Burkhart v. Archuletta et al
ORDER OF DISMISSAL. ORDERED that the Application for Writ of Habeas Corpus Pursuant to 28 USC 2254 (ECF No. 1) is denied and this action is dismissed. No certificate of appealability will issue. IFP on appeal is denied, by Judge Lewis T. Babcock on 1/4/2016. (agarc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02007-LTB
DAVID LEE BURKHART,
LOU ARCHEULETA, Warden; and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER OF DISMISSAL
Applicant David Lee Burkhart is in the custody of the Colorado Department of
Corrections (DOC) and currently is incarcerated at the Freemont Correctional Facility in
Canon City, Colorado. Applicant, acting pro se, initiated this action by filing an Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Applicant was granted leave
to proceed pursuant to 28 U.S.C. § 1915.
On October 26, 2015, Magistrate Judge Gordon P. Gallagher directed Respondent
to file a Response to the Application. On October 30, 2015, Respondent filed a Response,
ECF No. 8. Applicant filed a Reply on December 1, 2015 (ECF No. 13). The Court,
therefore, will proceed to address this action.
The Court must construe the Application liberally because Applicant is a pro se
litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). However, the Court should not act as a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the action will be
A. Relevant Procedural History
The Court of Appeals for Colorado set forth the following relevant background for
The prosecution brought multiple charges against defendant stemming
from the sexual assault of his stepson. As part of a plea agreement,
defendant entered a guilty plea for two counts of sexual exploitation of a
child. The district court sentenced defendant to eight years of probation for
each count to run concurrently. A condition of defendant's probation was that
he would be supervised on sex offender intensive supervision probation,
which required him to "attend and actively participate in a sex offender
evaluation and treatment·program" and "successfully complete the program
to the satisfaction of the probation officer and the treatment provider."
About a month after his sentencing, defendant's probation officer filed
a complaint seeking to revoke defendant's probation. The probation officer
alleged that defendant violated three conditions of his probation: he (1) lived
in a residence with a minor, (2) changed his residence without prior approval,
and (3) was terminated from his mandated treatment program. The district
court found that defendant violated the requirement that he not share a
residence with a minor and, as a result, was terminated from his treatment
program. The court therefore revoked his probation. The Probation
Department and prosecution recommended that defendant be sentenced to
the Department of Corrections. The district court, however, concluded the
recommended punishment was too "harsh" and instead sentenced defendant
to ninety days in the county jail and reinstated defendant's probation.
Not long thereafter, defendant's probation officer filed another
complaint to revoke defendant's probation. The officer based her complaint
on defendant's termination from his mandated treatment program. According
to the director of the treatment program, the program was "unable to
realistically treat, manage, and/ or contain [defendant], as he refuse[d] to be
accountable in the community." The director concluded that defendant's "risk
and lack of accountability necessitate[d] a higher level of treatment,"
specifically in the Department of Corrections, because defendant violated
several treatment rules by
• Failing to abide by the program's two-man accountability rule
while in the community.
• Using computer and video games without permission.
• Having a conversation with a female neighbor without prior
• Failing to complete his assignments.
• "[D]emonstrat[ing] an aggressive demeanor."
• Continuing to deny forcing anal sex on the victim, as alleged
in the underlying conviction.
The district court found that defendant violated the condition of his
probation requiring him to attend and actively participate in a sex offender
treatment program. The court specifically stated that it considered
defendant's "overall response" to treatment, rather than any one factor in
isolation. It also recognized the "extraordinary step" of the treatment
program to readmit defendant after his initial termination. The district court
then found defendant "inappropriate for probation" and imposed a sentence
to the Department of Corrections for six years.
People v. Burkhart (Colo. App. No. 09CA1846, April 11, 2013) (ECF No. 8-4, pp. 3-5).
The CCA affirmed the district court’s order revoking his probation on April 11, 2013
(ECF No. 8-4). On May 19, 2014, the Colorado Supreme Court denied Applicant’s petition
On September 25, 2014, Applicant filed a motion for sentence reconsideration
pursuant to Colo. Crim. P. 35(b).
The post-conviction court denied the motion on
November 12, 2014. Applicant did not appeal that determination.
On September 14, 2015, Applicant filed the instant action wherein he asserts that
his Due Process rights were violated when his probation was revoked based on “hypertechnical” violations. However, his assertions, taken as true, do not state a violation of his
due process rights, either procedurally or substantively.
