Stephenson v. Gray et al
ORDER; 26 Motion to Reconsider Order to Dismiss in Part; To Amend Claim 5; and to Appoint an Attorney is DENIED as to the reconsideration of the Courts dismissal of Claim Four; DENIED as to the request for appointment of counsel; and GRANTED a s to the amendment of Claim Five. That Claims Three and Six in the Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [#1] are DISMISSED with prejudice as procedurally defaulted. 38 Motion to Deny Further Requests for Extensions of Time is DENIED as moot, by Magistrate Judge Kristen L. Mix on 3/29/16.(morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01146-KLM
DAVIS T. STEPHENSON,
PAUL GRAY, Colorado Division of Adult Parole, and
CYNTHIA COFFMAN, Attorney General of the State of Colorado,
This matter is before the Court on the Motion to Reconsider Order to Dismiss in
Part; To Amend Claim 5; and to Appoint an Attorney [#26]1 (the “Motion”) filed pro se
by Applicant, Davis T. Stephenson, on October 9, 2015. Respondents filed a “Response
to Motion to Reconsider and Amend” [#39] on February 2, 2016.
The Court must construe the Motion and other papers filed by Mr. Stephenson
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.
I. Procedural Background
On June 1, 2015, Mr. Stephenson initiated this action by filing pro se an Application
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [#1] (the “Application”) challenging
“[#26] is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the court’s electronic case filing and management system
(CM/ECF). The Court uses this convention throughout this Order.
the validity of his conviction and sentence in Case No. 04CR95 in the District Court of La
Plata County, Colorado. In the Application, Mr. Stephenson raised the following seven
claims for relief:
Colorado’s criminal libel statute violates the First Amendment and
“Supreme Court rulings,” and Applicant’s prosecution under that
statute violated the Equal Protection Clause of the Fourteenth
Amendment (“Claim One”);
Applicant’s sentence was grossly disproportionate to his crimes, in
violation of the Eighth Amendment (“Claim Two”);
Applicant’s “unprepared” trial counsel violated his Sixth Amendment
right to competent attorney representation (“Claim Three”);
There was insufficient evidence to support Applicant’s forgery
convictions because there was no intent to defraud or to gain a benefit
An “[o]vertly retaliatory search warrant was in violation of the First and
Fourth Amendments” (“Claim Five”);
The state lacked subject matter jurisdiction over two counts of which
Applicant was convicted (“Claim Six”); and
Applicant’s simultaneous convictions for forgery and possession of a
forged instrument in relation to the same text violated the Fourteenth
Amendment’s equal protection guarantee (“Claim Seven”). [#1, at 2-5].
On September 25, 2015, the Court entered an Order to Dismiss in Part and for
Answer [#21] (the “September 25 Order”).
In the September 25 Order, the Court
determined that Claim Five and the portion of Claim One challenging the constitutionality
of the state criminal libel statute on First Amendment grounds were exhausted. [See id.,
at 6-12, 17]. The Court determined that Claims Three and Six were unexhausted but
declined to resolve whether Claims Three and Six were subject to an anticipatory
procedural default because Mr. Stephenson’s factual allegations concerning the withdrawal
of his state postconviction motion and waiver of his right to file any such motion in the
future in exchange for a reduction in his sentence may excuse the default through a
showing of cause and prejudice. [Id., at 15-17]. The Court also dismissed Claims Two,
Four, Seven, and the portion of Claim One challenging Mr. Stephenson’s prosecution under
the criminal libel statute as violating the equal protection guarantee of the Fourteenth
Amendment as unexhausted and procedurally defaulted. [Id., at 12-15, 17].
In the September 25 Order, the Court specifically determined that Claim Four was
not fairly presented to the state courts because Mr. Stephenson did not raise the claim in
his opening brief on direct appeal and inclusion of the claim for the first time in a petition
for writ of certiorari did not demonstrate that the claim was fairly presented to the highest
state court. [Id., at 13]. Because Colorado appellate courts do not review issues that were
not raised in the lower courts, the Court found that Mr. Stephenson failed to demonstrate
that Claim Four was exhausted. [Id.]. In addition, the Court determined that Claim Four
was procedurally defaulted because it would be barred under Colo. R. Crim. P.
