Bruce v. State of Colorado et al

Filing 31

ORDER That the Motion to Stay Probation Sentencing and Request for Clarification of Magistrates Order 26 , is denied; That the Motion to Stay Probation Sentencing and Request for Clarification of Magistrates Order 30 , is denied; That by March 17, 2016, Respondents shall file an answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases; That by March 17, 2016, Respondents shall file with the clerk of the court, in electronic format if available, a copy of the complete re cord of Applicant's state court proceedings in Case No. 11CR10091; That the clerk of the court shall serve copies of this order to the following:Clerk of the Court Denver County District Court, 1437 Bannock Street, Denver, Colorado 80202; and Court Services Manager, State Court Administrator's Office, 101 W. Colfax, Ste. 500, Denver, Colorado 80202. by Judge Robert E. Blackburn on 2/17/2016.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 15-cv-01653-REB
DOUGLAS EDWARD BRUCE,
Applicant,
v.
MARIANNE CLEMENTI, Probation Officer,
STATE OF COLORADO, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO DISMISS IN PART AND FOR ANSWER
AND TO DENY MOTION TO STAY AND CLARIFY
Blackburn, J.
I. Background
Applicant, acting pro se, initiated this action by filing an Application for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241. A review of the Application indicated
that Applicant’s claims are more appropriately addressed under 28 U.S.C. § 2254,
because Applicant is challenging the validity of his 2012 conviction and not the
execution of his sentence. Applicant was directed to submit his claims on a proper
Court-approved form that is used in filing § 2254 actions.
Applicant complied and submitted a § 2254 Court-approved form and asserted
four claims. Rather than state on the form the supporting facts for each of the four
claims, Applicant attached (1) a narrative of the state criminal proceedings; (2) a
request that his pending state probation hearings be stayed until resolution of this case;
(3) the motion to reconsider the length limit of his opening brief that he filed in the

Colorado Court of Appeals (CCA),which includes a listing of the fifty-four claims he
desired to present to the CCA; and (4) the CCA’s judgment affirming his conviction.
Respondents were directed to address 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) and/or procedural default, which they did in their Pre-Answer Response.
Respondents contend that Applicant’s four claims stated on the § 2254 form are
inadequate and do not meet the standard set forth in the Advisory Committee Note to
Rule 4, Rules Governing Habeas Corpus Cases Under Section 2254, because notice
pleading is not sufficient and Applicant must assert facts that point to a real possibility of
constitutional error.
Magistrate Judge Gordon P. Gallagher then directed Applicant to amend and
specify all grounds for relief available to him and to state the facts that support each
ground. On October 7, 2015, Applicant submitted an Amended Petition, [#13]1, and an
Attachment, [#14], that sets forth fifty-six claims. Thus, the October 7, 2015, Amended
Petition and Attachment are the operative pleadings in this case.
Because Applicant filed an amended § 2254 pleading, Respondents filed a PreAnswer Response on November 27, 2015, see [#20], that addresses the amended
pleading. On December 9, 2015, Applicant filed a Reply, [#21], to the Pre-Answer
Response. Applicant also submitted a Motion to Stay Probation Sentencing and
Request for Clarification of Magistrate’s Order, [#26]. I address the Pre-Answer
Response and Reply, along with the Motion to Stay.

1

[#13] is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.

2

The fifty-six claims Applicant raises are summarized as follows.
(1) Denial by the court of additional time to obtain counsel
and being arraigned over an objection;
(2) Denial of the right to subpoena witnesses;
(3) Denial of the right to hearings on timely written pretrial
motions;
(4) Denial of the ability to call IRS auditors or admit their
reports;
(5) Alteration of the terms of the indictment after all evidence
was completed;
(6) Lack of jurisdiction and verdicts that did not match the
charges;
(7) Denial of a jury of peers from the vicinage of the alleged
crime;
(8) Denial of the right to an impartial jury;
(9) Verdicts that lack sufficient evidence;
(10) Rejection by AG of the IRS definition of federal taxable
income, line 1 on the state income tax return;
(11) Trial court failure to tender Applicant’s jury instructions
to the jury;
(12) Denial of the right to a speedy and public trial;
(13) Trial court error by denying applicant’s request for a bill
of particulars;
(14) Refusal by prosecution to provide discovery within the
20-day deadline required by Colo. R. Crim. P. 16;
(15) Fraud by the prosecution in padding records;
(16) Prosecutorial failure to index the discovery;
(17) Trial court error by denying Applicant’s motion to
suppress bank records;

