Estes v. Werlich et al
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re denying 9 Amended Application for Writ of Habeas Corpus filed by Jonathan N. Estes, and that this case be stayed pending Petitioner's exhaustion of state court remedies; ORDER denying without prejudice 70 Request for Oral Argument and for the Court to Appoint Counsel filed by Jonathan N. Estes, by Magistrate Judge Michael E. Hegarty on 1/20/2017. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00141-WJM-MEH
JONATHAN N. ESTES,
T. G. WERLICH,
M. D. CARVAJAL,
RICK RAEMISCH, and
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
[filed February 8, 2016; ECF No. 9] and Petitioner’s Request for Oral Argument and for the Court
to Appoint Counsel [filed December 30, 2016; ECF No. 70]. Petitioner alleges he is entitled to
relief, because his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668
(1984). On March 31, 2016, Respondents filed an Answer to Petitioner’s Application. After
Petitioner filed his Reply, the Honorable William J. Martinez referred the case to this Court for
issuance of a report and recommendation. ECF No. 55. The Court finds that oral argument or an
evidentiary hearing will not assist it in the adjudication of the Application and, thus, Petitioner’s
request for oral argument will be denied. Because the Court holds that some of Petitioner’s
unexhausted claims are not clearly barred by a Colorado procedural rule, the Court recommends
denying Petitioner’s Application for failure to exhaust state remedies, and staying the case until
Petitioner has asserted his claims in state court.1
In 2006, a jury in the Denver District Court convicted Petitioner of attempted first degree
murder and attempted robbery. Am. Appl. for Writ of Habeas Corpus 1–2, ECF No. 9. After
Petitioner’s direct appeals concluded on May 17, 2010, Petitioner filed a timely application for
collateral review in state court under Colo. R. Crim. P. 35(c). Public Documents 288–95. The
district court appointed counsel for Petitioner, who amended the application and alleged ineffective
assistance of trial counsel based on counsel’s failure to introduce relevant evidence, conflict of
interest, and failure to raise the marital privilege. Id. at 309–20.
After the district court held an evidentiary hearing, but while the application was still
pending, Petitioner filed a letter and supplemental, which requested a supplemental evidentiary
hearing on additional claims for ineffective assistance of trial counsel. Id. at 373–91. Petitioner
claimed he was entitled to a rehearing, because his postconviction counsel was ineffective for failing
to raise his newly-asserted claims.
Additionally, Petitioner’s postconviction counsel
acknowledged to the district court that she provided ineffective assistance by missing a critical piece
Be advised that all parties shall have fourteen (14) days after service hereof to serve and
file any written objections in order to obtain reconsideration by the District Judge to whom this
case is assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those
findings or recommendations to which the objections are being made. The District Court need
not consider frivolous, conclusive or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. §
636(b)(1). Additionally, the failure to file written objections to the proposed findings and
recommendations within fourteen (14) days after being served with a copy may bar the
aggrieved party from appealing the factual and legal findings of the Magistrate Judge that are
accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.
2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
of evidence, which would have led her to pursue different claims. Public Documents 438–39.
On April 28, 2012, the district court denied Petitioner’s Rule 35(c) application and his
request for a rehearing without analyzing the merits of Petitioner’s ineffective-assistance-ofpostconviction-counsel claim. ECF No. 20-13; Public Documents 455–61. The Colorado Court of
Appeals affirmed the district court’s decision on June 19, 2014. ECF No. 20-10. The court held that
the district court did not err when it denied Petitioner’s request for a rehearing, because Petitioner’s
request raised ineffective-assistance-of-postconviction-counsel issues, which can be determined only
after the conclusion of initial postconviction relief proceedings. Id. at 9. Because the Court had not
decided Petitioner’s postconviction appeal, Petitioner’s claim was not yet proper. Id.
After the Colorado Supreme Court denied certiorari, Petitioner filed the present Application
on February 8, 2016. Am. Appl. for Writ of Habeas Corpus, ECF No. 9. Petitioner’s Application
asserts five claims for ineffective assistance of trial counsel: (1) failure to interview or call critical
witnesses at trial, (2) failure to effectively cross examine witnesses’ testimony and correct false
testimony, (3) failure to object to prejudicial and inadmissible evidence or request a limited-purpose
jury instruction, (4) failure to object when the prosecution did not present a witness it said would
testify, and (5) pretrial counsel’s conflict of interest stemming from the public defenders’ concurrent
representation of an alternative suspect. Id. at 12–17.
Respondents filed an Answer to Petitioner’s Application on March 31, 2016. Answer to Am.
Appl. for Writ of Habeas Corpus, ECF No. 47. Respondents assert that although Petitioner has not
exhausted his present claims for ineffective assistance of trial counsel, the claims are procedurally
barred by two provisions of Colorado law: Colorado’s three-year statute of limitations on felony
postconviction collateral attacks and Colorado’s prohibition on claims that a petitioner could have
presented in an earlier motion. Id. at 8–9. According to Respondents, because Petitioner cannot
establish cause and actual prejudice for the procedural default, the Court should deny his
Application. Id. at 13–55.