B. 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). Even if a state court fails to consider the constitutional claim, it is still
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.
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.
Respondent argues that Applicant has not exhausted his claim because he failed
to raise a constitutional claim in the state courts.
However, his Brief does cite
Constitutional law. Thus, because it is clear that Petitioner has not demonstrated that he
is entitled to federal habeas corpus relief with respect to his claim, this Court need not
undertake the lengthy analysis of state law that would be required to determine the
applicability of the procedural default doctrine. See Lines v. Larkins, 208 F.3d 153, 165 (3d
Cir. 2000) (noting that "federal courts should be most cautious before reaching a conclusion
dependent upon an intricate analysis of state law that a claim is procedurally barred"), cert.
denied, 531 U.S. 1082 (2001). Accordingly, this Court will review Applicant’s claim under
the authority granted in 28 U.S.C. § 2254(b)(2), which provides that a federal court may
deny a petitioner's claims on the merits notwithstanding a petitioner's failure to comply with
the exhaustion requirement.
See 28 U.S.C. § 2254(b)(2) (as amended by The
Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 142 Cong. Rec.
C. Standard of Review
In the course of reviewing state criminal convictions in federal habeas corpus
proceedings, a federal court does not sit as a superstate appellate court. See Estelle v.
McGuire, 502 U.S. 62, 6768 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v.
Harris, 465 U.S. 37, 41 (1984). "When a federal district court reviews a state prisoner's
habeas [application] pursuant to 28 U.S.C. § 2254 it must decide whether the [applicant]
is ‘in custody in violation of the Constitution or laws or treaties of the United States.' The
court does not review a judgment, but the lawfulness of the [applicant's] custody
simpliciter." Coleman v. Thompson, 501 U.S. 722, 730 (1991).
Thus, pursuant to the federal habeas corpus statute, a federal court may consider
a habeas corpus petition filed by a state prisoner only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the United States. Claims based on
errors of state law or challenging a state court's interpretation of state law are not
cognizable on federal habeas review. McGuire, 502 U.S. at (1991) (“it is not the province
of a federal habeas court to reexamine state-court determinations on state-law questions.
In conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.”).
Moreover, a federal court must accord a presumption of correctness to a state
court's factual findings, which an applicant can rebut only by clear and convincing evidence.
28 U.S.C. § 2254(e). Where the state court fails to adjudicate or address the merits of a
petitioner's claims, the federal habeas court must conduct a de novo review over pure legal
questions and mixed questions of law and fact. See Romano v. Gibson, 278 F.3d 1145,
1150 (10th Cir. 2002).
D. Applicant’s Claim
In the instant action Applicant claims that his due process rights were violated when
his probation was revoked and he was sentenced to two concurrent terms of seven years
of imprisonment. "Due process" is guaranteed through the Fourteenth Amendment of the
United States Constitution. The pertinent language of the Amendment provides as follows.
Section 1. All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection of
U.S. Const. Amend. XIV, § 1 (emphasis added).
The Due Process Clause was promulgated to secure the individual from the arbitrary
exercise of the powers of government. The "procedural" aspect of the Due Process Clause
requires the government to follow appropriate procedures to promote fairness in
governmental decisions; the substantive aspect of the Clause bars certain government
actions regardless of the fairness of the procedures used to implement them so as to
prevent governmental power from being used for purposes of oppression. Daniels v.
Williams, 474 U.S. 327, 329–33 (1986). (citations omitted.)
The procedural aspect of the Due Process Clause guarantees the availability of
certain procedural mechanisms, typically the right to notice and a hearing, before the
government can deprive an individual of a liberty or property interest. To establish a
procedural due process violation, a person must demonstrate that he has been deprived
of a constitutionally-protected property or liberty interest. Daniels, 474 U.S. at 339. If a
person does not have a constitutionally-protected interest, he or she is not entitled to the
procedural protections afforded by the Due Process Clause.
A constitutionally-protected interest may arise either from the Due Process Clause
itself, or from a statute, rule, or regulation. Hewitt v. Helms, 459 U.S. 460, 466 (1983). A
liberty interest "inherent" in the Constitution arises when a prisoner has acquired a
substantial, although conditional, freedom such that the loss of liberty entailed by its
revocation is a serious deprivation requiring that the prisoner be accorded due process.
Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973). Liberty interests that fall within this
category include the revocation of parole, Morrissey v. Brewer, 408 U.S. 471 (1972), and
the revocation of probation, Gagnon, 411 U.S. at 778.