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(18) Concealment of evidence of innocence from the grand
jury by the prosecution;
(19) Denial of a state audit;
(20) Trial court openly sided against Applicant during the trial
by making derogatory remarks about individuals on
Applicant’s witness list;
(21) Prosecution repudiated its own witness;
(22) Prosecution admitted evidence with no probative value;
(23) Prosecution persuaded the jury to overrule federal law
and findings;
(24) Absence of unanimous jurors of the conviction and of a
special verdict on what four amounts jurors found to be
taxable;
(25) Prosecution deceived jurors on the definition of
“income”;
(26) Felony charges were cumulative;
(27) Prosecution wrongly charged Applicant with influence of
a public servant when he was cooperating;
(28) Criminal charges are arbitrary and capricious when a
civil resolution is available for the same action;
(29) Prosecution prevented the presentation of exculpatory
evidence;
(30) Prosecution improperly informed the jury about a pretrial
motion Applicant filed regarding the statute of limitations on
felony prosecutions;
(31) “The AG engaged in scurrilous personal attacks on
petitioner throughout the trial to inflame juror passions”;
(32) Trial court denial of Applicant’s presentation of
character evidence from two Colorado congressman;
(33) Trial court curtailing of Applicant’s redirect testimony;
(34) Trial court improper denial of Applicant’s proposed jury
4

instructions defining the terms “evading,” “income,”
“lobbying,” “good faith,” and “specific intent”;
(35) Tax refund by the state department of revenue was a
final civil finding and the state is precluded from proceeding
with a subsequent criminal proceeding regarding the refund;
(36) Withholding by the prosecution of evidence that
Applicant had been given a full civil tax refund;

(37) Improper conviction for tax evasion and fraud offenses
after 2005, when there was no 2006 or later tax return in
evidence;
(38) Trial court refused to admit evidence of Applicant’s
innocence;
(39) Lack of grand jury jurisdiction based on state statutory
requirements;
(40) Prosecution only called ten of the sixty witnesses it
endorsed;
(41) Count four is impossible because Applicant cannot be
charged for not filing returns in 2006 and 2007 and
concurrently charged with engaging in tax evasion and tax
fraud for that time period;
(42) Denial of Applicant’s written discovery requests;
(43) Lack of probable cause supporting the indictment and
denial of grand jury motions without a hearing;
(44) Misconduct during grand jury proceedings, including the
number of investigators in the grand jury room, and juror
residency and composition violated applicant’s rights to due
process and equal protection;
(45) Lack of probable cause and particularity in affidavits and
motions for orders to produce records and in grand jury
subpoenas;
(46) Errors in the jury instructions;
(47) Trial court was biased;

5

(48) Denial by trial court of most defense exhibits, then trial
court lost one of few exhibits admitted, and falsely accused
Applicant of putting admitted exhibits in the snow and
throwing exhibits in the courtroom during trial;
(49) Denial by trial court of Applicant’s right to print and
present to the jury state and federal tax law and
constitutional provisions;
(50) Denial by the trial court of Applicant’s right to present a
defense relying on tax-exempt status, non-profit mailing
status, his state non-profit standing, and sales tax
exemption;
(51) Denial by trial court of Applicant’s right to present a
defense that how a $2 million loan is used cannot disqualify
a charity because it was not and is not tax-deductible;
(52) Denial by trial court of Applicant’s right to impeach the
chief state investigator;
(53) Trial court imposed ten-hour trial days and blamed
Applicant in front of the jury for the extended days;
(54) “Filing a false state tax return is impossible when
defendant accurately listed on line one the entry on the
federal tax return line and the true amount of withholding”;
(55) Denial by trial court of Applicant’s requests to share the
grand jury transcript with prospective defense attorneys; and
(56) Trial court error by refusing to admit an exhibit quoting
Gregory v. Helvering, 69 F.2d 809, 810 (2d Cir. 1934), that
explains the difference between tax evasion and tax
avoidance.
[#14].
II. Analysis/§ 2254
Because Applicant is not represented by an attorney, I must construe the
Application liberally, which I have. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I may not act – and
have not acted – as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
6

For the following reasons, the § 2254 action will be dismissed in part because
many of the claims are barred procedurally. However, the Respondents will be directed
to answer Claims Twenty, Twenty-Eight, Thirty, Thirty-One, Thirty-Two, and ThirtyThree. Finally, Applicant’s Motion to Stay Probation will be denied.
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. Kansas 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. People, 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
(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,
365-66 (1995) (per curiam).