35(c)(3)(VII). [Id., at 14]. Finally, the Court concluded that Mr. Stephenson did not make
the necessary showing of cause and prejudice, or actual innocence to excuse the
procedural default of Claim Four. [Id.].
On October 9, 2015, Mr. Stephenson filed the Motion asking the Court to reconsider
the dismissal of Claim Four, seeking leave to amend Claim Five, and requesting
appointment of counsel. [See #26].
II. Motion to Reconsider
The Court first will address Mr. Stephenson’s request to reconsider the dismissal of
Claim Four, which alleged that the evidence was insufficient to support his forgery
convictions because there was no intent to defraud. Although, Mr. Stephenson does not
identify the legal authority under which he brings the motion to reconsider, the Court
construes the Motion liberally as “an interlocutory motion invoking [the Court’s] general
discretionary authority to review and revise interlocutory rulings prior to entry of final
judgment.” Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991).
In the Motion, Mr. Stephenson maintains that the Court should reconsider its
determination that Claim Four was procedurally defaulted because his attorney’s “refusal
to include compelling arguments in her opening brief despite [Mr. Stephenson’s] repeated
requests constitutes ‘some objective factor’ that impeded his ability to comply with the
state’s procedural rule.” [#26, at 1-2]. Mr. Stephenson further argues that his attorney
“was later found guilty of misconduct by the Colorado Supreme Court of Attorney
Regulation in relation to her refusal to supplement the record with the transcripts on
appeal,” which “supports [Mr. Stephenson’s] request that claim 4 be included because it
was omitted in the opening brief due to the appellate attorney’s misconduct, and that he
made repeated attempts to include it.” [Id.]. Mr. Stephenson also contends that “the State
Court conceded that [Mr. Stephenson’s] appellate attorney was grossly ineffective when
it reduced [Mr. Stephenson’s] sentence in order to forestall a Crim. P. 35(c) hearing.” [Id.].
To demonstrate cause for the procedural default, Mr. Stephenson 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); see also Coleman v.
Thompson, 501 U.S. 722, 753 (1991). “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). In addition, “[i]neffective assistance of counsel . . . is cause for
a procedural default . . . but [the ineffective assistance claim must] be presented to the
state courts as an independent claim before it may be used to establish cause for a
procedural default.” Murray, 477 U.S. at 488-89. “[A]n ineffective-assistance-of-counsel
claim asserted as cause for the procedural default of another claim can itself be
procedurally defaulted . . . ” Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (emphasis
added). In such a situation, a habeas petitioner must excuse an additional layer of
procedural default by satisfying the cause and prejudice standard as to the ineffective
assistance claim. See id.
Construing Mr. Stephenson’s allegations liberally, he contends that ineffective
assistance of counsel on direct appeal establishes cause for the procedural default of Claim
Four. Specifically, Mr. Stephenson argues that his counsel was “grossly ineffective”
because she failed to include in the opening brief on direct appeal the argument that there
was insufficient evidence of an intent to defraud to support a forgery conviction. [#26, at
1-2]. Because Mr. Stephenson concedes that he has not presented this claim to the state
courts as an independent ineffective assistance claim, he must excuse the additional layer
of procedural default by satisfying the cause and prejudice standard as to the ineffective
assistance claim. See Edwards, 529 U.S. at 453.
As explained in the September 25 Order, Mr. Stephenson’s factual allegations that
he withdrew his postconviction motion in state court and waived his right to file any such
motion in the future in exchange for a reduction of his sentence raised the issue of whether
he could demonstrate cause and prejudice to excuse the default of unexhausted Claims
Three and Six in the Application. [See #21, at 16]. The Court declined to resolve whether
this circumstance constituted interference by officials that makes compliance with the
State’s procedural rules impracticable.
This circumstance also is relevant in
determining whether Mr. Stephenson can demonstrate cause to excuse the procedural
default of his ineffective assistance of counsel claim, which he contends was cause for the
procedural default of Claim Four.
Respondents contend that Mr. Stephenson’s decision to withdraw his postconviction
motion in exchange for a sentence-reduction cannot excuse the default of his claims
because it was not external to the defense and does not qualify as state interference. [See
#39, at 4; #33, at 17-22]. The Court agrees.
