Mallish v. Raemisch et al
ORDER to Dismiss in Part and for Answer, by Judge Raymond P. Moore on 02/12/2016. (cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Raymond P. Moore
Civil Action No. 15-cv-02470-RM
MICHAEL J. MALLISH,
RICK RAEMISCH, Executive Director, Colorado Dep’t of Corrections, and
CYNTHIA COFFMAN, the Attorney General of the State of Colorado,
ORDER TO DISMISS IN PART AND FOR ANSWER
Applicant, Michael J. Mallish, is in the custody of the Colorado Department of
Corrections (CDOC) at the Fremont Correctional Facility in Canón City, Colorado. He has filed
an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1)
challenging the validity of convictions and sentences imposed in the District Court of Jefferson
County, Colorado. Mr. Mallish has paid the $5.00 filing fee.
On November 12, 2015,
Magistrate Judge Gordon P. Gallagher directed Respondents to file a pre-answer response
addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of
state court remedies under 28 U.S.C. § 2254(b)(1)(A). Respondents submitted a Pre-Answer
Response (ECF No. 9) on December 8, 2015. Applicant filed a Reply (ECF No. 10) on January
The Court construes Mr. Mallish’s filings 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 act as an advocate for pro se litigants. See
Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the Application, in
I. Background and State Court Proceedings
On April 20, 2010, Applicant was convicted in Jefferson County District Court Case No.
09CR726 of attempted escape (a felony), two counts of criminal mischief (a misdemeanor), one
count of resisting arrest (a misdemeanor), and one count of harassment (a misdemeanor). (ECF
No. 1 at 3; No. 9-1, at 8-10; No. 9-4 at 3). He was adjudicated a habitual criminal with respect to
the felony charge and sentenced to a 12-year prison term with the CDOC. (ECF No. 1 at 3; No.
9-1, at 10-11).
Applicant’s convictions were affirmed on direct appeal in People v. Mallish, No.
11CA0874 (Colo. App. Feb. 24, 2014) (unpublished). (ECF No. 9-4). However, the Colorado
Court of Appeals remanded the case for correction of the mittimus to reflect the conviction and
sentence for resisting arrest. (Id. at 40). The Colorado Supreme Court denied Applicant’s
petition for certiorari review on December 8, 2014. (ECF No. 9-2).
On November 9, 2015, Mr. Mallish filed his federal application under 28 U.S.C.
§ 2254 asserting four claims for relief:
1. Applicant was deprived of his Sixth Amendment right to counsel when his
court-appointed public defender requested that Applicant undergo a competency
evaluation in custody, which conflicted with Applicant’s wish to remain free on
bond (ECF No. 1 at 6-7);
2. The trial court abused its discretion, misapplied Colorado statutes, and violated
due process by placing Applicant in custody until the competency evaluation was
completed (id. at 7-8);
3. Applicant was denied his Sixth Amendment right to conflict free counsel and to
counsel of his choice, when court-appointed defense counsel continued to
represent him after he retained private counsel on December 16, 2009 (id. at 9);
4. The prosecutor “selectively, maliciously and vindictively” prosecuted
Applicant; “acted in collusion” with the public defender to obtain a plea deal from
Applicant; and,“intentionally engaged in conduct that . . . would cause
[Applicant’s] rights to be infringed upon and violated” (id. at 9-10).
In the Pre-Answer Response, Respondents concede that the Application is timely. (ECF
No. 9 at 3-5). Respondents further concede that Applicant exhausted state court remedies for
claim one. (Id. at 17-18). Respondents argue, however, that claims two, three and four are
procedurally barred. (Id. at 18-26).
II. Applicability of Procedural Bar
A. Standard of Review
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, 843 (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. 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 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 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).
B. Claim Two
In claim two, Mr. Mallish contends that the trial court abused its discretion, misapplied
Colorado statutes, and violated due process by placing him in custody until the competency
evaluation was completed. (ECF No. 1 at 7-8).
Respondents argue in the Pre-Answer Response that Applicant’s allegations of abuse of
discretion and misapplication of Colorado statutes by the trial court are not cognizable on federal
habeas review. The Court agrees. Federal habeas review is limited to claims that a state
prisoner’s custody violates the United States Constitution or other federal law. 28 U.S.C. §
2254(a). The statute does not provide a remedy for errors of state law. See Swarthout v. Cooke,
131 S.Ct. 859, 861 (2011) (per curiam); see also Estelle v. Mcguire, 502 U.S. 62, 67 (1991)
(habeas corpus does not lie to correct errors of state law).
Respondents further maintain that Applicant failed to exhaust state remedies for his
allegations that the trial court violated his due process rights by placing him in custody for the
purpose of completing a competency evaluation. (ECF No. 9 at 18-19). Respondents contend
that Applicant has committed an anticipatory procedural default of his due process claim because
he no longer has a state court remedy available. (Id.).