7

“The 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 that he has exhausted all available
state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
Respondents concede the action is timely, but they contend that all but two of the
fifty-six claims are defaulted procedurally and that the two nondefaulted claims, Claims
Thirty and Thirty-Three are unexhausted. I have reviewed all fifty-six claims and
Applicant’s direct appeal, and find as follows.
A. Procedurally Barred
In Applicant’s direct appeal, the CCA denied appellate counsel’s request to
exceed the 9,500 word limit to the opening brief and to file an addendum. See [#9-4,
#9-5, and #9-6]. Applicant had also filed a pro se request to reconsider and raised fiftyfour claims, which request was denied. See [#9-3 and #9-2]. The only claims
addressed by the CCA were the ten claims presented by counsel for the Applicant in the
opening brief submitted on May 12, 2014. See [#9-1 and #9-8].
“Federal habeas courts are prohibited from ‘review[ing] a question of federal law
decided by a state court if the decision of that court rests on a state law ground that is
independent of the federal question and adequate to support the judgment.’ ” Bunton v.
Atherton, 613 F.3d 973, 989 (10th Cir. 2010) (alteration original), cert. denied, 563 U.S.
905 (2011) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). “[W]hen 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) (citation omitted).
8

“A state procedural ground is independent if it relies on state law, rather than
federal law, as the basis for the decision.” Hickman v. Spears, 160 F.3d 1269, 1271
(10th Cir. 1998) (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). “For
the state ground to be adequate, it must be strictly or regularly followed and applied
evenhandedly to all similar claims.” Hickman, 160 F.3d at 1259 (citations and internal
quotations omitted). A state rule is adequate to preclude federal habeas corpus review
if it is applied by state courts in the “vast majority of cases.” Dugger v. Adams, 489 U.S.
401, 410 n. 6 (1989). Application of this procedural default rule in the habeas corpus
context is based on concerns of comity and federalism. Coleman, 501 U.S. at 730.
1. Hybrid Representation/Word Limits
Applicant’s pro se motion to reconsider the word limit of opening brief was filed
with the CCA on May 28, 2014, while he was represented by counsel. See [#9-2 at 1
and #12]. The motion to reconsider includes fifty-four claims in addition to the ten
claims that appellate counsel submitted in an opening brief on May 12, 2014. [#9-1 and
#9-2]. In the motion to reconsider, Applicant requested that the new fifty-four claims be
considered by the CCA in addition to the ten original claims. [#9-2 at 3].
First, Applicant’s pro se motion does not constitute fair presentation to the CCA
because there is no right to hybrid representation. See People of the State of Colo. v.
Arguello, 772 P.2d 87, 92 (Colo. 1989). A Colorado court, “may ignore” filings made by
a pro se defendant who is represented by counsel. Del Rantz v. Hartley, 577 F. App’x
805, 809 (10th Cir. 2014) (quoting People of the State of Colo. v. Gess, 250 P.3d 734,
737 (Colo. App. 2010)). The CCA’s reason for denying consideration of the pro se
motion, therefore, was based on an adequate ground that is regularly followed.

9

Furthermore, the CCA’s refusal to consider the pro se motion for an opening brief
that exceeds 9,500 words is based on state procedural ground, C.A.R. 28(g) (2012) that
is independent of federal law. Thus, federal habeas review is precluded as a matter of
law. The fifty-four claims that were presented improperly to the CCA in Applicant’s
motion to reconsider, but not in the direct appeal, are procedurally defaulted.
Unless the procedural default is excused through a showing of cause and actual
prejudice or a fundamental miscarriage of justice I will not review the issues. Jackson v.
Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998); see also Cummings v. Sirmons, 506
F.3d 1211, 1224 (10th Cir. 2007). A federal court may proceed to the merits of a
procedurally defaulted habeas claim only if the applicant establishes either cause for
default and actual prejudice or a fundamental miscarriage of justice when the merits of a
claim are not reached. See Demarest v. Price, 130 F.3d 922, 941 (10th Cir. 1997).
Applicant’s pro se status does not exempt him from the requirement of demonstrating
cause for the default and actual prejudice as a result of the alleged violation of federal
law, or demonstrating that failure to consider the claims will result in a fundamental
miscarriage of justice. See Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994).
To demonstrate cause for his procedural default, Applicant 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). Ineffective assistance of counsel may
establish cause excusing a procedural default. Jackson, 143 F.3d at 1319.
10

A word limitation does not constitute cause for the default of the fifty-four claims
that Applicant and his attorney attempted to present to the CCA in both the addendum
and motion to reconsider. See Trujillo v. Ploughe, 475 F. App’x 261, 266-67 (10th Cir.
2012) (Trujillo argued that the procedural default was due to the Colo. App. R. 28(g)
thirty-page limit). In Trujillo, the Tenth Circuit relied on United States v. CeballosMartinez, 387 F.3d 1140, 1145 (10th Cir. 2004) (the law has never been interpreted to
allow litigants to disregard established procedural rules), for the finding that a page
limitation does not constitute cause for a defendant’s procedural default. Accordingly,
Applicant has not demonstrated that some objective factor external to the defense
impeded his efforts to comply with the State’s word limitation procedural rule.
To show prejudice, an applicant must demonstrate that he suffered “actual
prejudice as a result of the alleged violation of federal law.” Coleman, 501 U.S. at 750.
Nothing Applicant asserts demonstrates actual prejudice based on his inability to file
a brief that included the new and additional fifty-four claims he now claims he was
precluded from having reviewed by the CCA.
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. A “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). A
fundamental miscarriage of justice provides only “a narrow exception to the cause
requirement where a constitutional violation has probably resulted in the conviction of
one who is actually innocent of the substantive offense.” Dretke v. Haley, 541 U.S. 386,
393 (2004) (citations and internal quotation marks omitted).
In order to demonstrate a fundamental miscarriage of justice, Applicant must
11