To qualify as cause, Mr. Stephenson must show some objective factor external to
the defense impeded his efforts to comply with the State’s procedural rules. Murray, 477
U.S. at 488 (emphasis added). In other words, the cause “must be something external” to
Mr. Stephenson that “cannot fairly be attributed to him.” Coleman, 501 U.S. at 753.
Interference by officials that makes compliance with the State’s procedural rule
impracticable can constitute cause. McCleskey, 499 U.S. at 497; see e.g., Scott v. Mullin,
303 F.3d 1222, 1230 (10th Cir. 2002) (recognizing that a Brady violation for failing to
disclose the only evidence supporting a claim was interference external to the defense and
prevented petitioner from complying with state procedural rules); Johnson v. Champion,
288 F.3d 1215, 1228 (10th Cir. 2002) (finding that the state’s failure to timely provide
necessary transcripts or records qualifies as state interference); United States v. Wright,
43 F.3d 491, 498-99 (10th Cir. 1994) (deciding that a threat by the prosecution, not
supported by probable cause, to indict defendant’s family members if he did not plead guilty
established state interference that made compliance impracticable).
To show cause for the default of his ineffective assistance of counsel claim, Mr.
Stephenson relies on the fact that he entered a stipulation with the People in which he
agreed to withdraw his postconviction motion (and all ineffective assistance of counsel
claims) and waive his right to file any future postconviction motion in exchange for a
reduction of his sentence. Mr. Stephenson argues that this agreement “is a clear example
of interference by state officials” that “makes compliance with the state’s procedural rules
impracticable.” [#34, at 6]. In support, Mr. Stephenson asserts that the agreement was
“not a legitimate waiver,” “ has no validity,” “is coercive, and is tantamount to holding a gun
to [his] head.” [Id.].
Courts recognize that circumstances directly attributable to a petitioner do not qualify
as “something external to the defense” that prevents the petitioner from raising his claims
in state court. See e.g., Schneider v. McDaniel, 674 F.3d 1144, 1153-55 (9th Cir. 2012)
(holding that pro se petitioner’s mental condition cannot serve as cause for procedural
default); Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir. 1992) (deciding that
petitioner’s below-average intelligence was insufficient to establish cause); Harris v.
McAdory, 334 F.3d 665, 669 (7th Cir. 2003) (finding that borderline IQ is not external to the
defense and does not establish cause); Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004)
(holding that petitioner’s unfamiliarity with the English language was insufficient to establish
cause because it was not “external to [his] defense.”); Hull v. Freeman, 991 F.2d 86, 91
(3rd Cir. 1993) (deciding that petitioner’s borderline mental retardation was not “cause”);
Eden v. Ryan, CV-15-8020-PCT-DGC, 2016 WL 1010698, at *22 (D. Ariz. Jan. 12, 2016)
(rejecting petitioner’s ineffective assistance of counsel claim as cause because “any such
deficiency [in not bringing claims] was not external to the defense, and is chargeable to
Petitioner.”); Mathis v. Johnson, No. 11-cv-178, 2013 WL 5532327, at *2 (M.D. Ga. Oct. 4,
2013) (finding that petitioner’s failure to file proper pleading does not constitute cause
because mistake was attributable only to petitioner); Johnson v. Baenen, No. 11-cv-1137,
2013 WL 1130459, at *4 (E.D. Wis. Mar. 18, 2013) (holding that any impediment to paying
the costs associated with copying and mailing the petition was “not ‘external to the
defense,’ but within the control of” the petitioner); Thompson v. Burns, Civil No. 11-cv-2227,
2012 WL 397874, at *10 (M.D. Pa. Feb. 7, 2012) (determining that petitioner failed to
establish cause based on appellate counsel’s decision not to pursue claims on appeal
because such failure was not external to the defense).
The Court finds that the stipulation between Mr. Stephenson and the People does
not qualify as “something external” to Mr. Stephenson that prevented him from raising his
claims in state court. Mr. Stephenson was free to reject the agreement and continue to
assert his postconviction claims in state court. Instead, he chose to become a party to the
agreement and receive a reduction in his sentence. [See #33-14]. Thus, Mr. Stephenson’s
decision to enter into the stipulation with the People was not “something external” to Mr.