On direct appeal, Mr. Mallish raised four issues in his opening brief, none of which
asserted that the trial court violated his federal due process rights when it ordered him to undergo
a competency evaluation, in custody, when he was otherwise free on bond. However, in the body
of the opening brief, Mr. Mallish argued that his “commitment for mental health evaluation
violated his due process rights,” (ECF No. 9 at 45), and specifically, that his 74-day
imprisonment, for the purpose of conducting a mental heath evaluation, violated his due process
rights because he was denied notice and an opportunity to be heard on the issue before he was
taken into custody. (Id. at 47-49). Mr. Mallish contended that he “was at liberty on bond and
had satisfactorily complied with all of his bond conditions when his own counsel, a public
defender, asked for Mallish to be taken into custody for a mental health evaluation.” (Id. at 47).
Applicant maintained that he had no forewarning that defense counsel intended to ask for a
competency evaluation and, when Applicant tried to object to both the evaluation and to being
taken into custody for that purpose, the trial court refused to allow him to be heard. (Id. at 4849).
In his reply brief, Mr. Mallish again asserted a violation of his due process rights based on
the trial court’s refusal to afford him notice and an opportunity to be heard before ordering that
he be taken into custody for the purpose of a mental health evaluation. (ECF No. 9-5 at 21-25).
He also stated that he was challenging the constitutionality of COLO. REV. STAT. (C.R.S.) §
16-8.5-105(1), which gave the court discretion to order him into custody for the purposes of the
competency evaluation. (Id. at 26).
The Colorado Court of Appeals addressed Mr. Mallish’s due process claim in its decision
affirming his convictions. The state appellate court recognized that C.R.S.
affords a trial court the authority to order an in-custody competency evaluation, and concluded
that Applicant’s “due process rights were not violated when he was committed for a competency
evaluation.” (ECF No. 9-4 at 32-33). The Colorado Court of Appeals stated specifically:
“According to the plain language of the statute, the court has authority to order an in-custody
competency evaluation.” (Id. at 33) (Emphasis supplied). The state appellate court then declined
to address Applicant’s additional argument that the state statute only permits a defendant to be
committed to “the department” and not to county jail, which is what occurred in Applicant’s
case, see id. at 33, because Applicant had failed to present the exact issue to the trial court, or in
his opening brief on direct appeal. (Id. at 31, citing People v. Czemerynsky, 786 P.2d 1100, 1107
(Colo. 1990) (issues omitted from an opening brief but raised in a reply brief will not be
considered); and People v. Cagle, 751 P.2d 614, 619 (Colo. 1988) (appellate courts will not
consider constitutional issues not first presented to the trial court)).
Respondents’ contention in the Pre-Answer Response that the Colorado Court of Appeals
rejected Applicant’s due process allegations in claim two on a state procedural ground is not
accurate. Although the state appellate court declined to address the specific issue of whether the
applicable Colorado statute only permits a defendant to be committed to “the department” and
not to county jail, the state court squarely held that Applicant’s due process rights were not
violated when the trial court ordered an in-custody competency evaluation. Accordingly, the
Court rejects Respondent’s affirmative defense of procedural default with respect to the due
process allegations in claim two and instead finds that Applicant exhausted state court remedies
for the claim.
C. Claim Three
The Court has construed Mr. Mallish’s pro se allegations in the § 2254 Application
liberally as asserting a claim that he was denied his Sixth Amendment right to conflict free
counsel and to counsel of his choice, when court-appointed defense counsel continued to
represent him after he retained private counsel on December 16, 2009. (ECF No. 1 at 9).
Respondents interpret claim three more narrowly to assert only that Applicant was denied
counsel of his choice when the trial court refused to allow him to be represented by privately7
retained counsel for the period December 16, 2009 through March 15, 2010, the date of the
conflict hearing. (ECF No. 9 at 10). Respondents argue in the Pre-Answer response that
Applicant failed to exhaust state remedies for claim three because in the opening brief, he did not
specifically challenge the court’s refusal to allow him to be represented by his attorney of choice
before the conflict hearing. (Id. at 24).
The Court does not accept the Respondents’ narrow interpretation of claim three in light
of Mr. Mallish’s allegations in the § 2254 Application that: he had a conflict with his courtappointed public defender which was brought to the attention of the trial court; he retained
private counsel to represent him; and, that the trial court refused to appoint substitute counsel
following a conflict hearing. (ECF No. 1 at 9).
In his opening brief on direct appeal, Applicant argued that the trial court deprived him of
his Sixth Amendment right to be represented by conflict-free counsel as well as his right to be
represented by counsel of his choice when the court refused to appoint substitute counsel. (ECF
No. 9-6 at 15-26, 37-45). The Colorado Court of Appeals denied the claim on the merits. (ECF
No. 9-4 at 24). Because the substance of claim three was exhausted in Applicant’s direct appeal
proceeding, the Court rejects Respondents’ assertion of the affirmative defense of procedural
default as to claim three.
