Estes v. Werlich et al

Filing 83

ORDER GRANTING 75 Recommendations of the United States Magistrate Judge and OVERRULING 78 Objections. The 9 Petitioner's Application for Writ of Habeas Corpus is DENIED WITHOUT PREJUDICE and all proceedings are STAYED until Petitioner has exhausted his state court remedies, provided that Petitioner presents his unexhausted claims to the state court within thirty days from the date of this Order. ORDERED by Judge William J. Martinez on 03/06/2017. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-0141-WJM-MEH
JONATHAN N. ESTES,
Petitioner,
v.
T. G. WERLICH,
M. D. CARVAJAL,
RICK RAEMISCH, and
CYNTHIA COFFMAN,
Respondents.

ORDER ADOPTING THE JANUARY 20, 2017 RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE

This is an action for Writ of Habeas Corpus by Jonathan N. Estes (“Petitioner”)
pursuant to 28 U.S.C. § 2254. This matter is before the Court on the January 20, 2017
Recommendation by United States Magistrate Judge Michael E. Hegarty
(“Recommendation,” ECF No. 75) that Petitioner’s Application f or Writ of Habeas
Corpus (“Application,” ECF No. 9) be denied and stayed pending Petitioner’s
exhaustion of state court remedies. Rick Raemisch and Cynthia Coffman (collectively,
“Respondents”) filed an objection to the Recommendation (ECF No. 76), but later
withdrew that objection (ECF No. 81). Petitioner also filed an objection to the
Recommendation. (“Objection,” ECF No. 78.) For the reasons set f orth below,
Petitioner’s Objection is overruled, the Magistrate Judge’s Recommendation is adopted,
and Petitioner’s Application is denied.

I. BACKGROUND
The facts relevant to a resolution of Petitioner’s Application are detailed in the
Recommendation. (See ECF No. 75 at 2–5.) Briefly, Petitioner, proceeding pro se,
initiated this action by filing an Application on January 19, 2016, attacking the validity of
his underlying state court conviction. (ECF No. 1 (citing 28 U.S.C. § 2254).)
On February 10, 2006, a jury in the Denver District Court convicted Petitioner of
attempted first degree murder and attempted aggravated robbery. (State Court
Docket.1) After Petitioner’s direct appeals concluded on May 17, 2010, Petitioner filed a
timely petition, pro se, for collateral review in state court under Colo. R. Crim. P. 35(c).
(ECF No. 39, Public Records at 288.) Around the same time, Petitioner also filed a
Rule 35(b) petition. (See State Court Docket.) The district court appointed counsel for
Petitioner, who amended his Rule 35(c) petition and alleged ineffective assistance of
trial counsel based on trial counsel’s failure to introduce relevant evidence, conflict of
interest, and failure to raise marital privilege. (Id. at 311–12.) After the district court
held an evidentiary hearing, but while the Rule 35(c) petition was still pending,
Petitioner filed a letter and supplemental pleading, which requested a supplemental
evidentiary hearing on additional claims for ineffective assistance of trial counsel. (Id.
at 373–91.) Petitioner asserted that he was entitled to a rehearing because his postconviction counsel was ineffective for failing to raise his newly-asserted claims. (Id.)

1

The Court takes judicial notice of the docket in the state court action People of the
State of Colo. v. Jonathan Nathaniel Estes, No. 2005CR674 (Denver Cnty., Colo. Dist. Ct. Feb.
18, 2005) (“State Court Docket”). See Mid-S Iron Workers Welfare Plan v. Harmon, 645 F.
App’x 661, 665 (10th Cir. 2016) (“Courts may take judicial notice of proceedings in other courts
. . . if those proceedings have a direct relation to the matters at issue”).

2

On April 28, 2012, the district court denied Petitioner’s Rule 35(c) petition and his
request for a rehearing without analyzing the merits of Petitioner’s ineffective assistance
of post-conviction counsel claim. (Id. at 455–61.) Petitioner appealed to the Colorado
Court of Appeals. (State Court Docket.)
On June 6, 2012, while that appeal was pending, Petitioner filed a successive
Rule 35(c) petition with an accompanying supplemental letter. (State Court Docket.)
On June 29, 2012, Senior Judge Frank Plaut issued a minute order noting that due to
the appeal, the court lost jurisdiction to hear Petitioner’s Rule 35(b) petition and any
other pending motions (which may or may not have included consideration of his
successive Rule 35(c) petition). (State Court Docket. 2)
On June 19, 2014, the Colorado Court of Appeals affirmed the district court’s
decision on the original Rule 35(c) petition, finding no error when the district court
denied that petition, as well as when it denied his request for a rehearing because his
request raised ineffective assistance of post-conviction counsel issues, which can only
be determined after the conclusion of initial post-conviction relief proceedings. (ECF
No. 20-10 at 10–11 (citing People v. Clouse, 74 P.3d 336, 341 (Colo. App. 2002)
(noting that, in previous cases, ineffective assistance of post-conviction counsel claims
were “either initiated or to be initiated after the conclusion of post-conviction relief

