Shea v. Raemicsh et al

Filing 22

ORDER to Dismiss in Part and for Answer re: 1 Application for Writ of Habeas Corpus filed by Danny Shea. Claims 1(D) and 1(L) of the Application (ECF No. 1 ) are DISMISSED WITH PREJUDICE as procedurally barred. Claim Two is DISMISSED as rep etitive of claim 1(E). Respondents shall file an Answer to claims (1)(A) - (1)(C), claims (1)(E) - (1)(K) and claim (1)(M) of the Application within thirty days of this Order. Applicant may file a Reply within thirty days after Respondents file an Answer. By Judge William J. Martinez on 02/29/2016. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-2354-WJM
DANNY SHEA,
Plaintiff,
v.
RICK RAEMICSH, Executive Director, CDOC
THE ATTORNEY GENERAL OF STATE OF COLORADO,
Defendants.

ORDER TO DISMISS IN PART AND FOR ANSWER

Applicant, Danny Shea, is currently incarcerated in the Southern Ohio
Correctional Facility. On October 23, 2015, Mr. Shea, acting pro se, filed an Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) (the
“Application”) challenging the validity of his Colorado conviction and sentence in Denver
County District Court case number 04CR4896. He has paid the $5.00 f iling fee.
On October 26, 2015, U.S. Magistrate Judge Gordon P. Gallagher ordered
Respondents to file a Pre-Answer Response limited to addressing the affirmative
defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court
remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) if Respondents intended to raise either
or both of those defenses in this action. (ECF No. 3). Respondents filed their PreAnswer Response on November 10, 2015 (ECF No. 8) arguing that two of the claims
were procedurally barred and one of the claims was repetitive. Respondents conceded

that the Application was timely and that the remaining claims were exhausted. After
receiving two extensions of time, Mr. Shea filed a Reply to the Pre-Answer Response
on December 24, 2015 (ECF No. 13).
The Court must construe the Application and other papers f iled by Mr. Shea
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 (10 th Cir. 1991). However,
the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
For the reasons stated below, the Court will dismiss the Application, in part.
I. Background
A. State Court Proceedings
The Colorado Court of Appeals summarized the state court proceedings as
follows:
Shea and numerous codefendants were indicted in connection
with alleged racketeering activities of the “211 Crew,” a group of prison
inmates. Ultimately, a jury convicted Shea of violating the Colorado
Organized Crime Control Act (COCCA), conspiracy to commit second
degree assault, tampering with a witness or victim, and two counts of
conspiracy to distribute a schedule II controlled substance. T he trial
court then adjudicated Shea as a habitual crim inal and sentenced him
to an aggregate term of 112 years in the Department of Corrections
(DOC).
Shea appealed his conviction and sentence, and a division of
this court affirmed the conviction and affirmed in part and reversed in
part the sentence. People v. Shea, (Colo. App. No. 08CA1645, Aug. 4,
2011) (Shea I). On remand, the trial court modified the sentence in
part.
Thereafter, Shea filed a pro se Crim. P. 35(c) motion and two
supplements to that motion, alleging numerous claims of ineffective
assistance of trial counsel. He also moved for the appointment of
counsel to assist him in his efforts to obtain postconviction relief.
2

In a thorough and detailed order, the postconviction court denied
Shea’s motions. . . .
(ECF No. 8-7 at 2-3, People v. Shea, (Colo. App. No. 13CA1896, Apr. 2, 2015)
(not published) (Shea II)). The Colorado Court of Appeals affirmed the
postconviction court’s order. Id. The Colorado Supreme Court denied certiorari
on October 13, 2015. (ECF No. 8-9).
B. Federal Habeas Applications
On October 23, 2015, Applicant filed the current habeas application pursuant to
28 U.S.C. § 2254 in this Court. (ECF No. 1) The Application asserts the following
claims for relief:
(1)

Mr. Shea received ineffective assistance of counsel in violation of his
Sixth Amendment rights due to:
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
(I)
(J)
(K)
(L)
(M)

Counsel admitted guilt in Opening Statement;
Counsel abandoned a clearly viable defense of duress;
Failure to investigate and obtain gang expert;
Failure to object to extraordinary security measures utilized by trial
court;
Failure to submit supporting documentation to show Mr. Shea was
indigent and obtain an investigator;
Failure to object to lack of jurisdiction;
Failure to request modified Allen instruction;
Insufficient evidence to convict of habitual criminal allegations;
Failure to properly challenge a violation of Colorado's Uniform
Mandatory Disposition of Detainers Act;
Counsel represented conflicting interests and disclosed the
defense strategies to a witness for the prosecution;
Failure to call available expert witnesses;
Failure to object and preserve for appeal the use of an unqualified
gang expert by the State;
Stipulation to a criminal witnesses [sic] testimony thereby depriving
Mr. Shea's jury from assessing the witnesses [sic] credibility.