Petitioner filed a Reply in Support of his Application on June 20, 2016. Reply, ECF No. 49.
Petitioner acknowledges that his claims are procedurally defaulted, but argues that he can establish
cause and prejudice. Id. Petitioner claims the actual innocence exception entitles him to review on
the merits, because witnesses have submitted affidavits to the court attesting to his innocence. Id.
at 1–2. Additionally, Petitioner asserts he can establish cause under Martinez v. Ryan, 132 S. Ct.
1309 (2012), because his ineffective-assistance claims are substantial and his postconviction counsel
was ineffective. Reply 2–14.
After an initial review of the issues in Petitioner’s Application, the Court requested
supplemental briefing on whether Colorado law would procedurally bar Petitioner from asserting
his claims in a subsequent postconviction petition. Order Requesting Suppl. Briefing, ECF No. 68.
The Court acknowledged that the procedural rules Respondents asserted apply to Petitioner’s claims.
Id. at 4. However, the Court noted that both procedural bars contain exceptions, which the parties
did not discuss in their briefs. Id. at 3–5. The Court requested briefing on whether ineffective
assistance of postconviction counsel satisfies any of these exceptions.
On December 27, 2016, Petitioner filed his supplemental brief. Pet’r’s Suppl. Br., ECF No.
69. Petitioner argues the Court should not require him to return to state court, because Martinez
does not require exhaustion of postconviction-counsel claims. Id. at 2–3. Additionally, Petitioner
asserts Colorado courts would not excuse his failure to raise the present ineffective-assistance claims
in a successive postconviction petition that he filed before he appealed his initial petition. Id. at 5.
Respondents filed their supplemental brief on January 3, 2017. Resp’ts’ Suppl. Br., ECF No.
72. Respondents assert the Court should first analyze whether Petitioner has stated a successful
Martinez claim,2 because Colorado courts will not find justifiable excuse for failure to assert his
ineffective-assistance-of-trial-counsel claims unless his postconviction counsel was ineffective. Id.
at 4. However, Respondents acknowledge that if Petitioner has asserted a meritorious Martinez
claim, “his underlying trial-counsel claims are not ‘clearly’ procedurally barred in state court,
because there is some arguable merit to the notion that he is entitled to a reinstated postconviction
Therefore, after full briefing of Petitioner’s Application, the issues pending before the Court
are whether Colorado procedural law would prevent Petitioner from raising his unexhausted
ineffective-assistance claims in state court, and if so, whether Petitioner has established cause and
prejudice for his procedural default under the actual innocence exception or Martinez. The Court
may address the merits of Petitioner’s claims only if they are procedurally barred from state-court
review and Petitioner has established cause and prejudice for the procedural default.
Exhaustion of available and adequate state court remedies is a prerequisite to habeas corpus
applications in federal court. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509 (1982). Generally,
state remedies are not exhausted until the highest state appellate court has had an opportunity to
As discussed in more detail below, a successful Martinez claim requires a petitioner to
show that his postconviction counsel was ineffective and that “the underlying ineffectiveassistance-of-trial-counsel claim is a substantial one . . . .” Martinez v. Ryan, 132 S. Ct. 1309,
consider the merits of the claim. See Pitchess v. Davis, 421 U.S. 482 (1975); Qureshi v. Diesslin,
654 F. Supp. 555 (D. Colo. 1987). However, a Colorado statute states that federal courts may
consider a claim exhausted if it has been fairly presented to the Colorado Court of Appeals; it need
not be raised to the Colorado Supreme Court. Colo. App. R. 51.1; Garrett v. Werholtz, No. 13-cv001379-MSK, 2013 WL 5289570 (D. Colo. Sept. 18, 2013). Because of the “‘strong presumption’
in favor of requiring exhaustion of state remedies,” federal habeas courts should require exhaustion
if available state remedies might exist. See Anderson v. Sirmons, 476 F.3d 1131, 1137 (10th Cir.
However, where requiring a petitioner to exhaust his state remedies would be futile because
it is clear that an independent and adequate state procedural rule would bar the petitioner’s claims,
federal habeas courts should not require the petitioner to return to state court. See id. at 1137–38;
Castille v. Peoples, 489 U.S. 346, 351 (1989) (stating that anticipatory procedural default applies
only “if it is clear that [the] claims are now procedurally barred under [state] law”). A state
procedural rule “is independent if it is separate and distinct from federal law.” Maes v. Thomas, 46
F.3d 979, 985 (10th Cir. 1995). A rule is adequate if it has been applied evenhandedly “in the vast
majority of cases.” Id. If the rule is adequate and independent, federal courts must treat the claim
as procedurally defaulted. Id. If a claim is procedurally defaulted, courts cannot review the merits
of the claim unless the petitioner shows “cause and prejudice” for failing to raise the claim in state
court. See, e.g., Francis v. Henderson, 425 U.S. 536, 543 (1976).