2

On September 15, 2015, Petitioner sent a letter to Judge Carol Glowenski stating, “[a]
notice of appeal had already been filed, pertaining to the 35(c) claims raised, and therefore, the
35(c) court did not have jurisdiction to rule upon the successive 35(c) petition concerning 35(c)
counsels [sic] performance during post-conviction proceedings.” (ECF No. 39, Public Records
at 549.) However, after the appeal was completed, Judge Glowenski issued an order denying
Petitioner’s Rule 35(b) petition, but notably the order did not address his successive Rule 35(c)
petition. (ECF No. 39, Public Records at 523–25.)

3

appeals” and recognizing “the impossibility of asserting ineffective post-conviction
counsel claims until the conclusion of post-conviction proceedings”)).)
The Colorado Supreme Court denied certiorari on February 9, 2015. (ECF No.
20-12 at 1.) Petitioner then filed the present action, asserting 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 another suspect. (ECF No. 9 at 12–17.) In his
Application, Petitioner notes that his present claims for ineffective assistance of trial
counsel “were not presented to the states [sic] highest court due to errors caused by
initial-collateral-review counsel.” (Id. at 3.)
On March 31, 2016, Respondents filed an Answer asserting that Petitioner has
not exhausted his claims in state court, and further, his claims are now procedurally
defaulted. (ECF No. 47 at 8–9.) Specifically, Respondents contend that Petitioner’s
claims are procedurally barred by two provisions of Colorado law: (1) Colo. Rev. Stat.
§ 16-5-402, which establishes a three-year statute of limitations on felony postconviction collateral attacks, and (2) Colo. R. Crim. P. 35(c)(3)(VII), which prohibits
successive petitions asserting claims that could have previously been brought in a prior
petition. (Id. at 9.)
On June 20, 2016, Petitioner replied agreeing that his claims have not been
exhausted and are now procedurally defaulted; however, Petitioner contends that he
4

can establish “cause and prejudice” to excuse the default. (ECF No. 49.) Specifically,
Petitioner claims that the actual innocence exception entitles him to review on the
merits and, separately, that he can establish cause under Martinez v. Ryan, 566 U.S. 1,
17 (2012), because his ineffective assistance claims are substantial and his postconviction counsel was ineffective. (Id. at 2–14.) Judge Hegarty then requested
supplemental briefing on whether Colorado law would procedurally bar Petitioner from
asserting his claims in a subsequent post-conviction proceeding in state court.
II. LEGAL STANDARDS
A.

Standard of Review
When a magistrate judge issues a recommendation on a prisoner petition,

Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” Fed. R. Civ. P. 72(b)(3). An objection to a recommendation is properly
made if it is both timely and specific. United States v. One Parcel of Real Property
Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). In conducting its
review, “[t]he district court judge may accept, reject, or modify the recommendation;
receive further evidence; or return the matter to the magistrate judge with instructions.”
Fed. R. Civ. P. 72(b)(3). Here, Petitioner filed a timely objection to Judge Hegarty’s
Recommendation. (See ECF No. 78.) Therefore, this Court reviews the issues before
it de novo.
Further, in considering Judge Hegarty’s Recommendation, the Court is also
mindful of Petitioner’s pro se status, and accordingly, reads his pleadings and filings

5

liberally. Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Trackwell v. United States
Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). T he Court, however, cannot act as
advocate for Petitioner, who must still comply with the fundamental requirements of the
Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991); see also Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1188 (10th Cir.
2003).
B.

