Frazier v. Suthers et al
ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/21/15. A certificate of appealability is denied. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01031-GPG
FELA J. FRAZIER,
JOHN CHAPDELAIN, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER TO DISMISS
Applicant, Fela J. Frazier, a state prisoner in the custody of the Colorado
Department of Corrections, currently is incarcerated at the Sterling Correctional Facility in
Sterling, Colorado. Applicant initiated this action by filing pro se an Application for a Writ
of Habeas Corpus. He currently is serving sentences for judgments of conviction imposed
in El Paso County District Court cases 97CR2533, 97CR4633, 98CR109, and 07CR487.
On July 2, 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 on July 22, 2015 (ECF No. 9). Applicant
has not filed a reply.
The Court must construe the Application liberally because Applicant 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 does not “assume the
role of advocate for the pro se litigant.” See Hall, 935 F.2d at 1110. For the reasons stated
below, the Court will dismiss the habeas corpus action because the claim raised has been
I. Relevant Factual and Procedural History
On August 2, 2007, Mr. Frazier was convicted by a jury in El Paso County District
Court Case No. 07CR487 of escape, a class-three felony. ECF No. 9-1. The trial court
also found that the prosecution had proved three habitual criminal counts and sentenced
Mr. Frazier to the DOC for a term of forty-eight years. Id. Following an unsuccessful
proportionality review of his sentence, Mr. Frazier filed an appeal on December 19, 2007,
challenging only his sentence. ECF No. 9-4 (opening brief in No. 07CA2478). On July 7,
2011, the Colorado Court of Appeals affirmed, ECF No. 9-5 (People v. Frazier, No.
07CA2478 (Colo. Ct. App. July 7, 2011) (not published)). On February 6, 2012, the
Colorado Supreme Court denied certiorari review. ECF No. 9-6.
On March 22, 2012, Mr. Frazier filed a postconviction motion pursuant to Rule 35
of the Colorado Rules of Criminal Procedure with the trial court. In that motion, Applicant
raised two claims: that he was unlawfully charged with escape by the forgery of Mark
Allison, his parole officer; and 2) that the trial transcript showed that his parole officer
confessed that he forged the escape charge he was convicted of. On April 5, 2012, the trial
court denied the motion, ECF No. 9-3 (Order Regarding Petition for Postconviction Relief
Pursuant to Crim. P. 35(c)). Mr. Frazier did not appeal from the denial of the motion.
Instead, on April 13, 2012, he filed a second Colo. R. Crim. P. 35(c) postconviction motion.
ECF No. 9-1, p. 5. It does not appear from the state court record that the trial court ruled
on the motion.
On October 17, 2012, Applicant filed his first federal petition under 28 U.S.C. § 2254
in this Court in case 12-cv-02762-LTB.
In that action, Applicant filed an amended
application raising the single claim that his federal constitutional rights were violated when
his parole officer allegedly forged the arrest warrant affidavit. This Court denied the
application because applicant’s claim was procedurally barred because he had failed to
present his claim to all three levels of review in the Colorado courts in that he had failed to
appeal the denial of his first postconviction moiton. Applicant did not appeal this Court’s
On August 8, 2014, applicant filed a third motion for postconviction relief in the
Colorado state courts, ECF No. 9-1, p. 5. On August 15, 2014, the court denied the motion
as untimely. Id. Applicant did not appeal this determination. A month before he filed the
third motion, Applicant filed a state habeas petition in which he alleged that his sentence
was imposed in an illegal manner and that his parole officer had made false statements in
obtaining his arrest, ECF No. 9-7. The trial court denied the petition on July 23, 2014,
because it was facially insufficient and addressed matters not appropriate for habeas
corpus, ECF No. 9-8. After the 49-day appeals period had expired, on October 7, 2014,
Applicant filed an original petition in the Colorado Supreme Court raising five claims all
based on the factual allegation that his parole officer had forged the arrest affidavit, ECF
When Applicant failed to comply with the Supreme Court’s order to cure
deficiencies, ECF No. 9-11, the Court dismissed the action, ECF No. 9-12.