Stephenson that “cannot fairly be attributed to him.” Coleman, 501 U.S. at 753.
Moreover, the Court cannot find that the stipulation constitutes inference by officials
that makes compliance with the State’s procedural rule impracticable. McCleskey, 499
U.S. at 497. The record reflects that Mr. Stephenson, who was represented by counsel,
entered into a written, negotiated, and signed stipulation with the People. [See #33-14; see
also 3/13/15 Trial. Tr. 3:4-16:16]. It further reflects that the state court read the agreement
into the record, and Mr. Stephenson orally confirmed that he understood and wanted to
proceed. [See 3/13/15 Trial. Tr. 21:7-23:25].
Just as a waiver of collateral attack rights brought pursuant to a § 2255 motion is
generally enforceable in a plea agreement where the plea and waiver were knowingly and
voluntarily made, see United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001),
Mr. Stephenson’s waiver of his collateral attack rights in the stipulation should be enforced
absent any credible allegations that the plea and waiver were not knowingly and voluntarily
made. Here, Mr. Stephenson simply provides no factual basis for his assertion that the
stipulation was not valid or legitimate. His conclusory assertions that the agreement “has
no validity” or “is not a legitimate waiver,” without any evidentiary support, do not provide
a basis for relief. See e.g., United States v. McKinney, 477 Fed. App’x 497, 499-500 (10th
Cir. 2012) (dismissing claim based on conclusory statements and assertions, unsupported
by the record, that guilty plea was not entered knowingly and voluntarily); United States v.
Lambros, 614 F.2d 179, 181 (8th Cir. 1980) (holding that conclusory assertions
unsupported by specific factual allegations that his pleas were involuntary and coerced are
insufficient); Inman v. Soares, Civil Action No. 02CV01373-RPM, 2005 WL 2991952, at *2
(D. Colo. Nov. 8, 2005) (rejecting defendant’s conclusory statement that his plea was
coerced, without any factual assertions as to who or what coerced him with what, as
inadequate). See also Diventura v. Wynder, 325 Fed. App’x 71, 73-74 (3rd Cir. 2009)
(rejecting argument that petitioner was “hoodwinked out of his constitutional rights to
appeal” by agreement with prosecutor to withdraw his postconviction petition in exchange
for support of his pending clemency application by the prosecutor and trial judge).
Based on the foregoing, the Court finds that Mr. Stephenson has not demonstrated
that the failure to exhaust his ineffective assistance of counsel claim, which he asserts as
cause for the default of Claim Four, was excused under the cause and prejudice standard.
See Edwards, 529 U.S. at 453. Therefore, Mr. Stephenson has failed to demonstrate any
reason that would justify reconsidering and vacating the dismissal of Claim Four as
procedurally defaulted in the September 25 Order. Therefore, the motion to reconsider will
Furthermore, the Court concludes that Claims Three and Six in the Application also
are procedurally defaulted. As set forth in the September 25 Order, Mr. Stephenson failed
to exhaust Claims Three and Six because he did not invoke one complete round of the
state’s appellate review process when he voluntarily withdrew his postconviction motion in
exchange for a sentence reduction. [See #21, at 15]. Moreover, Mr. Stephenson is barred
from presenting Claims Three and Six to the state courts in a postconviction motion
because he has waived his right to file any such motion in the future. [Id., at 16]. Based
on the same reasons as discussed above, the Court finds that Mr. Stephenson’s decision
to withdraw his postconviction motion and waive his postconviction rights in exchange for
a reduction in his sentence was not external to him and does not constitute state
interference. Because Mr. Stephenson has not made the necessary showing of cause and
prejudice to excuse the default of Claims Three and Six, both claims will be dismissed as
III. Request to Amend
The Court next will consider Mr. Stephenson’s request to amend Claim Five in the
Application to challenge “the totality of the search warrants served in the case” and not just
the “single retaliatory search warrant referenced in the initial filing of his Petition for Writ of
Habeas Corpus.” [#26, at 3]. Mr. Stephenson argues that “upon closer examination of [his
state court filings], Petitioner discerns that a broader and more encompassing argument
is possible with regard to claim 5. Initially, Petitioner believed he was restricted to the
single retaliatory search warrant referenced in the initial filing of his Petition for Writ of
Habeas Corpus, but now sees that a challenge of the totality of the search warrants served
in this case were preserved in the appellate process.” [Id.]. As such, Mr. Stephenson
seeks “to challenge the constitutionality of the additional search warrants.”
