-year limitation period only if
they are filed within the one-year limitation period). Therefore, the Court finds that this
action is barred by the one-year limitation period in the absence of some other reason
that justifies tolling.
Mr. Jimenez contends that this action should not be dismissed as untimely
because “[t]he issue of public health and possible Constitutional violations outweighs
the application of a one[-]year time bar” and that he has been diligent in pursuing relief
because he “has mailed hundreds of letters (handwritten and typed) in an attempt to
validate the claims now before this court.” (ECF No. 14 at 3.) Mr. Jimenez also asserts
12

that he is actually innocent. The Court will consider these arguments in the context of
equitable tolling.
Mr. Jimenez bears a strong burden to show specific facts that demonstrate the
extraordinary circumstances and due diligence necessary to justify equitable tolling.
See Yang, 525 F.3d at 928. He fails to satisfy that burden because he does not identify
any extraordinary circumstance that prevented him from filing in a timely manner and
his allegation that he mailed hundreds of letters does not demonstrate he pursued his
claims diligently.
Mr. Jimenez’s vague and conclusory allegation of actual innocence also does not
justify equitable tolling. A credible showing of actual innocence provides a gateway to
consideration of an otherwise untimely claim of constitutional error as an equitable
exception to the one-year limitation period in § 2244(d). McQuiggin v. Perkins, 133 S.
Ct. 1924, 1928 (2013). However, “tenable actual-innocence gateway pleas are rare.”
Id. To be credible, a 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.” Schlup v. Delo, 513 U.S. 298, 324 (1995); see McQuiggin,
133 S. Ct. at 1936 (applying actual innocence test in Schlup to one-year limitation
period in § 2244(d)). The petitioner then must demonstrate “that it is more likely than
not that no reasonable juror would have convicted him in the light of the new evidence.”
Schlup, 513 U.S. at 327; see also McQuiggin, 133 S. Ct. at 1924. Although the actual
innocence test does not require a showing of diligence, untimeliness “bear[s] on the
credibility of evidence proffered to show actual innocence.” McQuiggin, 133 S. Ct. at
13

1935. Thus, “a federal habeas court, faced with an actual-innocence gateway claim,
should count unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier
to relief, but as a factor in determining whether actual innocence has been reliably
shown.” Id. at 1928.
Mr. Jimenez fails to allege any facts to support a credible claim of actual
innocence under Schlup. Therefore, the Court finds no basis for an equitable exception
to the one-year limitation period based on actual innocence. As a result, the action will
be dismissed as untimely.
III. EXHAUSTION OF STATE REMEDIES AND PROCEDURAL DEFAULT
Respondents also contend that the action should be dismissed because the
constitutional claims in the amended application 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
v. Connor, 404 U.S. 270, 278 (1971); see also Nichols v. Sullivan, 867 F.2d 1250, 1252
14

(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 concede that Mr. Jimenez on direct appeal fairly presented a claim
that the State violated 42 U.S.C. § 290dd - 290ee by accessing records of his visits to
Pikes Peak Mental Health for mental health treatment and using those records at his
trial, the factual basis for claim 1(a) in the amended application. However, Respondents
maintain that Mr. Jimenez did not raise this claim in state court as a federal
constitutional claim and that the alleged statutory violation does not state a cognizable
claim for habeas relief. With respect to claims 1(b) and 2 in the application,
Respondents contend that Mr. Jimenez has not fairly presented either of those claims to
the state courts as a federal constitutional claim. Mr. Jimenez asserts in his reply to the
Pre-Answer Response that “[t]he issues within the amended application were
adjudicated by the tr[ia]l court of record and the Colorado Supreme Court who
15