D. Claim Four
In claim four, Applicant asserts that the prosecutor “selectively, maliciously and
vindictively” prosecuted him; “acted in collusion” with the public defender to obtain a plea deal
from Applicant; and,“intentionally engaged in conduct that . . . would cause [Applicant’s] rights
to be infringed upon and violated.” (ECF No. 1 at 9-10). Respondents contend in the Pre8
Answer response that Applicant failed to exhaust state remedies for claim four because he did
not raise the substance of the claim on direct appeal. (ECF No. 9 at 25).
Mr. Mallish did not assert a constitutional claim of prosecutorial misconduct in his
opening brief on direct appeal. (See generally ECF No. 9-6). Applicant’s allegations that the
prosecutor conspired with the public defender and the victim to imprison him, which were made
in the context of his claim challenging the trial court’s failure to appoint conflict-free counsel,
did not put the state appellate court on notice that he was asserting a distinct claim of
prosecutorial misconduct, in violation of his constitutional rights. (See ECF No. 9-6 at 21, 31,
33-36, 38-39). Nor did the Colorado Court of Appeals perceive that Applicant raised a claim of
prosecutorial misconduct in the opening brief. (See generally ECF No. 9-4). Consequently, the
Court agrees with Respondents that Applicant failed to exhaust state court remedies as to claim
Respondents further maintain that Mr. Mallish has committed an anticipatory procedural
default of claim four because if he attempted to raise the claim in the state courts at this time, it
would be rejected as abusive under Colo. Crim. P. Rule 35(c)(3)(VII) (directing state postconviction court to deny claims that could have been raised in a prior appeal or post-conviction
proceeding, absent certain enumerated exceptions). (ECF No. 9 at 24-25).
The State of Colorado’s bar against abusive claims is independent of federal law and
adequate to sustain a finding of procedural default. See, e.g., People v. Valdez, 178 P.3d 1269,
1275 (Colo. App. 2007) (citing Colo. R. Crim. P. 35(c)(3)(VII)); Welch v. Milyard, No. 11-1214,
436 F. App’x 861, 865-66 (10th Cir. Aug. 18, 2011) (unpublished) (concluding that claim barred
from state court review under Colo. Crim. P. Rule 35(c)(3)(VII) was procedurally defaulted on
federal habeas review); Williams v. Broaddus, No. 08-1254, 331 F. App'x 560, 563 (10th Cir.
2009) (agreeing with Colorado Court of Appeals' application of procedural bar for claims that
could have been raised on direct appeal); Gray v. Netherland, 518 U.S. 152, 161-62 (1996)
(state bar on claims that could have been presented in an earlier state court proceeding was
independent and adequate).
Moreover, none of the specifically-enumerated exceptions to the state procedural bar
appear to apply here. Mr. Mallish’s conclusory allegations that “material facts and evidence have
further developed which exposes that he was prosecuted maliciously and vindictively,” see ECF
No. 1 at 10, are vague and fail to invoke the exception for a claim that is based on newly
discovered evidence. See Colo. Crim. P. Rule 35(c)(VII)(b) (providing an exception for “[a]ny
claim based on evidence that could not have been discovered previously through the exercise of
due diligence”). See also People v. Bruebaker, 539 P.2d 1277, 1278 (1975) (bald allegation of
constitutional error in motion for postconviction relief is insufficient for review when specific
facts are not pleaded to support the claim); Hooker v. People, 477 P.2d 376 (1970) (same).
The Court finds that Applicant does not have a state court remedy available to him at this
time. As such, he must satisfy the cause and prejudice standard to excuse his anticipatory
procedural default, or demonstrate that a fundamental miscarriage of justice will result if the
Court does not review the merits of his claim. Coleman, 501 U.S. at 735 n.1; Anderson, 476
F.3d at 1139-40 n.7.
In his Reply, Mr. Mallish does not allege facts to show cause for his procedural default of
claim four, or that he is actually innocent of the crimes. As such, claim four will be dismissed as
For the reasons discussed above, it is
ORDERED that the allegations in claim two asserting an abuse of discretion by the state
trial court and a failure to comply with state statutes are DISMISSED WITHOUT PREJUDICE
because violations of state law are not redressable in a federal habeas corpus proceeding. It is
FURTHER ORDERED that claim four of the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 by a Person in State Custody (ECF No. 1) is dismissed as
procedurally barred. It is
FURTHER ORDERED that Respondents shall file an Answer to claims one, two (due
process allegations), and three, within thirty (30) days of this Order. It is
FURTHER ORDERED that Applicant may file a Reply within thirty (30) days after
Respondents file an Answer.
DATED this 12th day of February, 2016.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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