It is undisputed that Petitioner has not exhausted his claims, because he has not presented
the Colorado Court of Appeals with the ineffective-assistance-of-trial-counsel claims he asserts in
the present Application. Am. Appl. 3 (“All claims were not presented to the states highest court due
to errors caused by initial-collateral-review counsel.”); Answer 12 (“A review of the ineffectiveassistance claims [Petitioner] presented on postconviction appeal confirms that he did not present
the state’s appellate courts with the arguments he raises in the instant application.”). Therefore,
Petitioner must return to state court unless a procedural rule would prevent him from doing so.
Anderson v. Sirmons, 476 F.3d 1131, 1137 (10th Cir. 2007).
Having considered the arguments presented by the parties in their original and supplemental
briefs, the Court recommends finding that Colorado law would not clearly bar Petitioner from
returning to state court to present his first four ineffective-assistance claims. Petitioner’s last claim,
which alleges conflict of interest, is likely procedurally barred, and thus, technically exhausted.
However, because Petitioner’s conflict-of-interest claim is part of a mixed petition, the Court cannot
consider the merits of the claim. See Snyder v. Ortiz, 288 F. App’x 505, 509 (10th Cir. 2008); Rose
v. Lundy, 455 U.S. 509, 522 (1982). The Court may either dismiss the claim without prejudice or
stay the case until Petitioner exhausts his first four claims. Rhines v. Weber, 544 U.S. 269, 279
(2005). The Court will first address whether Petitioner’s first four ineffective-assistance claims are
procedurally defaulted. The Court will then analyze whether Petitioner’s conflict-of-interest claim
is procedurally barred, and if so, whether it would be proper to dismiss it without prejudice or stay
the case pending exhaustion of Petitioner’s first four claims.
First Four Ineffective-Assistance-of-Trial-Counsel Claims
It is undisputed that Petitioner did not raise his first four unexhausted claims in his initial
postconviction proceeding. Therefore, Colo. R. Crim. P. 35(c)(3)(VI), which prohibits claims raised
and resolved in a prior petition, does not bar Petitioner’s first four claims.3 However, Respondents
assert that two other procedural rules potentially prohibit Petitioner from asserting his claims in state
court: a three-year statute of limitations on postconviction petitions and a prohibition on petitions
asserting claims that could have been brought in a prior application. Answer 9. The Court finds that
neither of these procedural rules would clearly bar Petitioner from asserting his first four claims in
a successive state petition. After addressing an initial argument Petitioner asserts, the Court will
analyze the application of these procedural rules in turn.
In Petitioner’s Supplemental Brief, Petitioner first argues that the Court should not require
him to exhaust state remedies, because the Martinez exception does not require exhaustion of
Pet’r’s Suppl. Br. 1–2.
apparently believes that by requiring him to return to state court, this Court would be asking him to
exhaust his postconviction-counsel claims. However, a finding that Petitioner must return to state
court would be based on his failure to exhaust his trial-counsel claims, not his postconvictioncounsel claims. As explained in more detail below, Petitioner’s postconviction-counsel claims are
Petitioner’s Request for Rehearing lists a number of issues postconviction counsel
would have presented to the state district court had it not missed a critical piece of evidence,
some of which are the same or similar to those raised in Petitioner’s Application. Public
Documents 440–41. Additionally, Petitioner filed pro se motions during the pendency of his
Rule 35(c) application alleging similar issues to those before this Court. See Public Documents
237–53, 381–91. However, the Court does not believe the issues in these filings were “raised and
resolved,” as that term is used in Rule 35(c)(3)(VI). The Request for Rehearing does not discuss
the reasons why the stated errors constitute ineffective assistance of counsel. Moreover, the
district court and court of appeals did not rule on the merits of the claims in the Request for
Rehearing or Petitioner’s pro se motions. See generally Castille v. Peoples, 489 U.S. 346, 351
(1989) (stating that presenting a claim in a “procedural context in which its merits will not be
considered . . . does not, for the relevant purpose, constitute ‘fair presentation’”). Therefore,
unlike Petitioner’s conflict-of-interest claim, Petitioner’s other ineffective-assistance claims have
not been raised and resolved in a previous postconviction proceeding.
only a mechanism to avoid Colorado’s procedural bars and assert his unexhausted trial-counsel
claims in state court. Therefore, the Court does not recommend holding that Petitioner must exhaust
his postconviction-counsel claims, but only that these claims may allow Petitioner to establish an
exception to Colorado procedural rules and assert his underlying trial-counsel claims in state court.