“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.” Schulp, 513 U.S. at 324. Applicant then
must demonstrate “that it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence.” Id. at 327.
Applicant’s claims of innocence are based on the state court record and present
no new reliable evidence circumstantiating his actual innocence. Thus, Applicant fails to
demonstrate a fundamental miscarriage of justice.
Because Applicant has failed to show cause for the default and actual prejudice
as a result of the alleged violation of federal law or demonstrated that the failure to
consider his claim will result in a fundamental miscarriage of justice, the fifty-four claims,
to the extent that they are not properly presented or subsumed in the ten claims
addressed by the CCA on direct appeal, will be dismissed as procedurally defaulted and
barred from federal habeas review.
2. Inadequate Briefing
Regarding inadequate briefing, the CCA found as follows:
II. Undeveloped Arguments
On appeal, Bruce asserts that (1) reversal is required due to
improper opinion testimony at trial; (2) the trial court erred in applying
relevance and hearsay rules by admitting prosecution evidence and
excluding defense evidence; and (3) incomplete jury instructions require
reversal. With respect to each of these contentions, however, Bruce
provides no factual or legal analysis. Instead, he provides lengthy string
cites to the record and occasional citations to legal authority, never
indicating what the record citations show, why the citations are pertinent,
or how the law applies to such evidence. It is the parties’ responsibility to
provide such analysis. Mauldin v. Lowery, 127 Colo. 234, 236, 255 P.2d
976, 977 (1953) (“It is the task of counsel to inform us, as required by our
rules, both as to the specific errors relied on and the grounds and
supporting facts and authorities therefor.”). It is not this court’s role to try
12

to discern an intelligible legal argument based on string citations to the
record or to legal authority. See United States v. Dunkel, 927 F.2d 955,
956 (7th Cir. 1991); Castillo v. Koppes-Conway, 148 P.3d 289, 291 (Colo.
App. 2006).
Because Bruce has provided no developed legal or factual
argument as to the three contentions noted above, we will not consider
these arguments. See Dunkel, 927 F.2d at 956; Mauldin, 127 Colo. at
236, 255 P.2d at 977; Castillo, 148 P.3d at 291.
ECF No. 9-8 at 5-6; People of the State of Colo. v. Bruce, No. 12CA0747, 4-5 (Colo.
App. July 16, 2015).
Colorado Appellate Rule 28(a)(4) (2012) requires a brief to state “the contentions
of the appellant with respect to the issues presented, and the reasons therefor . . . .”
The CCA will not review an opening brief on appeal where the brief is insufficient to
advise the court of the issues presented or the merits thereof. See In re Hays’ Estate,
257 P.2d 972 (1953). Furthermore, in Mauldin, the Colorado Supreme Court (CSC)
stated:
Our Court will not search through briefs to discover what errors are relied
on, and then search through the record for supporting evidence. It is the
task of counsel to inform us, as required by our rules, both as to the
specific errors relied on and the grounds and supporting facts and
authorities therefor.
Mauldin, 255 P.2d at 977.
In his reply, Applicant asserts that the three claims the CCA declined to consider
were not vague. [#21]. Applicant contends further that the claims were “simply deprived
of greater loquacity by the court of appeals imposition of its arbitrary policy, designed
intentionally and unconstitutionally to suppress the due process right to appeal any and
all appealable issues.” Id. at 8-9.

In Claim IV of his opening appellate brief, Applicant, through counsel, asserts the
13