On May 13, 2015, Applicant filed his present Application under § 2254 in this action.
This Court found that applicant appeared to be claiming that Colo. Rev. Stat. § 17-27.5-104
is an illegal bill of attainder because it increases parolees’ sentences by adding a new
charge of escape instead of treating escape as a parole violation, ECF No. 3. Thereafter,
Applicant filed an application under § 2241 asserting the single claim “that his]constitutional
rights were violated due to the fact that the execution of his sentence stems from a [sic]
illegal bill of attainder, statute CRS 17-27.5-104, when Mr. Frazier was placed under an
attainded [sic] statute CRS 17-27.5-104 on 8-3-2006. His constitutional rights were violated
due to the new offense that statute creates which would arise from a violation of a condition
of statute created by legislation.” ECF No. 4, p. 2. On July 2, 2015, this Court directed
Respondents to file a preliminary response addressing the affirmative defenses of
timeliness, exhaustion and procedural default. ECF No. 5.
On July 22, 2015, Respondents filed their preliminary response (ECF No. 9).
Although he was given an opportunity to do so, Mr. Frazier has not filed a reply. For the
reasons set forth below, the Amended Application will be dismissed because the claim has
been procedurally defaulted.
II. Procedural Requirements for Federal Habeas Corpus Review
Before this Court can address the merits of Applicant’s claim, it is necessary to
examine whether this Application fulfills the applicable procedural requirements under the
federal habeas corpus statute.
The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require
a state prisoner to exhaust available state court remedies before seeking federal habeas
corpus relief. To comply with the exhaustion requirement, a state prisoner first must have
"fairly presented" his constitutional and federal law issues to the state courts through direct
appeal, collateral review, state habeas proceedings, mandamus proceedings, or other
available procedures for judicial review in accordance with the state’s procedural
requirements. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989). To "fairly present"
a claim, a petitioner must present a federal claim's factual and legal substance to the state
courts in a manner that puts them on notice that a federal claim is being asserted. See
Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270,
277-78 (1971). 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 or that a somewhat similar state-law claim
was made.” Harless, 459 U.S. at 6 (internal citations omitted). 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). Nonetheless, even if a
state court fails to consider the constitutional claim, it is exhausted as long as the state
court had the opportunity to address it.
In addition, in order to exhaust his claims, a habeas corpus petitioner must "properly
present" his claims to the state courts. In this regard, a petitioner must invoke "one
complete round" of the applicable State's appellate review process, thereby giving the
courts of that State "one full opportunity" to resolve any issues relevant to such claims.
O'Sullivan v. Boerckel, 526 U.S. 838, 845(1999). 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).
Beyond questions of exhaustion, a federal court may be precluded from reviewing
claims under the “procedural default doctrine.” Gray v. Netherland, 518 U.S. 152, 162
(1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991).
Like the exhaustion
requirement, the procedural default doctrine was developed to promote our dual judicial
system and, in turn, it is based upon the “independent and adequate state law grounds”
It is well established that federal courts will not review questions of
federal law presented in a habeas petition when the state court's decision
rests upon a state-law ground that is independent of the federal question and
adequate to support the judgment. In the context of federal habeas
proceedings, the independent and adequate state ground doctrine is
designed to ensure that the States' interest in correcting their own mistakes
is respected in all federal habeas cases. When a petitioner fails to properly
raise his federal claims in state court, he deprives the State of an opportunity
to address those claims in the first instance and frustrates the State's ability
to honor his constitutional rights. Therefore, consistent with the longstanding
requirement that habeas petitioners must exhaust available state remedies
before seeking relief in federal court, we have held that when a petitioner fails
to raise his federal claims in compliance with relevant state procedural rules,
the state court's refusal to adjudicate the claim ordinarily qualifies as an
independent and adequate state ground for denying federal review.
Cone v. Bell, 556 U.S. 449, 465 (2009) (internal quotations and citations omitted).
“A state procedural ground is independent if it relies on state law, rather than federal
law, as the basis for the decision . . . . For the state ground to be adequate, it must be
strictly or regularly followed and applied evenhandedly to all similar claims.” Hickman v.
Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (internal quotations and citations omitted).
See also Dugger v. Adams, 489 U.S. 401, 410, n. 6 (1989) (holding that a state rule is
adequate to preclude federal habeas corpus review if it is applied by state courts in “the
vast majority of cases.”).
Moreover, if a habeas applicant “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, 501 U.S. 722 at 735 n.1; see also Harris v. Reed, 489 U.S. 255, 269–70 (1989);
Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (“ ‘Anticipatory procedural
bar’ occurs when the federal courts apply procedural bar to an unexhausted claim that
would be procedurally barred under state law if the petitioner returned to state court to
exhaust it.”) (citation omitted). Thus, if it is obvious that an unexhausted claim would be
procedurally barred in state court, the claim is subject to an anticipatory procedural bar and
is procedurally barred from federal habeas review. See, e.g., Rea v. Suthers, 402 F. App’x
329, 331 (10th Cir. 2010); Burton v. Zavaras, 340 F. App’x 453, 454 (10th Cir. 2009);
Williams v. Broaddus, 331 F. App’x 560, 563 (10th Cir. 2009).
An applicant whose constitutional claims have not been addressed on the merits due
to procedural default can overcome the default, thereby allowing federal court review, if he
or she can demonstrate either: 1) “cause” for the default and “actual prejudice” as a result
of the alleged violation of federal law; or 2) failure to consider the claims will result in a
“fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Mr. Frazier’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).
To demonstrate cause for his procedural default, Mr. Frazier must show that some
objective factor external to the defense impeded his ability to comply with the relevant
procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986); United States v. Salazar,
323 F.3d 852, 855 (10th Cir. 2003). “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].” McClesky v. Zant, 499 U.S. 467, 493-94 (1991) (internal quotation
marks omitted). If Mr. Frazier 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; see also United States v. Cervini, 379 F.3d 987, 991-92 (10th Cir. 2004).
“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).
III. Asserted Claim
Respondents argue that Mr. Frazier failed to satisfy the exhaustion requirement as
to his asserted federal constitutional claim. In this regard, they assert that Applicant has
never raised his bill of attainder claim in state court. Specifically, they contend that he did
not raise it his direct appeal, he did not raise it in his first state postconviction motion, and
he did not raise it in either of his state habeas petitions. Moreover, even if he did raise it
in his habeas or postconviction motions, Applicant never appealed the disposition of any
As such, he never invoked one complete round of Colorado’s
established appellate review process. See Boerckel, 526 U.S. at 845.
The time to appeal from the orders denying his postconviction motions and state
habeas petitions has expired. See Colo. App. R. 4(b) (2011) (subsequently amended and
adopted December 14, 2011, effective July 1, 2012, to allow forty-nine days for appeal).
Even if Mr. Frazier had raised the federal constitutional claim in the Colo. R. Crim. P. 35(c)
postconviction motion he filed on August 8, 2014 the claim still would not be exhausted
because it does not appear from the state court record that he appealed the denial of this
motion, which was denied as untimely by the District Court. See ECF No. 9-1, at p 5.
Respondents further contend Mr. Frazier’s claim is barred by the doctrine of
anticipatory procedural default. As previously stated, Mr. Frazier allowed the time to appeal
denying his postconviction motions and state habeas petitions to expire. A new Colo. R.
Crim. P. 35(c) postconviction motion would be rejected as successive, an abuse of process
and/or untimely. 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,” subject to exceptions not applicable here); see also People v.
Rodriguez, 914 P.2d 230, 252-55 (Colo. 1996).
As a result, the Court finds that Mr. Frazier’s claim is procedurally defaulted. As
stated previously, this federal court may not review his defaulted claim unless he
demonstrates cause and prejudice for his default or establishes a fundamental miscarriage
of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). To satisfy the cause standard,
an applicant must demonstrate that some objective factor external to the defense impeded
his or her efforts to raise the claim in state court. McCleskey v. Zant, 499 U.S. 467, 493
(1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). Applicant has not established cause
for defaulting his claim in state court. Moreover, to show prejudice, an applicant must
demonstrate that the error worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions, not merely that the error created a
“possibility of prejudice.” Carrier, 477 U.S. at 494. It is the defendant's burden to establish
a reasonable probability of a different result. Strickler v. Greene, 527 U.S. 263, 291 (1999).