The Supreme Court has determined that Due Process requires that a probationer
is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention
to determine whether there is probable cause to believe that he has committed a violation
of his parole, and the other a somewhat more comprehensive hearing prior to the making
of the final revocation decision. Gagnon, 411 U.S. at 781-82. At the preliminary hearing,
a probationer is entitled to notice of the alleged violations of probation, an opportunity to
appear and to present evidence in his own behalf, a conditional right to confront adverse
witnesses, an independent decisionmaker, and a written report of the hearing. Id. at 786.
(citations omitted). The final hearing is a less summary one because the decision under
consideration is the ultimate decision to revoke rather than a mere determination of
probable cause, but the ‘minimum requirements of due process' include very similar
elements: (a) written notice of the claimed violations of probation; (b) disclosure to the
probationer of evidence against him; (c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to confront and cross-examine adverse
witnesses (unless the hearing officer specifically finds good cause for not allowing
confrontation); (e) a neutral and detached hearing body such as a traditional parole board,
members of which need not be judicial officers or lawyers; and (f) a written statement by
the fact-finders as to the evidence relied on and reasons for revoking probation. Id.
Here, Applicant does not challenge the procedures used in the revocation of his
probation. Instead, he claims that the trial court abused its discretion by revoking his
probation for minor technical violations. Construing his Application, liberally, this Court
assumes he is raising a substantive due process claim. In contrast to procedural due
process' focus on procedures, substantive due process prohibits certain government
actions irrespective of the procedures which attend those actions.
component of the Due Process Clause limits what governments may do regardless of the
fairness of procedures that it employs, and covers government conduct in both legislative
and executive capacities. Whereas procedural due process concerns deprivations of liberty
interests and assures that such deprivations are not accomplished unless attended by
certain procedures, substantive due process does not require a liberty interest in order to
be violated. See, e.g., Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980) (holding that denial
of parole based on considerations of race may state a claim for violation of substantive due
process even though there is no liberty interest in parole); Pittsley v. Warish, 927 F.2d 3,
6 (1st Cir. 1991) (under one theory of substantive due process "it is not required that the
plaintiffs prove a violation of a specific liberty or property interest") (citing Rochin v.
California, 342 U.S. 165,172 (1952)).
The Supreme Court has declined to set forth a precise rule that defines the scope
of impermissible "arbitrary" conduct for purposes of applying the substantive component
of the Due Process Clause. Nonetheless, the Court has clarified that governmental
conduct does not violate a person's substantive due process rights unless it amounts to an
abuse of official power that "shocks the conscience." County of Sacramento v. Lewis, 523
U.S. 833, 846 (1998).
Liberally construed and taken as true, Applicant’s allegations do not state a violation
of his substantive due process rights with respect to the court’s action in revoking his
probation. In this regard, in upholding the trial court’s determination, the CCA held as
II. Revocation of Defendant's Probation
Defendant argues that the district court erred when it found defendant
violated a condition of his probation and then abused its discretion by
revoking his probation. We disagree.
A. Standard of Review
A determination that a defendant has violated his probation is a
question of fact for the trial court. People v. Elder, 36 P.3d 172, 173 (Colo.
App. 2001). We will reverse a trial court's finding only if its judgment
contradicts "the manifest weight of the evidence." People v. Trujillo, 189
Colo. 206, 209, 539 P.2d 1234, 1236 (1975) (in department). "Once a
violation is found, the decision whether to revoke a defendant's probation is
within the trial court's discretion." Elder, 36 P.3d at 173.
Defendant contends that the trial court erred in finding that he violated
the terms and conditions of his probation because he was largely in
compliance with both the conditions of his probation and the requirements of
his treatment program. However, "if a probationer violates any condition of
an order of probation, the probation may be revoked." Id. (emphasis added);
accord People v. lckler, 877 P.2d 863, 866 (Colo. 1994).
Here, a condition of defendant's probation was that he "attend and
actively participate in a sex offender evaluation and treatment program" and
"successfully complete the program to the satisfaction of the probation officer
and the treatment provider." The treatment program provided evidence that
defendant had been terminated for violating several of its rules. Thus, the
trial court's factual finding that defendant violated the condition was not
"contrary to the manifest weight of the evidence." Trujillo, 189 Colo. at 209,
539 P.2d at 1236.
Defendant next argues that, even if he violated a condition of his
probation, the trial court abused its discretion by revoking his probation "for
[a] minor technical violation." In Ickler, however, the supreme court held
that it is not an abuse of discretion to revoke a defendant’s probation for
failing to fully cooperate with a sex offender treatment program. 877 P.2d at
867; see also People v. Colabella, 948 P.2d 77, 79-80 (Colo. App. 1997)
(holding that the trial court did not abuse its discretion in revoking probation
where the "defendant had a 'very high risk for recidivism' and ... successful
completion of appropriate treatment was a critical prerequisite to allowing him
back into the community").