claim deals with “rampant opinions about other witnesses, what the law was, and
whether Mr. Bruce was guilty.” [#9-1 at 52]. Applicant went on to state
[t]his includes grand jury findings, opinions of how the law should be
interpreted, who was credible, what Mr. Bruce’s [sic] was attempting, and
that Mr. Bruce was guilty. Experts are not to instruct the jury on the law or
legal standards. . . .
The errors in Mr. Bruce’s case are similar to the errors in the above
cases. It was for the jury to determine what was proven and the judge to
determine the law and properly instruct the jury. Grand jury findings and
witness opinions should have had no part in this case. Definitions of
charity, lobbying, and requirements reporting donated salary, were for the
judge to explain and the jury to decide of [sic] the facts met the law.
Id. at 52 and 54.
In Claim Five of the opening brief, Applicant, through counsel, asserts
the claim deals with the “interpretation of relevance and hearsay in the admission of
prosecution evidence and denial of defense evidence.” Id. at 56-57. Applicant went on
to state
[t]here is no hearsay exception for much of the prosecution’s evidence that
was admitted concerning statements to the grand jury, witness interviews,
and newspaper reports. However, much excluded defense evidence was
admissible. Statements from others, especially by federal and state tax
authorities stating he was giving to a legitimate charity and had reported
properly, were admissible to show Mr. Bruce’s good faith reliance thereon,
to challenge state experts, and as exculpatory evidence that cannot be
excluded.
Id. at 59.
In Claim Ten of the opening brief, Applicant, through counsel, asserts the claim
deals with
the jury instructions and argument of there being no intent requirement, no
good faith defense, the lack of unanimity requirement for the attempt to
influence, and the lack of instructions to allow the jury to decide what was
reportable income, what was a charity, whether Mr. Bruce was responsible
for the charity, what was lobbying, what the tax exempt status of the
charity was, what was evading or defeating a tax, and who had to file a
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return. . . .
When a jury could disagree on the reason for conviction, a unanimity
instruction is required . . . .
The jury should also have been instructed that the state cannot overrule
the IRS tax deductible designation. . . .
Id. at 72-73, 74, and 75.
Having reviewed Claims IV, V, and X, I find that none of the claims explicates
adequately what the record citations show, why the citations are pertinent, or how the
apposite law applies to such evidence. As a result, these three claims fail to advise the
court of the issues presented or the merits of each claim as required by Mauldin and
C.A.R. 28(a)(4) (2012). These claims, therefore, are procedurally defaulted for failure to
comply with an independent and adequate state rule.
I have considered also whether the Applicant has established either cause for
default and actual prejudice or fundamental miscarriage of justice. See Demarest, 130
F.3d at 941 (10th Cir. 1997). For the same reasons found above in addressing hybrid
representation and word limits, I conclude that the Applicant has failed to demonstrate
that some objective factor external to the defense impeded his efforts to comply with the
State’s procedural rule or that failure to waive the default will result in a fundamental
miscarriage of justice. Therefore, to the extent that any of the fifty-four claims that
Applicant raises in this action, [#14], which claims could be found to restate the issues
presented in Claims IV, V and X in the opening brief on direct appeal, are also
procedurally defaulted.
3. Claims Not Raised
Applicant presents two claims in this action which raise issues addressed in the
opening brief in state court, but which are not supported by the same arguments
15

presented in the opening brief. Claim One in this § 2254 action states that Applicant’s
Sixth and Fourteenth Amendment rights were violated because at his arraignment he
was denied additional time to obtain counsel and was arraigned over his vocal
objection. [#14 at 2]. In Claim I in the opening brief on appeal, Applicant argued that the
court denied his right to counsel because it failed to inquire whether Applicant had
waived his right to counsel until the morning of the trial. Applicant, therefore, did not
raise the denial of additional time claim in state court. Because he failed to do so the
claim is unexhausted. Pursuant to Colo. R. Crim. P. 35(c)(3)(VII), Claim One would be
denied as successive because Applicant could and should have presented the claim in
his direct appeal.
If it is obvious that an unexhausted claim would be procedurally barred in state
court, the claim is subject to an anticipatory procedural bar, see Anderson v. Sirmons,
476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (citation omitted), and is procedurally barred
from federal habeas review, Steele v. Young, 11 F.3d 1518,1524 (10th Cir. 1993) (citing
Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). It is obvious that Claim One
would be procedurally barred in state court. The claim, therefore, is anticipatorily
defaulted and barred from federal habeas review in this action.
Claim Nine in this action states that there was insufficient evidence because
none of the four sources for taxable income identified by the prosecution was income to
Applicant. [#14 at 7]. In Claim II in the opening brief on appeal, Applicant claimed that
under Cheek, evidence was insufficient because there was no proof that he “knew he
had a legal duty to account for and pay and that he knowingly failed to do so.” [#9-1 at
38]. For the same reasons stated above, this claim is successive and would be denied
under Rule 35(c)(3)(VII) as anticipatorily defaulted. Thus, Claim Nine is barred from
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federal habeas review.
4. Conclusion
I find that forty-eight of the fifty-six claims raised in this action are either
procedurally defaulted as inadequately pled on appeal or as improperly presented due
to hybrid representation or word limits or for failure to assert the claim in a state court.
The remaining six claims will be addressed below.
B. Exhausted Claims
Having reviewed and compared the fifty-six claims presented by Applicant with
the ten claims properly presented in Applicant’s opening brief on direct appeal and
considered by the CCA, I find as follows:
1) Claim Twenty was raised in Claim VIII on direct appeal;
2) Claim Twenty-Eight was raised in Claim III on direct appeal;
3) Claim Thirty was raised in Claim VI on direct appeal;
4) Claim Thirty-One was raised in Claim VII on direct appeal;
5) Claim Thirty-Two was raised in Claim VIII on direct appeal; and
6) Claim Thirty-Three was raised in Claim IX on direct appeal.
To exhaust state court remedies, a claim must be presented to the state’s
highest court if review in that court is available. See O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). Colorado law provides that
[i]n all appeals from criminal convictions or postconviction relief matters
from or after July 1, 1974, a litigant shall not be required to petition for
rehearing and certiorari following an adverse decision of the Court of
Appeals in order to be deemed to have exhausted all available state
remedies respecting a claim of error. Rather, when a claim has been
presented to the Court of Appeals or Supreme Court, and relief has been
denied, the litigant shall be deemed to have exhausted all available state
remedies.