Three-Year Statute of Limitations
Colo. Rev. Stat. § 16-5-402 provides that a defendant who has been convicted of a felony
(other than a class 1 felony) may collaterally attack the validity of that conviction only within three
years of the defendant’s final direct appeal. See People v. Hampton, 876 P.2d 1236, 1239 (Colo.
1993) (holding that the statute of limitations does not run while direct appeals are pending). In the
present case, Petitioner’s direct appeals concluded on May 17, 2010, when the Colorado Supreme
Court denied his Petition for Writ of Certiorari. Am. Appl. 3; ECF No. 20-6. Therefore, Section
16-5-402 would procedurally bar a successive petition in Colorado state court unless Petitioner
could establish an exception to the statute of limitations.
Section 16-5-402(2)(d) contains an exception for cases where the petitioner can show
“justifiable excuse or excusable neglect” for failing to seek relief within three years. In Silva v.
People, the Colorado Supreme Court discussed this exception in the present context. 156 P.3d 1164
(Colo. 2007). The Colorado Court of Appeals had affirmed the district court’s denial of the
petitioner’s initial Rule 35(c) application two weeks after the statute of limitations had expired. Id.
at 1166. The petitioner then filed a second Rule 35(c) application, which alleged ineffective
assistance of postconviction counsel. Id. at 1167. The district court denied the petitioner’s
application pursuant to the three-year statute of limitations. Id. The Colorado Court of Appeals and
Supreme Court both held that the district court should have analyzed whether the defendant could
establish justifiable excuse for filing the application late. Id. at 1167. According to the Supreme
Court, because the defendant could not assert his ineffective-assistance-of-postconviction-counsel
claims until his postconviction proceedings concluded, the defendant may have been able to
establish justifiable excuse for his late petition. Id. at 1170. Since Silva, the Colorado Court of
Appeals has specifically held that “ineffective assistance of [postconviction] counsel can constitute
justifiable excuse or excusable neglect” for a late Rule 35(c) application, because allegations of
ineffective assistance of postconviction counsel are not proper until after the conclusion of the initial
postconviction proceedings, which frequently take longer than the three-year statutory period.
People v. Valdez, 178 P.3d 1269, 1278 (Colo. App. 2007); see also People v. Chang, 179 P.3d 240,
244 (Colo. App. 2007) (“[A] finding of ineffective assistance would satisfy defendant’s obligation
to establish justifiable excuse or excusable neglect to avoid the time bar contained in § 16-5-402.”).
Additionally, in Espinoza v. Estep, the Tenth Circuit recognized that under Silva, an applicant “could
establish ‘justifiable excuse or excusable neglect’ for raising the issue after the statutory time period,
as the issue of postconviction ineffective assistance of counsel could not have been raised before the
court’s order in [the applicant’s] first postconviction motion.” 276 F. App’x 781, 784–85 (10th Cir.
Based on this precedent, the Court recommends finding that the statute of limitations would
not clearly bar a successive petition, because Petitioner could establish justifiable excuse for his late
petition. The Colorado Court of Appeals issued its decision on Petitioner’s postconviction appeal
on June 19, 2014—over a year after the three-year time period lapsed. ECF No. 20-10, at 9. The
court specifically declined to analyze Petitioner’s arguments for rehearing, because they raised
issues of ineffective assistance of postconviction counsel, which should not be decided until “after
the conclusion of postconviction relief appeals.” ECF No. 20-10, at 9 (quoting People v. Clouse,
74 P.3d 336, 341 (Colo. App. 2002)). Therefore, the Court of Appeals interpreted Petitioner’s
request for a rehearing as alleging ineffective assistance of postconviction counsel. Because
ineffective-assistance-of-postconviction-counsel claims cannot be decided until after postconviction
proceedings conclude, Petitioner’s request for a rehearing was not ripe until at least a year after the
statute of limitations expired. In accordance with Silva, this is likely sufficient to establish
justifiable excuse for a late petition requesting a rehearing to determine Petitioner’s unexhausted
Respondents argue in their Supplemental Brief that this Court should still determine whether
Petitioner can satisfy the Martinez exception, because Petitioner will be able to demonstrate
justifiable excuse for filing a late petition only if Petitioner can establish that his postconviction
counsel was ineffective. Resp’ts’ Suppl. Br. 4. If the Court finds that Petitioner satisfies Martinez,
Respondents agree that Petitioner’s claims are not clearly procedurally barred by the statute of
First, by asking this Court determine whether Petitioner can satisfy the entire Martinez
exception, Respondents’ request is overbroad. To establish cause for procedural default under
Martinez, a petitioner must show not only that his postconviction counsel was ineffective, but also
that “the underlying ineffective-assistance-of-trial-counsel claim is a substantial one . . . .”