28 U.S.C. § 2254
This Court may review an application for writ of habeas corpus “only on the

ground that [an applicant] is in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). “Federal habeas courts rev iewing the
constitutionality of a state prisoner’s conviction and sentence are guided by rules
designed to ensure that state court judgements are accorded the finality and respect
necessary to preserve the integrity of legal proceedings within our system of
federalism.” Martinez, 566 U.S. at 9. These rules include the doctrines of exhaustion
and procedural default. See Rose v. Lundy, 455 U.S. 509, 518 (1982); Coleman v.
Thompson, 501 U.S. 722, 747–48 (1991).
An application cannot be granted unless it appears that the applicant has f ully
exhausted his available state remedies. 28 U.S.C. § 2254(b)(1). “The exhaustion
doctrine is principally designed to protect the state courts’ role in the enf orcement of
federal law and prevent disruption of state judicial proceedings.” Rose, 455 U.S. at
518; see also Anderson v. Sirmons, 476 F.3d 1131, 1137 (10th Cir. 2007) (there is a
“strong presumption in favor of requiring exhaustion of state remedies,” thus federal

6

habeas courts should require exhaustion if available state remedies might exist).
Generally, state remedies are not exhausted until the highest state court has had an
opportunity to consider the merits of the claim. See Pitchess v. Davis, 421 U.S. 482,
487–88 (1975). However, in Colorado, “when a claim has been presented to the Court
of Appeals or Supreme Court, and relief has been denied, the litigant shall be deemed
to have exhausted all available state remedies.” Colo. App. R. 51.1(a) (emphasis
added).
If an applicant fails to exhaust available state remedies, a federal court should
dismiss the application without prejudice so that the state remedies may be pursued.
Demarest v. Price, 130 F.3d 922, 939 (10th Cir. 1997). The federal court, however,
should first consider whether the applicant would be able to raise the unexhausted
claims in the state court. Id. If the state court to which the applicant would be required
to present his claims in order to meet the exhaustion requirement would now find the
claims procedurally barred, the applicant’s claims are procedurally defaulted for
purposes of federal habeas relief. See Coleman, 501 U.S. at 735 n.1. Thus, under the
doctrine of procedural default, a federal court will not review the merits of claims that a
state court declined to hear (or would decline to hear) because the prisoner failed to
abide by a state procedural rule, unless the petitioner can show “cause” for the default
and actual “prejudice” as a result of the alleged violation of federal law. See id. at
747–50. The determination of cause and prejudice are matters of federal law. See
Demarest, 130 F.3d at 941.

7

III. ANALYSIS
Judge Hegarty recommended that Petitioner’s Application be denied and stayed
pending Petitioner’s exhaustion of state court remedies. (ECF No. 75 at 21–22.) Judge
Hegarty made several findings to reach that recommendation.
First, Judge Hegarty found that the ineffective assistance of trial counsel claims
now presented before this Court were not presented to the Colorado Court of Appeals,
thus concluding that Petitioner had not exhausted his claims. (Id. at 6–7.)
As for procedural default, Judge Hegarty found that “Colorado law would not
clearly bar Petitioner from returning to state court to present his first four ineffective
assistance claims.” (Id. at 7.) Specifically, Judge Hegarty noted that there were
applicable exceptions to both the statutory time bar, Colo. Rev. Stat. § 16-5-402, and
Rule 35(c)’s prohibition on successive petitions. (Id. at 8.)3 However, Judge Hegarty
found Petitioner’s fifth claim, which alleges conflict of interest of pre-trial counsel, “likely
procedurally barred, and thus, technically exhausted.” (Id. at 7.)

3

Judge Hegarty found that the three-year statute of limitations would not clearly bar a
successive petition because Petitioner could likely establish “justifiable excuse” for his late
petition. (ECF No. 75 at 10 (citing Silva v. People, 156 P.3d 1164, 1167 (Colo. 2007) (holding
that the district court should have analyzed whether the defendant could establish justifiable
excuse for filing the successive Rule 35(c) petition late when the Colorado Court of Appeals
affirmed defendant’s initial Rule 35(c) petition after the statute of limitations had expired) and
People v. Valdez, 178 P.3d 1239, 1278 (Colo. App. 2007) (holding that “ineffective assistance
of [post-conviction] counsel can constitute justifiable excuse or excusable neglect” for a late
35(c) petition because allegations of ineffective assistance of post-conviction counsel are not
proper until after the conclusion of the initial post-conviction proceedings, which frequently take
longer than the three-year statutory period)).) As for Rule 35(c)’s rule against successive
petitions, Judge Hegarty found that “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,” thus the first narrow exception may apply. To support his reasoning,
Judge Hegarty noted that “Petitioner’s reason for not asserting his present ineffectiveassistance claims is that his post-conviction counsel failed to do so—an incident that occurred
after the initiation of his first post-conviction proceeding.” (ECF No. 75 at 13.)