17

Colo. App. R. 51.1(a).
In his concurring opinion in O’Sullivan, Justice Souter provides an example of
when state supreme court review is unavailable. O’Sullivan, 526 U.S. at 849. The
language Justice Souter quotes is taken from a South Carolina Supreme Court decision
in In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases,
471 S.E.2d 454 (1990), and mirrors the language in Colo. App. R. 51.1, in stating a
litigant shall not be required to petition for rehearing and certiorari following an adverse
decision of the court of appeals in order to be deemed to have exhausted all available
state remedies respecting a claim of error.
Respondents are correct that, in order to exhaust state court remedies, a claim
must be presented to the state’s highest court if review in that court is available. See
O’Sullivan, 526 U.S. at 845. However, “nothing in the exhaustion doctrine requir[es]
federal courts to ignore a state law or rule providing that a given procedure is not
available.” Id. at 847-48 (citation and internal quotations omitted). If a state articulates
that a certain avenue for relief is not part of its standard appellate review process, it is
not necessary for a defendant to pursue that avenue futilely to exhaust state remedies.
See id.
Furthermore, four circuit courts have concluded that state rules similar to Colo.
App. R. 51.1(a) eliminate the need to seek review in the state’s highest court to satisfy
the exhaustion requirement. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir.
2004); Adams v. Holland, 330 F.3d 398, 401-04 (6th Cir. 2003); Randolph v. Kemna,
276 F.3d 401, 403-05 (8th Cir. 2002); Swoopes v. Sublett, 196 F.3d 1008, 1009-10 (9th
Cir. 1999).

18

I am not persuaded by Respondents’ arguments to the contrary and do not find
the Tenth Circuit’s comments in Prendergast v. Clements, 699 F.3d 1182, 1184 n.2
(10th Cir. 2012), nor the exhaustion discussion in Vreeland v. Davis, 543 F. App’x 739
(10th Cir. 2013) (certiorari review was pending), or Frazier v. Werholtz, 543 F. App’x
799, 802 (10th Cir. 2013) (defendant had sought certiorari review and not included
claim), dispositive for finding that habeas applicants must present federal claims to the
CSC.
Review, therefore, in the CSC is not required to exhaust state remedies if the
claim in question was presented fairly to and relief was denied by the CCA. Nothing
Respondents present changes the Court’s position on Rule 51.1(a). Accordingly,
Claims Twenty, Twenty-Eight, Thirty, Thirty-One, Thirty-Two, and Thirty-Three are
deemed exhausted and subject to a review on the merits. Thus, Respondents will be
directed to address these claims on the merits.
III. Motions to Stay Probation Sentencing
In two duplicate motions [#26 & #30], Applicant requests a stay of his probation
revocation proceeding. Applicant asserts that as of January 26, 2016, he learned the
prosecution is seeking to set a date for a resentencing hearing based on Applicant’s
“technical” probation violation found by the Denver Court. [#26 at 1]. Applicant also
attached a copy of the email from the prosecution that indicates the resentencing
hearing may be set as early as February 12, 2016. Id. at 5.
Applicant contends that a sentence would greatly interfere with the processing of
this action. Id. at 2. Applicant requests that he be afforded the same due process he
was given in a prior case, where he had filed a federal habeas application and was
awaiting a hearing. Id. Applicant contends in the prior federal habeas action he was
19