Martinez, 132 S. Ct. at 1318. To establish justifiable excuse under Silva, the most a petitioner would
have to show is that his initial postconviction proceedings ended after the three-year period, and that
his postconviction counsel was ineffective. Silva, 156 P.3d at 1168–70. Therefore, ineffectiveness
of postconviction counsel is the only portion of the Martinez exception a Colorado court would
possibly consider in analyzing justifiable excuse for a late petition.
Even assuming the state court would consider postconviction counsel’s ineffectiveness as
part of its procedural “justifiable excuse” analysis, Petitioner can likely establish this. Indeed,
postconviction counsel admitted to the district court that she was ineffective:
Undersigned counsel missed a critical piece of evidence, namely that the actual
forensic evaluation of the gun seized from alternate suspect Derrick Moore,
eliminated that gun as being the gun used to shoot the victim in this matter. Because
counsel believed that the gun seized from Mr. Moore was the gun used to shoot the
victim, counsel made certain strategic choices in pursuing Mr. Estes' Crim. P. 35(c)
motion. As a result, counsel provided ineffective assistance and moves to withdraw.
Public Documents 438. Counsel then went on to explain the issues she would have raised if she had
not missed this evidence. Id. at 440–42. In light of counsel’s admission, it would be difficult for
the state court to find that counsel provided effective assistance. Because Petitioner could not assert
this argument until after the three-year statute of limitations expired, Section 16-5-402 does not
clearly bar Petitioner from raising his unexhausted ineffective-assistance-of-trial-counsel claims in
a successive Rule 35(c) petition. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989) (stating
that a claim is procedurally defaulted only “if it is clear that [the] claims are now procedurally barred
under [state] law”).
Rule Against Successive Petitions
Respondents next assert that Rule 35's prohibition of successive petitions asserting claims
that a petitioner could have previously brought bars Petitioner’s remaining claim in state court.4
Just as with Respondents’ argument on the statute of limitations, Respondents agree that
Colo R. Crim. P. 35(c)(3)(VII) does not bar the present claims if Petitioner’s Martinez argument
is meritorious. Resp’ts’ Suppl. Br. 4 (“if – and only if – this Court finds Applicant’s Martinez
argument meritorious, it should also conclude that, for the same reason, his underlying trialcounsel claims are not ‘clearly’ procedurally barred in state court, because there is some
arguable merit to the notion that he is entitled to a reinstated postconviction hearing.”).
Answer 9. Colo. R. Crim. P. 35(c)(3)(VII) provides:
The Court shall deny any claim that could have been presented in an appeal
previously brought or postconviction proceeding previously brought except the
following: (a) Any claim based on events that occurred after initiation of the
defendant's prior appeal or postconviction proceeding; (b) Any claim based on
evidence that could not have been discovered previously through the exercise of due
diligence; (c) Any claim based on a new rule of constitutional law that was
previously unavailable, if that rule should be applied retroactively to cases on
collateral review; (d) Any claim that the sentencing court lacked subject matter
jurisdiction; (e) Any claim where an objective factor, external to the defense and not
attributable to the defendant, made raising the claim impracticable.
Because Petitioner could have asserted his ineffective-assistance-of-trial-counsel claims in
his first postconviction petition, Rule 35(c)(3)(VII) would bar Petitioner’s successive petition unless
his claim falls under one of the exceptions. There is little Colorado case law analyzing the five
exceptions in the ineffective-assistance context. However, based on the Colorado case law that does
exist and the Colorado Court of Appeals’ holding in Petitioner’s first postconviction appeal, the
Court recommends holding that two of the exceptions may apply. The Court will analyze the two
potentially applicable exceptions in turn.
First, Rule 35(c)(3)(VII) would not clearly bar Petitioner’s subsequent motion, because
Colorado courts could hold that Petitioner’s successive Rule 35 motion is based on events that
occurred after initiation of Petitioner’s prior postconviction proceeding. Petitioner’s reason for not
asserting his present ineffective-assistance claims is that his postconviction counsel failed to do
so—an incident that occurred after the initiation of his first postconviction proceeding. Therefore,
it is not clear that Petitioner’s subsequent Rule 35(c) petition would be based entirely on events
happening before the initiation of his first petition.
Respondents argue Rule 35(c)(3)(VII)(a) excepts only “claims” based on events happening
after initiation of the initial postconviction proceedings, and because the underlying claims are for
ineffective assistance of trial counsel, the exception does not apply. Resp’ts’ Suppl. Br. 3.
However, at least one Colorado court analyzing this issue in similar circumstances has not agreed
with this interpretation. In People v. Gutierrez-Ruiz, the petitioner filed a Rule 35(c) petition in
Colorado state court alleging ineffective assistance of trial counsel. 383 P.3d 44, 45 (Colo. App.