3

(2)

Mr. Shea was denied his Sixth and Fourteenth Amendment right to
effective assistance of counsel when a court appointed investigator was
denied even though Mr. Shea was indigent.

(ECF No. 1).
In the Pre-Answer Response, Respondents concede that the Application is
timely under the AEDPA one-year limitation period set forth in 28 U.S.C. § 2244(d).
(ECF No. 8 at 4). Respondents further concede that Mr. Shea has exhausted state
court remedies for claims (1)(A) – (1)(C), claims (1)(E) – (1)(K), and claim (1)(M). (Id. at
9). Respondents contend, however, that claims (1)(D) and (1)(L) are procedurally
defaulted. (Id.). Respondents also argue that claim two is the same claim as claim
(1)(E) and, therefore, it should not be considered separately. (Id. at 12).
II. Exhaustion and Procedural Default
Pursuant to 28 U.S.C. § 2254(b)(1), an application f or 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, 843 (1999); Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). T he exhaustion requirement is
satisfied once the federal claim has been presented fairly to the state courts. See
Castille v. Peoples, 489 U.S. 346, 351 (1989). 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).
Furthermore, the “substance of a federal habeas corpus claim” must have been
presented to the state courts in order to satisf y the fair presentation requirement.

4

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 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).
If a habeas petitioner “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 v. Thompson, 501 U.S. 722, 735 n.1 (1991); Anderson v.
Sirmons, 476 F.3d 1131, 1139-40 n.7 (10th Cir. 2007) (applying anticipatory procedural
bar). A claim that has been procedurally defaulted in the state courts on an
independent and adequate state procedural ground is precluded from federal habeas
review, unless the prisoner can demonstrate cause for the default and actual prejudice
as a result of the federal violation, or demonstrate that failure to consider the claim will
result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cummings v.
Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007).
A petitioner’s pro se status does not exempt him from the requirement of
demonstrating either cause and prejudice or a fundamental miscarriage of justice. See
Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994).

5

A. Claims (1)(D) and (1)(L)
Respondents contend that because Applicant f ailed to exhaust claims (1)(D) and
(1)(L) and there is no longer an available state court remedy, the claims are
procedurally barred. The Court agrees.
1. Claim (1)(D)
Claim (1)(D) alleges ineffective assistance of counsel based on counsel’s failure
to object to extraordinary security measures utilized by the trial court. The claim was
raised in Mr. Shea’s motion for postconviction relief (see ECF No. 8-2 at 12-13), but he
failed to present it on appeal (see ECF No. 8-5). As such, if any state remedy existed,
the claim would be unexhausted. However, no state remedy exists because any
attempt to exhaust the claim now would be denied as time barred, successive, and an
abuse of process. See Colo. Rev. State. § 16-5-402 (2015) (imposing three-year
limitation period on non-class 1 felonies); Colo. R. Crim. P. 35(c)(3)(VII) (“The court
shall deny any claim that could have been presented in an appeal previously brought.”);
People v. Rodriguez, 914 P.2d 230, 254-55 (1996). These state procedural grounds
are independent and adequate. See LeBere v. Abbott, 732 F.3d 1224, 1233 n.13 (10

th

Cir. 2013) (noting numerous cases have indicated Colorado’s rule barring claims that
could have been raised previously is an independent and adequate state ground
precluding federal habeas review). As such, Claim 1(D) is procedurally defaulted and
cannot be considered unless Mr. Shea demonstrates either cause and prejudice or a
fundamental miscarriage of justice. See Coleman, 501 U.S. at 750; Cummings, 506
F.3d at 1224.

6

2. Claim (1)(L)
Claim One (1)(L) is an ineffective assistance of counsel claim based on
counsel’s failure to object and preserve for appeal the use of an unqualified gang expert
by the State. The Colorado Court of Appeals refused to consider the merits of this
claim because Mr. Shea failed to adequately reassert it on appeal. (See ECF No. 8-7 at
21-22). This procedural bar is regularly followed and applied evenhandedly by
Colorado courts and, therefore, it constitutes an adequate state ground. Crosby v.
Watkins, 599 F. Supp. 2d 1257, 1267-68 (D. Colo. 2009). Additionally , the Colorado
Court of Appeals relied solely on the state procedural bar and, theref ore, it is an
independent basis. See Hickman, 160 F.3d at 1271. Accordingly, Claim 1(L) is also
procedurally defaulted and cannot be considered unless Mr. Shea dem onstrates either
cause and prejudice or a fundamental miscarriage of justice. See Coleman, 501 U.S. at
750; Cummings, 506 F.3d at 1224.
3. Cause and Actual Prejudice or a Fundamental Miscarriage of Justice
As a general rule, federal courts “do not review issues that have been defaulted
in state court on an independent and adeq uate state procedural ground, unless the
default is excused through a showing of cause and actual prejudice or a fundamental
th

miscarriage of justice.” Jackson v. Shanks, 143 F.3d 1313, 1317 (10 Cir. 1998).
Mr. Shea argues that the procedural default of Claims 1(D) and 1(L) should be
excused based on cause and prejudice. To demonstrate cause for his procedural
default, Mr. Shea 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 ,