given a hearing, without a “flood of pre-hearing pleadings,” and granted habeas relief
within twenty minute of the hearing that “summarily” overturned the conviction. Id.
Applicant further asserts that he will be “greatly impaired in this application if
placed in a prison or jail cell. He may not be able to attend the evidentiary hearing, nor
to gather evidence for use in that hearing, nor even to communicate with the court.” Id.
Applicant contends the presiding state judge has reversed her initial promise in open
court that she would not complete the probation violation hearing or sentence him until
this habeas proceeding was concluded. Id. at 3.
Applicant has asked also for a stay of the pending probation revocation hearings
in other pleadings and papers he has filed in this action. In the August 10, 2015
Amended Application, Applicant asserts that the basis for his probation revocation
hearing is six petty charges that pertain to only “technical” infractions. [#4 at 22]. He
asserts further that three other charges were added regarding out-of-state properties for
which there is a request for jail time. Id. Applicant contends the three new charges
were added because the complaint regarding the six charges is “falling apart.” Id.
Additionally, Applicant argues that he does not have an adequate forum in state
court to hear the claims he has raised in this action, because the state judge refused to
hear the claims (an apparent reference to those claims that he is raising regarding the
2012 conviction) and closed the testimony in the revocation hearing. Reply to Supp.,
[#16, at 1-2]. Absent extraordinary or special circumstances, not present here, federal
courts are prohibited from interfering with ongoing state criminal proceedings. See
Younger v. Harris, 401 U.S. 37 (1971); Phelps v. Hamilton (Phelps II), 122 F.3d 885,
889 (10th Cir. 1997). Abstention under Younger is jurisdictional in nature, see D.L. v.
Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004), and is appropriate
20

when three conditions are met:
First, there must be ongoing state criminal, civil, or
administrative proceedings. Second, the state court must
offer an adequate forum to hear the federal plaintiff’s claims
from the federal lawsuit. Third, the state proceeding must
involve important state interests, matters which traditionally
look to state law for their resolution or implicate separately
articulated state policies.
Taylor v. Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997). If the three requirements are
met, and no exceptions to Younger apply, a federal court must abstain from hearing the
case. See Weitzel v. Div. of Occupational & Prof’l Licensing, 240 F.3d 871, 875 (10th
Cir. 2001).
The first condition is met because Applicant’s probation revocation proceeding is
pending. The second condition is met because nothing in Applicant’s Motion
demonstrates that the state criminal proceeding is an inadequate forum for review of the
pending sentencing hearing. This is not a situation that Applicant has been
resentenced and is subject to a period of incarceration that will be served prior to an
opportunity to challenge the resentencing in a federal habeas action. The resentencing
hearing is a separate criminal proceeding from the 2012 conviction and sentence.
Applicant may not request and be granted a stay of the probation revocation hearing so
that he may continue to violate his probation without consequences.
Accordingly, the state court proceeding offers Applicant a forum to raise his
constitutional challenges and the stay of the probation revocation proceeding would
unavoidably invade the state court’s ability to decide the same issues. See Younger,
401 U.S. at 43-44; see also Penzoil Co. v. Texaco, Inc., 481 U.S. 1, 10-12 (1987)
(noting that Younger abstention “ ‘offers the opportunity for narrowing constructions that
might obviate the constitutional problem and intelligently mediate federal constitutional
21

concerns and state interests’ ”) (quoting Moore v. Sims, 442 U.S. 415, 429-30 (1979))).
The third condition is met because the Supreme Court “has recognized that the
States’ interest in administering their criminal justice systems free from federal
interference is one of the most powerful of the considerations that should influence a
court considering equitable types of relief.” Kelly v. Robinson, 479 U.S. 36, 49 (1986)
(citing Younger, 401 U.S. at 44-45). Thus, the State has an important interest in the
administration of its judicial system, but an even greater interest in the enforcement of
its criminal laws. See Penzoil, 481 U.S. at 12-13 (citing Juidice v. Vail, 430 U.S. 327,
335 (1977).
The three exceptions to Younger abstention are (1) “bad faith or harassment,” (2)
prosecution under a statute that is “flagrantly and patently” unconstitutional, or (3) other
“extraordinary circumstances” involving irreparable injury. Younger, 401 U.S. at 46-55.
The exceptions to Younger provide a “very narrow gate for federal intervention.” Phelps
v. Hamilton (Phelps I), 59 F.3d 1058, 1064 (10th Cir. 1995) (internal quotation marks
omitted).
Applicant, however, “may overcome the presumption of abstention ‘in cases of
proven harassment or prosecutions undertaken by state officials in bad faith without
hope of obtaining a valid conviction and perhaps in other extraordinary circumstances
where irreparable injury can be shown. . . .’ ” Phelps II, 122 F.3d at 889 (quoting Perez
v. Ledesma, 401 U.S. 82, 85 (1971)). Courts have considered three factors in
determining whether a prosecution is commenced in bad faith or to harass:
(1) whether it was frivolous or undertaken with no reasonably
objective hope of success; (2) whether it was motivated by
the defendant’s suspect class or in retaliation for the
defendant’s exercise of constitutional rights; and (3) whether
it was conducted in such a way as to constitute harassment
and an abuse of prosecutorial discretion, typically through
22