Respondents do not object to Mr. Stephenson’s request to amend. [See #39].
An application for a writ of habeas corpus “may be amended or supplemented as
provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Rule 15(a)
of the Federal Rules of Civil Procedure provides that leave to amend “shall be freely given
when justice so requires.” Fed. R. Civ. P. 15(a).
If the underlying facts or circumstances relied upon by a plaintiff may be a
proper subject of relief, he ought to be afforded an opportunity to test his claim
on the merits. In the absence of any apparent or declared reason-such as
undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment,
futility of amendment, etc.-the leave sought should, as the rules require, be
Foman v. Davis, 371 U.S. 178, 182 (1962).
An amendment is futile if the claims are barred by the applicable statute of
limitations. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004). In such a case,
leave to amend is not appropriate unless the new claims relate back to the original timely
filed habeas corpus application under Fed. R. Civ. P. 15(c)(2). See Mayle v. Felix, 545
U.S. 644, 650 (2005).
In this case, Mr. Stephenson’s Motion to Amend appears to have been filed before
the expiration of the one-year limitation period under 28 U.S.C. § 2244(d)(1), and
Respondents do not object to the proposed amendment. Thus, the Court finds that the
amended Claim Five is timely. Moreover, there is no showing of undue delay, undue
prejudice to the opposing party, or bad faith or dilatory motive. See Frank v. U.S. West,
Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Finally, upon review of the state court filings,
including Mr. Stephenson’s opening brief on direct appeal, the Court finds that Mr.
Stephenson raised a claim challenging several search warrants as violating the Fourth
Amendment because the affidavits failed to set forth specific facts to support probable
cause. [See #11-2, at 25-29]. Therefore, the Court concludes that leave to amend should
be granted to the extent Mr. Stephenson seeks to amend Claim Five to challenge the
constitutionality of the search warrants in his case.
IV. Request for Appointment of Counsel
Finally, Mr. Stephenson requests appointment of counsel because (1) “of the
important First Amendment implications of the criminal libel statute;” and (2) “he lives in a
rural area without access to legal research materials and no means of subscribing to Lexis
or other legal databases, and while, he has a bachelor’s degree in English, his legal
knowledge is limited.” [#26, at 3].
“There is no constitutional right to counsel beyond the direct appeal of a criminal
conviction,” Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir. 2008), and decisions
regarding appointment of counsel in habeas corpus proceedings generally are “left to the
court’s discretion,” Swazo v. Wyo. Dep’t of Corr. State Penitentiary Warden, 23 F.3d 332,
333 (10th Cir. 1994). Although, “there is a right to counsel in a habeas case when the
district court determines that an evidentiary hearing is required,” id., the Court has not
determined that an evidentiary hearing is warranted in this action.
The Court is not persuaded that appointment of counsel is necessary.
Stephenson has demonstrated an ability to present his arguments to the Court in a variety
of motions and in his substantive briefs regarding the merits of his remaining claims.
Furthermore, the Court will continue to construe Mr. Stephenson’s filings liberally. See
Haines, 404 U.S. at 520-21; Hall, 935 F.2d at 1110. Accordingly, Mr. Stephenson’s request
for appointment of counsel will be denied.
Based on the foregoing,
IT IS HEREBY ORDERED as follows:
1. That Applicant’s “Motion to Reconsider Order to Dismiss in Part; To Amend Claim
5; and to Appoint an Attorney” [#26] is DENIED as to the reconsideration of the Court’s
dismissal of Claim Four; DENIED as to the request for appointment of counsel; and
GRANTED as to the amendment of Claim Five.
2. That Claims Three and Six in the Application for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 [#1] are DISMISSED with prejudice as procedurally defaulted.
3. That Applicant’s “Motion to Deny Further Requests for Extensions of Time” [#38]
is DENIED as moot.
Dated: March 29, 2016
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