2014), vacated on other grounds, No. 14SC959, 2015 WL 5214591 (Colo. 2015). After the trial
court denied his petition, he filed a claim in federal court under 28 U.S.C. § 2254, which the federal
district court denied as barred by the one-year limitations period. Id. The petitioner then filed a
successive Rule 35(c) petition alleging ineffective assistance of direct appellate counsel for failing
to advise him of the one-year limitations period. Id. at 46. The Court held that Rule 35(c)(3)(VII)(a)
did not procedurally bar the petitioner’s claim, because “dismissal of the 28 U.S.C. section 2254
petition did not occur until after the first postconviction motion had been initiated and denied by the
trial court.”5 Id. at 47 n.2. Therefore, notwithstanding that the alleged ineffective assistance giving
rise to the claim happened before the defendant’s first Rule 35(c) motion, the exception applied
because an event relevant to the claim (the denial of the habeas petition) happened after initiation
of the first postconviction motion. Similarly, although the underlying ineffective assistance of trial
counsel happened before Petitioner’s initial application, an event relevant to the claim
(postconviction counsel’s ineffective assistance) happened after initiation of the claim.
Moreover, the Colorado Court of Appeals’ holding on Petitioner’s request for a rehearing
assumes that Petitioner would be able to file a successive Rule 35(c) petition. The court held that
Although the court applied Rule 35(c)(3)(VII) to affirm the district court’s dismissal of
the petitioner’s ineffective-assistance-of-trial-counsel claims, the petitioner did not claim that his
initial postconviction counsel was ineffective. Gutierrez-Ruiz, 383 P.3d at 46–47. Therefore,
there was no event relevant to his trial-counsel claims that occurred after the initiation of his first
Petitioner’s request for a rehearing would not be proper until the conclusion of his initial
postconviction proceeding, because it was based on ongoing events—the assistance of
postconviction counsel. ECF No. 20-10. If Rule 35(c)(3)(VII) prohibited Petitioner from requesting
a rehearing after the conclusion of his initial postconviction proceeding, Petitioner would be entirely
barred from asserting ineffective assistance of postconviction counsel in Colorado state court.
Colorado courts have not taken this approach. See Valdez, 178 P.3d at 1279–80 (analyzing whether
postconviction counsel was ineffective and stating that the remedy for ineffective assistance of
postconviction counsel is a new hearing on the merits); People v. Russell, 36 P.3d 92, 94–95 (Colo.
App. 2001) (analyzing whether postconviction counsel was ineffective on appeal from the
petitioner’s second Rule 35(c) motion). Therefore, the Colorado Court of Appeals’ holding, which
contemplates the availability of a successive postconviction proceeding requesting a rehearing, at
least makes it unclear whether Rule 35(c)(3)(VII) would bar Petitioner’s successive petition.
In addition to the exception listed in Rule 35(c)(3)(VII)(a), this District has held in similar
circumstances that the exception in Rule 35(c)(3)(VII)(e) for claims based on factors external to the
defense may apply. See Turman v. Miller, No. 12-cv-01235-BNB, 2012 WL 3962819, at *3 (D.
Colo. Sept. 11, 2012). In Turman, the petitioner filed his habeas application after a Colorado district
court had previously denied his Rule 35(c) motion. Id. at *1. The petitioner’s sole claim in his
habeas application was for denial of due process, a claim he failed to assert on direct appeal or in
his Rule 35(c) motion. Id. at *2. The petitioner argued that his appellate counsel was ineffective
for failing to raise the claim. Id. at *3. The court held that the claim was not subject to anticipatory
procedural default, because the petitioner may have been able to raise the claim in a successive
postconviction proceeding. Id. According to the court, “it [was] not clear whether counsel’s failure
to raise the claim might fall within the exception specified in Rule 35(c)(3)(VII)(e)” for claims based
on an objective factor external to the defense and not attributable to the defendant. Id. Similarly,
it is not clear whether postconviction counsel’s failure to raise Petitioner’s first four ineffectiveassistance-of-trial-counsel claims might cause Petitioner’s claims to fall within Rule
In Petitioner’s Supplemental Brief, he argues that Colorado courts would not consider the
present claims, because he could have raised them in a successive petition he filed shortly after the
district court ruled on his first petition, but before he appealed the district court’s decision. Pet’r’s
Suppl. Br. 5. Petitioner asserts he did not raise the claims because of his mistaken belief that he
could raise them on appeal of his first petition. Id. First, because Petitioner was represented by
counsel at the time of his successive petition, it is not clear that the district court considered the
petition proper. See People v. Arko, 159 P.3d 713, 718 (Colo. App. 2006) (finding that the trial court
properly advised the defendant that he could not file pro se motions while he was represented by
counsel), rev’d on other grounds, 183 P.3d 555 (Colo. 2008). Moreover, when to properly raise a
claim is the exact type of error that counsel is assigned to prevent. Therefore, because Petitioner’s
failure to raise the claim in his successive petition was due to either the ineffectiveness of his
postconviction counsel or his counsel’s failure to assist him, the Court finds that Petitioner could
potentially establish an exception to Rule 35(c)(3)(VII). This is especially true given that the
appellate decision denying Petitioner the right to assert his claims on direct appeal was not decided
until after he initiated his successive petition. See Gutierrez-Ruiz, 383 P.3d at 45 (holding that a
petitioner’s claim met the exception under Rule 35(c)(3)(VII)(a), because the decision denying him
the right to assert his claims was not decided until after the petitioner filed his initial petition).