consciously chose not to brief the issues or make a finding of facts in contradiction to
the claims asserted.” (ECF No. 14 at 2.) It appears that Mr. Jimenez is referring to a
petition for extraordinary writ he filed in the trial court in September 2014 (see ECF No.
1-3 at 1-25), and a petition for extraordinary writ pursuant to Colorado Appellate Rule 21
he filed in the Colorado Supreme Court (see id. at 34-61). On October 9, 2014, the trial
court entered an order in response to the petition for extraordinary writ filed in that court.
(See id. at 26.) On February 25, 2015, the Colorado Supreme Court denied the C.A.R.
21 petition filed in that court without addressing the merits of the claims asserted. (See
id. at 65.)
The fact that Mr. Jimenez may have presented his claims to the trial court does
not demonstrate he fairly presented his claims to the Colorado Supreme Court. The
fact that Mr. Jimenez filed in the Colorado Supreme Court an original petition for
extraordinary writ also does not demonstrate his claims are exhausted. If a “claim has
been presented [to the state’s highest court] for the first and only time in a procedural
context in which its merits will not be considered unless there are special and important
reasons therefor, . . . [r]aising the claim in such a fashion does not, for the relevant
purpose, constitute fair presentation.” Castille, 489 U.S. at 351; see also Parkhurst v.
Shillinger, 128 F.3d 1366, 1369 (10th Cir. 1997) (state procedure that is discretionary
and limited in scope does not constitute fair presentation). The Colorado Supreme
Court, in its discretion, may decline to address the merits of claims asserted in an
original petition for an extraordinary writ. See Colo App. R. 21; see also Rogers v. Best,
171 P.2d 769, 770 (Colo. 1946). Furthermore, relief under Rule 21 “shall be granted
only when no other adequate remedy, including relief available by appeal . . ., is
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available. C.A.R. 21(a)(1). As a result, the denial of an original petition for an
extraordinary writ by the Colorado Supreme Court does not indicate that the court has
considered the merits of the argument. See Bell v. Simpson, 918 P.2d 1123, 1125 n.3
(Colo. 1996). Because the Colorado Supreme Court denied relief without addressing
the merits of the claims asserted, the Court finds that Mr. Jimenez’s claims were not
fairly presented to the Colorado Supreme Court in the Rule 21 proceeding.
The Court has examined Mr. Jimenez’s state court appellate briefs and agrees
with Respondents that Mr. Jimenez has not fairly presented to the state courts the
federal constitutional claims he asserts in the amended application. Mr. Jimenez did not
raise claims 1(b) and 2 either on direct appeal or on appeal from the denial of his Rule
35(c) motion. With respect to claim 1(a), Mr. Jimenez did argue on direct appeal that
his mental health records were obtained and used at trial in violation of a federal statute,
but he did not argue that his federal constitutional rights were violated. Therefore, Mr.
Jimenez has not exhausted state remedies for his federal constitutional claims in the
amended application.
Mr. Jimenez did exhaust state remedies regarding the statutory violation portion
of claim 1(a), but the statutory violation portion of claim 1(a) is not a cognizable claim for
habeas relief. The United States Supreme Court has “recognized that a violation of
federal statutory rights ranked among the ‘nonconstitutional lapses we have held not
cognizable in postconviction proceeding’ unless they meet the ‘fundamental defect’ test”
in Hill v. United States, 368 U.S. 424 (1962). Medellin v. Dretke, 544 U.S. 660, 664
(2005) (per curiam). A “fundamental defect” is one “which inherently results in a
complete miscarriage of justice [or] an omission inconsistent with the rudimentary
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demands of fair procedure.” Hill, 368 U.S. at 428.
The alleged statutory violation presented in claim 1(a) regarding Mr. Jimenez’s
mental health records does not rise to the level of a “fundamental defect” under the test
announced in Hill. Therefore, the statutory violation portion of claim 1(a) will be
dismissed for failure to present a cognizable habeas corpus claim.
Although Mr. Jimenez 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. Jimenez 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. Jimenez 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. Jimenez, that the state courts must dismiss any claim
that could have been presented in a prior appeal or postconviction proceeding. In
addition, any attempt by Mr. Jimenez to file another postconviction Rule 35(c) motion in
state court would be untimely. See Colo. Rev. Stat. § 16-5-402 (providing that a
defendant convicted of felony other than a class 1 felony has three years to seek relief
under Rule 35(c) unless he establishes good cause). Thus, it is clear that Mr. Jimenez
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
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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
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. Jimenez’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. Jimenez fails to demonstrate that Rules 35(c)(3)(VII) of the Colorado Rules of
Criminal Procedure and Colo. Rev. Stat. § 16-5-402 are not independent and adequate.
In any event, the Court finds that Rules 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. Rules 35(c)(3)(VI) and (VII) to reject claims that
were or could have been raised in a prior proceeding). Colorado’s statute of limitations
for collateral attacks also is an independent and adequate state procedural ground.
See Klein v. Neal, 45 F.3d 1395, 1398 (10th Cir. 1995). Therefore, the unexhausted
claims are procedurally defaulted and cannot be considered unless Mr. Jimenez
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demonstrates either cause and prejudice or a fundamental miscarriage of justice.
To demonstrate cause for his procedural default, Mr. Jimenez 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. Jimenez 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. Jimenez 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 also will be dismissed for that reason.
IV. CONCLUSION
In summary, the statutory violation portion of claim 1(a) and claim 3 in the
amended application will be dismissed because those claims are not cognizable habeas
corpus claims. The remaining claims will be dismissed as barred by the one-year
limitation period in § 2244(d) and because they are unexhausted and procedurally
barred. 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
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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 for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1) and the amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 7) are denied and the action is dismissed for
the reasons stated in this order. 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
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 8th day of

July , 2015.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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