7

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). In attempt to establish cause, Mr. Shea argues that he did not have counsel
to assist him with his postconviction motions and appeals. (ECF No. 13 at 2). However,
not having counsel for a postconviction motion is not an “objective factor external to the
defense.” As such, Mr. Shea has not demonstrated cause.
Furthermore, even if Mr. Shea was able to demonstrate cause, he must also
show “actual prejudice as a result of the alleged violation of federal law.” Coleman, 501
U.S. at 750. In an attempt to establish “prejudice,” Mr. Shea simply states that “these
two claims are of substantial merit, i.e., the prejudice component will be shown through
a merits argument on said.” (Id.) Such conclusory allegations do not demonstrate
prejudice to overcome a procedural default.
Finally, Mr. Shea makes no attempt to demonstrate that a failure to consider the
merits of his claims will result in a fundamental miscarriage of justice. A fundamental
miscarriage of justice occurs when “ a constitutional violation has probably resulted in
the conviction of one who is actually innocent.” Murray, 477 U.S. at 496. Mr. Shea fails
to demonstrate or even allege that he is actually innocent.
Accordingly, Claims (1)(D) and (1)(L) are procedurally barred and will be
dismissed.

8

4. Claim (1)(E) and Claim Two
Respondents argue that Claim (1)(E), which alleges ineffective assistance of
counsel based on counsel’s “[f]ailure to submit supporting documentation to show Mr.
Shea was indigent and obtain an investigator,” is the same claim as Claim Two, which
alleges “Mr. Shea was denied his Sixth and Fourteenth Amendment right to effective
assistance of counsel when a court appointed investigator was denied even though Mr.
Shea was indigent.” As such, Respondents believe Claim Two should not be
considered separately.
Mr. Shea argues that Claim Two is not the same as Claim 1(E) but was a claim
addressed by the Colorado Court of Appeals on Mr. Shea’s direct appeal. (ECF No. 13
at 2). The Court has reviewed the Colorado Court of Appeals decision from Mr. Shea’s
direct appeal (Id.) as well as Mr. Shea’s Opening Brief for that appeal (ECF No. 8-3).
The only claim regarding indigency that Mr. Shea raised on his direct appeal was: “Mr.
Shea was denied his state and federal right to counsel when the prosecution
successfully sought to remove court-appointed counsel on grounds that defendant did
not qualify as ‘indigent’ under Colorado law.” (Id. at 21). The Court of Appeals did
discuss that the trial court did not appoint an investigator for Mr. Shea. The Court
stated the following:
In February 2008, Shea filed a motion seeking appointment of a private
investigator at state expense on the ground that he had depleted his trust
account and was now indigent. At a hearing on the motion, the trial court denied
the request without prejudice and granted Shea the opportunity to submit
documentation under seal to support his claim that he was indigent. The record
does not reflect, and Shea does not contend, that he prov ided such
documentation to the court.
(ECF No. 8-4 at 8-9).
9

However, beyond the recitation of the factual history regarding the denial of a
court-appointed investigator, the Court of Appeals on direct appeal made no decision
regarding the appointment of an investigator. Instead, the holding of the Court of
Appeals was based on Mr. Shea’s claim that was properly presented to the Court:
whether the removal of his court-appointed counsel on the basis that he was not
“indigent” violated his state and federal rights. As such, the Court agrees with the
Respondents that Mr. Shea’s Claim 1(E) and Claim Two are repetitive and that Claim
Two should not be considered separately. Therefore, Claim Two will be dismissed.
III. Conclusion
For the reasons discussed above, it is
ORDERED that claims 1(D) and 1(L) of the Application (ECF No. 1) are
DISMISSED WITH PREJUDICE as procedurally barred. It is
FURTHER ORDERED that Claim Two is DISMISSED as repetitive of claim 1(E).
It is
FURTHER ORDERED that Respondents shall file an Answer to claims (1)(A) –
(1)(C), claims (1)(E) – (1)(K) and claim (1)(M) of the Application within thirty days of
this Order. It is
FURTHER ORDERED that Applicant may file a Reply within thirty days after
Respondents file an Answer.

10

Dated this 29th day of February, 2016.
BY THE COURT:

__________________________
William J. Martínez
United States District Judge

11