Additionally, Petitioner argues that requiring him to exhaust his claims in state court would
be futile, because his first successive petition, which he filed on May 30, 2012, Public Documents
464–79, has not been addressed by the Colorado courts. Pet’r’s Suppl. Br. 3–4. Petitioner is correct
that an exception to the exhaustion requirement exists when “the corrective process is so clearly
deficient as to render futile any effort to obtain relief.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981).
However, the Court does not find that Colorado’s process for postconviction review is so clearly
deficient as to render a successive petition futile. First, Petitioner acknowledges that the district
court did not have jurisdiction to rule on the successive petition, because the appeal on his initial
petition was pending. Public Documents 549–50. Moreover, as stated above, Petitioner was still
represented by counsel at the time of filing. Therefore, it is not clear that Colorado courts ever
considered Petitioner’s successive petition proper. Although the record does not contain a specific
decision declining to hear Petitioner’s successive motion, the Court is not willing to conclude that
Colorado’s postconviction proceedings are entirely deficient, merely because a court failed to rule
on a petition over which it lacked jurisdiction at the time of filing. Because Petitioner’s direct
appeal of his initial Rule 35(c) petition is no longer pending, the Court does not believe that a newlyfiled Rule 35(c) petition would be subject to inordinate delay.
In sum, it is not clear to the Court that Colorado procedural rules would bar Petitioner from
asserting his unexhausted claims for ineffective assistance of trial counsel in state court. Although
it is certainly possible that Colorado courts will not apply the exceptions listed in Rule 35(c)(3)(VII),
anticipatory procedural default is proper only “if it is clear that [the] claims are now procedurally
barred under [state] law.” Castille, 489 U.S. at 351 (emphasis added); see also Hawkins v.
Champion, 982 F.2d 528 (Table), 1992 WL 372598, at *3 (10th Cir. Dec. 18, 1992) (“[A] strong
argument could be made that [the petitioners’] claims are in fact exhausted. But we do not choose
to predict what the state courts will do in this case. . . . Perhaps the state courts may apply some
exception to allow review.”).
Petitioner’s last ineffective-assistance claim alleges that his pretrial counsel was ineffective,
because she acted under a conflict of interest. Am. Appl. 17. According to Petitioner, his pretrial
counsel could not provide effective representation, because the Denver Public Defender’s office
concurrently represented Petitioner and an alternative suspect in Petitioner’s case in an unrelated
matter. Id. As stated above, it is undisputed that Petitioner did not exhaust this claim, as he did not
present it to the Colorado Court of Appeals. However, unlike Petitioner’s first four claims,
Petitioner made this argument in his initial postconviction motion, and the district court denied
relief. Public Documents 314–17, 458. Therefore, a different Colorado procedural rule would apply
to default this claim. Colo. R. Crim. P. 35(c)(3)(VI) requires a district court to “deny any claim that
was raised and resolved in a prior appeal or postconviction proceeding . . . .” The rule excepts only
claims based on evidence that could not have been discovered previously and those based on a new
rule of constitutional law. Id. Because the district court resolved the conflict-of-interest claim, and
neither of the exceptions apply, Rule 35(c)(3)(VI) bars Colorado courts from considering this claim
in a subsequent postconviction petition.6 Therefore, unlike Petitioner’s first four claims, Petitioner’s
final claim is likely procedurally defaulted, and thus, technically exhausted. See Woodford v. Ngo,
The exceptions under Rule 35(c)(3)(VII) that the Court finds could apply to
Petitioner’s first four claims are not included in Rule 35(c)(3)(VI). Moreover, even they were,
Petitioner does not argue that his postconviction counsel was ineffective for how she raised the
claim or that his postconviction-appeals counsel was ineffective for not appealing the claim.
548 U.S. 81, 93 (2006) (“[I]f state-court remedies are no longer available . . . those remedies are
technically exhausted . . . .”).