Applicant has failed to establish the prejudice required to overcome his procedural default
for failing to raise his claim in a proper and timely manner.
Finally, Applicant also has not demonstrated that a fundamental miscarriage of
justice will result from the failure of this Court to review his claim. In Schlup v. Delo, 513
U.S. 298 (1995), the Supreme Court explained the narrow class of cases implicating a
fundamental miscarriage of justice. Specifically, the Court defined the miscarriage of
justice exception by holding that a habeas petitioner is required to show that “a
constitutional violation has probably resulted in the conviction of one who is actually
innocent.” Id. at 327 (quoting Carrier, 477 U.S. at 496). The Court instructed that “[t]o be
credible, such a claim requires 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.” Id. at
324. The Court further explained that “[t]o establish the requisite probability, the petitioner
must show that it is more likely than not that no reasonable juror would have convicted him
in the light of the new evidence. The petitioner thus is required to make a stronger showing
than that needed to establish prejudice.” Id. at 327.
The federal courts, including the Court of Appeals for the Tenth Circuit, are in
agreement that, in order to show a fundamental miscarriage of justice under the Schlup
standard, a petitioner must offer new or reliable evidence in support of his claim of factual
innocence. See, e.g., Frost v. Pryor, 749 F.3d 1212, 1231–32 (10th Cir. 2014); Keller v.
Larkins, 251 F.3d 408, 415–16 (3d Cir. 2001); Bannister v. Delo, 100 F.3d 610, 624 (8th Cir.
1996), cert. denied, 521 U.S. 1126 (1997). Moreover, a claim of actual innocence must be
based on new evidence suggesting "factual innocence, not mere legal insufficiency."
Bousley v. United States, 523 U.S. 614, 623 (1998); see also Calderon v. Thompson, 523
U.S. 538, 559 (1998) ("The miscarriage of justice exception is concerned with actual as
compared to legal innocence.... To be credible, a claim of actual innocence must be based
on reliable evidence not presented at trial." (quotations omitted)). Applicant has failed to
meet his burden in this regard.
Mr. Frazier does not allege cause or prejudice. Nor does he allege that lack of
review by this court will constitute a fundamental miscarriage of justice. Consequently, his
claim is foreclosed from habeas review. Accord Frost v. Pryor, 749 F.3d 1212, 1231–32
(10th Cir. 2014); Brewington v. Miller, 443 F. App’x 364, 368 (10th Cir. 2011).
IV. Certificate of Appealability
Section 2253 of Title 28 generally governs appeals from district court orders
regarding habeas petitions. Section 2253(c)(1)(A) provides that an appeal may not be
taken from a final order in a habeas proceeding in which the detention arises out of process
issued by a State court unless a certificate of appealability (COA) has been issued. A
certificate of appealability should be issued only when a petitioner has made a substantial
showing of a denial of a constitutional right. 28 U.S.C. § 2254(c)(2). There is a difficulty
with this provision when the District Court does not decide the case on the merits but
decides the case on a procedural ground without determining whether there has been a
denial of a constitutional right. In Slack v. McDaniel, 529 U.S. 473 (2000) the Supreme
Court held that when the district court denies a habeas petition on procedural grounds
without reaching the prisoner's underlying constitutional claim, a certificate of appealability
should issue when the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its procedural
ruling. Applying this standard to the instant case, the court concludes that jurists of reason
would not find it debatable that Petitioner has procedurally defaulted his claim. Accordingly,
a certificate of appealability will be denied.
For the reasons set forth above, the amended habeas corpus application will be
denied because the asserted claim is procedurally barred.
Furthermore, the Court 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 Mr. Frazier files a notice of appeal he also must pay the full $455.00 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 amended habeas corpus application (ECF No. 4) is DENIED
and the action is DISMISSED because the asserted claim is procedurally barred. It is
FURTHER ORDERED that a certificate of appealability is DENIED. 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
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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