Here, the director of defendant's treatment program terminated
defendant's treatment twice for violations of the program's rules. After the
first termination, the district court reinstated defendant's probation. After the
program terminated defendant's treatment a second time, the court decided
to revoke his probation because of the "safety of the community, amenability
of the defendant at rehabilitation, [and) the nature of the offense." Given
defendant's history and the consideration of the trial court, we cannot
conclude that the court abused its discretion when it revoked defendant's
The order is affirmed.
Liberally construed and taken as true, Plaintiff's allegations do not state a violation
of his substantive due process rights with respect to the Court’s action in revoking his
probation for failing to successfully complete a sex offender treatment program. Under
Colorado law, probation is a privilege, not a right. Holdren v. People, 168 Colo. 474, 478,
452 P.2d 28, 30 (1969). If a probationer violates any condition of an order of probation, the
order may be revoked. Id. See also Colo. Rev. Stat. §§ 16-11-205 and 206. At the
hearing, the prosecution has the burden of establishing by a preponderance of the
evidence the violation of a condition of probation. Colo. Rev. Stat. § 16-11-206 (3). If the
court determines that a violation of a condition of probation has been committed, it shall
either revoke or continue the probation. Colo. Rev. Stat. § 16-11-206 (5). If probation is
revoked, the court may then impose any sentence which might originally have been
imposed or granted. Id.
In Applicant’s case, the Court found, and Applicant admitted, that he did indeed
violate the conditions of his probation by failing to complete the required sex offender
treatment. In reviewing the Court’s exercise of discretion in revoking probation, this Court's
only role is to insure that the Court followed criteria appropriate, rational and consistent with
the statute and that its decision is not arbitrary and capricious nor based on impermissible
considerations. See, e.g., Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980) (finding racial
factors used to decide parole violated applicant’s substantive due process rights); Monroe
v. Thigpen, 932 F.2d 1437 (11th Cir. 1991) (holding that the defendants' admitted reliance
on false information constituted arbitrary and capricious treatment in violation of substantive
The Court identified legitimate reasons for exercising its discretion in revoking
Applicant’s probation. Applicant does not allege that his probation was revoked based on
unconstitutional criteria such as race or religion. Nothing in the record before this court
suggests that the Court exercised its discretion in either an arbitrary or capricious manner.
Although Applicant alleges that he substantially completed all of his probation conditions,
the Court clearly indicated that he failed to complete his required sex offender treatment.
Cf. Banks v. Pennsylvania Bd. of Probation and Parole, Civil No. 03–6676, 2004 WL
906296, at *4 (E.D. Pa. April 28, 2004) ("[T]he Board's decision that Plaintiff may require
continued participation in a prescriptive program does not constitute an arbitrary or
In sum, Applicant fails to show that requiring him to successfully complete a sex
offenders treatment program or other rehabilitation programs that require him to admit guilt
is conscience shocking or that such a requirement constitutes behavior that is intended to
injure him in a way that is unjustifiable by any government interest.
Here, Applicant has failed to demonstrate any violation of the Constitution, laws, or
treaties of the United States with respect to the Court’s decision in revoking his probation.
Consequently, he has failed to demonstrate that he is entitled to habeas corpus relief.
Section 2253 of the Habeas Corpus Statute provides the standards governing the
issuance of a certificate of appealability for appellate review of a district court's disposition
of a habeas petition. Section 2253 provides that "[a] certificate of appealability may issue
... only if the applicant has made a substantial showing of the denial of a constitutional right."
Applicant has not made any showing that he was denied any of his constitutional rights.
Accordingly, a certificate of appealability will be denied.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not 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
Applicant files a notice of appeal he must also pay the full $505 appellate filing fee or file a
motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth
Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Application for Writ of Habeas Corpus Pursuant to 28 USC 2254
(ECF No. 1) is DENIED and this action is DISMISSED. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
FURTHER ORDERED that a certificate of appealability is DENIED.
DATED January 4, 2016, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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