the unjustified and oppressive use of multiple prosecutions.
Phelps II, 122 F.3d at 889 (citing Phelps I, 59 F.3d at 1065). It is Applicant’s “ ‘heavy
burden’ to overcome the bar of Younger abstention by setting forth more than mere
allegations of bad faith or harassment.” Phelps I. 122 F.3d at 890.
Applicant has not satisfied his heavy burden of showing harassment through
oppressive prosecution. See Weitzel, 240 F.3d at 877 (the petitioner’s argument that he
had been prosecuted three times did not satisfy his “heavy burden” of showing bad faith
or harassment under Younger). To demonstrate such harassment, the Applicant must
demonstrate that he has faced a “substantial number of prosecutions and that a
reasonable prosecutor would not have brought such multiple charges under similar
circumstances.” Phelps I, 59 F.3d at 1066. Applicant has not satisfied this burden. His
allegation that there are bad faith purposes behind the probation violation proceedings
are his ipse dixit only. Applicant provides no factual basis to demonstrate that any of
the nine alleged violations of the terms of his probation was brought in bad faith.
Second, “[m]ere allegations of constitutional retaliation will not suffice; plaintiff
must rather allege specific facts showing retaliation because of the exercise of the
prisoner’s constitutional rights.” Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir.
1990); see Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (a plaintiff must
demonstrate that the “alleged retaliatory motives were the but for cause of the
defendants’ actions”) (citation and internal quotation marks omitted). Applicant fails to
assert specific facts showing that retaliation was the “but for” cause for the filing of the
probation violation complaints against him.
To qualify under the second exception, Applicant must show that the underlying
statute is “flagrantly and patently violative of express constitutional prohibitions in every
23

clause, sentence and paragraph, and in whatever manner and against whomever an
effort might be made to apply it.” Younger, 401 U.S. at 53-54 (quoting Watson v. Buck,
313 U.S. 387, 402 (1941)). Nothing Applicant asserts demonstrates that the apposite
statutory scheme is flagrantly and patently unconstitutional.
To establish extraordinary or special circumstances under the third exception,
Applicant must be facing an irreparable injury that is both great and immediate. See
Younger, 401 U.S. at 46. Applicant asserts he will be irreparably injured if his probation
revocation hearing is not stayed because he may be incarcerated and rendered unable
to prepare any needed filings, communicate with the court, or attend an evidentiary
hearing in this case.
Applicant’s claims are highly speculative and do not establish a factual or legal
basis for extraordinary or special circumstances. The majority of persons convicted and
sentenced in state court who challenge their conviction and sentence through an action
for habeas corpus are incarcerated and still able to prosecute the habeas actions in
federal court. Applicant, therefore, has failed to show that irreparable injury is great and
immediate if he is sentenced to incarceration.
In summary, the motions to stay [#26 & #30] will be denied because the three
conditions for abstention under Younger exist, and none of Applicant’s arguments
demonstrates that there is a basis for an exception to Younger abstention.
IV. Evidentiary Hearing
In the Request for Clarification of Magistrate’s order [#26], the Applicant
challenges, at least in part, the denial of his request for a hearing in this habeas
proceeding. His request for a hearing was denied as premature. Minute Order [#25].
An evidentiary hearing is unnecessary if the claims can be resolved on the record. See
24

Torres v. Mullin, 317 F.3d 1145, 1161 (10th Cir. 2003). Here, the state court record is
not yet before the court to assist in determining the merits of the remaining six claims.
Therefore, as found in the January 19, 2016, Minute Order, [#25], a request for a
hearing continues to be premature.
V. Orders
THEREFORE, IT IS ORDERED as follows:
1. That the Motion to Stay Probation Sentencing and Request for
Clarification of Magistrate’s Order [#26], is denied;
2. That the Motion to Stay Probation Sentencing and Request for
Clarification of Magistrate’s Order [#30], is denied;
3. That by March 17, 2016, Respondents shall file an answer in compliance with
Rule 5 of the Rules Governing Section 2254 Cases that fully addresses the merits of
Claims Twenty, Twenty-Eight, Thirty, Thirty-One, Thirty-Two, and Thirty-Three;
4. That the remaining forty-eight claims are dismissed because they are
procedurally defaulted and barred from federal habeas review;
5. That within thirty days of the filing of an answer by Respondents, Applicant
may file a reply;
6. That by March 17, 2016, Respondents shall file with the clerk of the court, in
electronic format if available, a copy of the complete record of Applicant's state court
proceedings in Case No. 11CR10091, including all documents in the state court file and
transcripts of all proceedings conducted in the state court, but excluding any physical
evidence (as opposed to documentary evidence) not relevant to the asserted claims;
and
7. That the clerk of the court shall serve copies of this order to the following:
25

(1)

Clerk of the Court
Denver County District Court
1437 Bannock Street
Denver, Colorado 80202; and

(2)

Court Services Manager
State Court Administrator's Office
101 W. Colfax, Ste. 500
Denver, Colorado 80202.

Dated February 17, 2016, at Denver, Colorado.
BY THE COURT:

26