8

Judge Hegarty concluded that Petitioner’s Application is a “mixed petition,”
meaning that it contains a mix of unexhausted and exhausted claims. (Id. at 7.) Thus,
Judge Hegarty rightly concluded that the “Court may either dismiss the claim without
prejudice or stay the case until Petitioner exhausts his first four claims.” (Id. at 7 (citing
Rhines v. Weber, 544 U.S. 269, 279 (2005)).) Because the one-year statute of
limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) is not tolled by the filing of a petition for habeas corpus in federal court,
Judge Hegarty recommended “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,” while 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.” (Id. at 20–21 (citing Rhines, 544 U.S. at 274–78 (courts “should
place reasonable time limits on a petitioner’s trip to state court and back”)).)
Petitioner’s Objection fails to address the majority of the findings or conclusions
set forth in the Recommendation. Instead, Petitioner first objects to certain statements
made by Judge Hegarty that were immaterial to his finding that Petitioner’s first four
claims are not clearly procedurally defaulted. (ECF No. 78 at 1–3.) Petitioner takes
issue with Judge Hegarty’s statement that “it is not clear that the district court
considered the [successive Rule 35(c)] petition [, filed pro se,] proper” “because
Petitioner was represented by counsel at the time” (ECF No. 75 at 16; ECF No. 78 at
1–2); as well as the statement that “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” (ECF No. 75 at 17 (citing ECF No. 39, Public Records at 549–50);
9

ECF No. 78 at 1–2). Petitioner also generally “objects to the Magistrate Judge’s
Recommendation that the applicant return to state court to f ile a successive rule 35(c)”
petition, asserting that Judge Hegarty “fails to acknowledge that the Applicant has
already filed a successive Rule 35(c) motion on May 30, 2012.” (ECF No. 78 at 4.) 4
First, the Court disagrees with the above assertion; Judge Hegarty fully
acknowledged and thoroughly contemplated whether Petitioner has a successive Rule
35(c) petition pending. (See ECF No. 75 at 16–17.) The Court agrees with Judge
Hegarty that it is unclear as to whether the successive petition remains pending, or if it
was never properly filed and accepted due to the reasons noted by Judge Hegarty.
(See State Court Docket.) Moreover, a determination as to whether or not a
successive petition remains pending is immaterial to Judge Hegarty’s recommendation
that Petitioner exhaust his state court remedies. Petitioner could effectively exhaust his
state court remedies by either filing a new successive Rule 35(c) petition or via revival
of the pending one, if in fact it remains pending.
Petitioner also objects to Judge Hegarty’s “failure to make a finding as to
whether the applicant’s successive 35(c) motion has been subject to an inordinate
delay in state court proceedings.” (ECF No. 78 at 3.) The Court finds that Judge
Hegarty applied the correct legal authority in reviewing Petitioner’s Application and
briefing. Inordinate delay analysis would not have been proper under the
circumstances, given that, as stated above, it is unclear to the Court whether
Petitioner’s Rule 35(c) successive petition remains pending. (State Court Docket.)

4

The underlying state court docket reports that the successive Rule 35(c) petition was
filed on June 5, 2012. (State Court Docket.)

10

Further, such analysis would have no impact on Judge Hegarty’s finding that
Petitioner’s claims are not clearly procedurally defaulted.
Accordingly, Petitioner has failed to provide any grounds upon which the
Objection can be sustained, and the Recom mendation is adopted in full.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Petitioner’s Objection (ECF No. 78) to the Magistrate Judge’s Recommendation
is OVERRULED;

2.

The Magistrate Judge’s Recommendation (ECF No. 75) is ADOPTED in its
entirety as follows:
a.

Petitioner’s Application for Writ of Habeas Corpus (ECF No. 9) is DENIED
without prejudice; and

b.

All proceedings are STAYED until Petitioner has exhausted his state court
remedies, provided that Petitioner presents his unexhausted claims to the
state court within thirty days from the date of this Order;

c.

Petitioner is DIRECTED to return to this Court to request that the stay be
lifted within thirty days of exhausting his state court remedies.

Dated this 6th day of March, 2017.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge
11