Generally, a petitioner asserting a procedurally-defaulted claim would have to show “cause
and prejudice” for the procedural default. See, e.g., Francis v. Henderson, 425 U.S. 536, 543
(1976). However, in cases such as this, where a petitioner also asserts claims that are not
procedurally defaulted, courts have two options. See Snyder v. Ortiz, 288 F. App’x 505, 508 (10th
Cir. 2008). First, if the district court is convinced the application is patently without merit, the court
can deny the entire petition. Snyder, 288 F. App’x at 508; 28 U.S.C. § 2254(b)(2). Alternatively,
if the application may conceivably have merit, the court should require the petitioner to exhaust his
claims in state court before bringing any of the claims in federal court, including those that are
procedurally defaulted. Id.; Rose, 455 U.S. at 522; Satar v. Everett, No. 11-cv-02262-LTB-BNB,
2011 WL 5119041, at *7 (D. Colo. Oct. 28, 2011) (“Even if Respondents are correct that Mr. Satar
has technically satisfied the exhaustion requirement for claims one and two through his procedural
default, the Court cannot dismiss those claims as procedurally barred, which would operate as a
decision on the merits, and also dismiss claim three for failure to exhaust state remedies.”).
Additionally, if the court requires exhaustion, but is concerned about the petitioner’s ability to meet
the Anti-Effective Death Penalty and Anti-terrorism Act ‘s one-year statute of limitations, the court
has discretion to issue a stay of the petition for the duration of the petitioner’s trip to state court.
Snyder, 288 F. App’x at 508; Rhines, 544 U.S. at 277 (stating that a court can stay a habeas petition
where the petitioner may be unable to satisfy the one-year statute of limitations upon returning to
Here, the Court finds it is not appropriate to consider the merits of the Application, because
it is not patently obvious that Petitioner’s claims are meritless. According to Petitioner, trial counsel
failed to produce a potentially exculpatory witness, failed to present evidence that the prosecution’s
eyewitnesses identified other suspects, and failed to object or seek a limiting instruction to numerous
instances of prior bad acts evidence, among other errors. Am. Appl. 11–17. Although it is possible
that trial counsel failed to take some of these actions for strategic reasons, it is also possible that
counsel mistakenly failed to take these actions. Therefore, the Court does not find that the claims
are patently without merit. This is especially true given that Petitioner’s postconviction counsel
acknowledged she would have asserted some of these claims had she not missed a piece of evidence.
Public Documents 438. Although Colorado courts may ultimately reject Petitioner’s claims,
requiring Petitioner to exhaust his remedies serves the principles of federalism and comity in this
case. See Rose, 544 U.S. at 519–19 (noting that exhaustion serves the interests of comity and
Instead of dismissing Petitioner’s Application without prejudice, the Court recommends
staying the case pending Petitioner’s exhaustion of his first four claims. Respondents acknowledge
that as of the time Petitioner filed his application on January 19, 2016, only twenty-five days had
run against the one-year limitations period. Resp’ts’ PreAnswer Resp. 7, ECF No. 20. However,
“the filing of a petition for habeas corpus in federal court does not toll the statute of limitations.”
Rhines, 544 U.S. at 274–75. Therefore, if the Court were to dismiss Petitioner’s claims without
prejudice and require Petitioner to re-file after exhausting his state remedies, the one-year statue of
limitations would bar Petitioner from seeking future habeas review. This is the precise scenario that
the Supreme Court envisioned in Rhines. Moreover, Petitioner failed to exhaust his claims because
he believed they were procedurally defaulted, which was reasonable in light of the complexity of
the Court’s discussion in Section I. Therefore, the Court recommends issuing a stay in the present
case to allow Petitioner the opportunity to assert his first four claims in state court, and then
potentially return to federal court.
However, the Court finds that a reasonable time limit on the stay is appropriate. As the
Supreme Court recognized in Rhines, district courts should not issue indefinite stays. 544 U.S. at
278. Instead, courts “should place reasonable time limits on a petitioner’s trip to state court and
back.” Id. Therefore, consistent with Rhines, the Court recommends conditioning the stay on
Petitioner’s pursuit of state court remedies within thirty days, and on Petitioner’s return to federal
court within thirty days after state court exhaustion is complete. Id.; Zarvela v. Artuz, 254 F.3d 374,
381 (2d Cir. 2001).
In sum, the Court finds that Petitioner’s first four ineffective-assistance-of-counsel claims
are not procedurally defaulted, because it is not clear that Colorado law would bar Petitioner from
asserting them in a subsequent postconviction petition. Additionally, the Court finds it proper to
issue a stay to allow Petitioner to exhaust his state court remedies, and then potentially return to
federal court without running afoul of the one-year statute of limitations. Therefore, the Court
recommends that the Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [filed
February 8, 2016; ECF No. 9] be denied, and that this case be stayed pending Petitioner’s
exhaustion of state court remedies.
Petitioner’s Request for Oral Argument and for the Court to Appoint Counsel [filed
December 30, 2016; ECF No. 70] is also before the Court. In his Request, Petitioner contends that
oral argument may be necessary for this Court’s disposition of its report and recommendation.
Because this Court finds that oral argument is not necessary, Petitioner’s Request for Oral Argument
is denied without prejudice.
Entered and dated at Denver, Colorado, this 20th day of January, 2017.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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