Gregg v. Raemisch et al
Filing
45
ORDER Denying Motion to Rule on Claim. Respondents' Motion to Vacate Evidentiary Hearing and Rule on Claim (Doc. # 34 ) is DENIED in part as to its request that the Court rule on the claim. Counsel shall contact chambers within fourteen (14) days to re-schedule the evidentiary hearing date. By Judge Christine M. Arguello on 01/17/2018. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 16-cv-00173-CMA-MEH
WILLIAM ALLEN GREGG,
Applicant,
v.
RICK RAEMISCH, Executive Director of CDOC, and
ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER DENYING MOTION TO RULE ON CLAIM
The matter is before the Court on Respondents’ Motion to Vacate Evidentiary
Hearing and Rule on Claim, filed on May 30, 2017. (Doc. # 34.) Applicant William Allen
Gregg, through counsel, filed a Response to the Motion (Doc. # 40) and the
Respondents filed a Reply (Doc. # 41). On August 14, 2017, the Court granted the
Motion in part, as to the request to vacate the evidentiary hearing. (Doc. # 44). As to
Respondents’ request to rule on the claim, the Court denies the Motion for the reasons
discussed below.
I.
BACKGROUND
On December 19, 2016, the Court issued an order dismissing all of Mr. Gregg’s
§ 2254 habeas claims, except for Claim 4(a), in which he alleged ineffective assistance
by his trial counsel for failure to investigate his alibi. (Doc. # 23.) In their initial Answer
to Mr. Gregg’s Application, Respondents had argued that Claim 4(a) was procedurally
defaulted. (Doc. # 19 at 22–23.) The Court determined that even if the claim was
procedurally defaulted, the default may be excused based on Martinez v. Ryan, 566
U.S. 1 (2012). (Doc. # 23 at 34–35.) In the Court’s view, the state court record was
insufficient to determine if Mr. Gregg’s ineffective assistance of trial claim was
“substantial” under Martinez and, therefore, it determined that an evidentiary hearing
was necessary. (Id. at 43–45.) The Federal Public Defender was appointed to
represent Mr. Gregg for the evidentiary hearing (id. at 46), which was scheduled for
September 19, 2017 (Doc. # 26). On May 30, 2017, Respondents filed the Motion to
Vacate Evidentiary Hearing and Rule on Claim now before the Court. (Doc. # 34.)
II.
ANALYSIS OF RESPONDENTS’ MOTION TO VACATE EVIDENTIARY
HEARING AND RULE ON CLAIM
Respondents now argue, contrary to the assertion they made in their Answer
(Doc. # 19), that the state courts adjudicated Mr. Gregg’s Claim 4(a) on the merits.
(Doc. # 34 at 5.) If the claim was denied on the merits, this Court must apply the
deferential standards of § 2254(d). Thus, the question for the Court is whether the
Colorado Court of Appeals (“CCA”) denied Mr. Gregg’s ineffective assistance of counsel
(“IAC”) claim on the merits or on an independent and adequate state procedural ground.
A.
THE CCA OPINION
The CCA’s opinion regarding Claim 4(a) stated:
B. Inadequate Investigation of Alibi Defense
Defendant also contends that his counsel was ineffective
because counsel did not investigate and present an alibi
defense to his first and third robberies.
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In his Crim. P. 35(c) motion for post-conviction relief in the
consolidated robbery cases, defendant only challenged
counsel’s failure to investigate his alibi with respect to the
first robbery. He argued that (1) he “was someplace else
when the first bank robbery occurred and with today’s
availability of photographic evidence, had counsel conducted
reasonable investigations, i.e., investigations [defendant]
asked counsel to conduct; counsel would have been able to
discover and present alibi evidence”; and (2) “had counsel
cast doubt on the first bank robbery, there is also a
reasonable probability that doubt would have been cast on
the third robbery as well.” Defendant did not identify any
specifics regarding where he was on the day of the first
robbery or what evidence counsel would have discovered
had he investigated this defense.
The district court found that “[d]efendant has failed to offer
any specific description of the facts which support this alibi
defense, no[r] has he provided any exhibits or affidavits that
would support the existence of an alibi defense.” Thus, the
court concluded that defendant’s “unsupported and
conclusory allegations are not sufficient to establish that a
valid defense existed.”
We agree with the district court’s assessment of defendant’s
allegations in this regard. Because defendant alleged
ineffective assistance on this point without providing the
district court with any specific facts regarding his alibi or
what counsel should have investigated, the court properly
denied this claim without a hearing. See Osorio, 170 P.3d at
800; see also People v. Zuniga, 80 P.3d 965, 973 (Colo.
App. 2003) (The defendant’s allegations of deficient
performance were insufficient because they did not explain
what “counsel should have done, what the results of those
efforts would have been, and how they would have affected
the outcome of the case.”).
Defendant argues otherwise, identifying in his appellate
briefs allegations of facts which he believes, if investigated
by counsel, would have established a meritorious alibi
defense. Defendant did not allege these facts in his Crim. P.
35(c) motion.
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Ultimately, we are constrained by the contents of the record
presented to us: A party “cannot overcome the lack of
information in the record by statements in the briefs.”
Fendley v. People, 107 P.3d 1122, 1125 (Colo. App. 2004);
see McCall v. Meyers, 94 P.3d 1271, 1272 (Colo. App. 2004)
(statements in briefs may be disregarded absent record
support); Subsequent Injury Fund v. Gallegos, 746 P.2d 71,
73 (Colo. App. 1987) (“[T]he statements of counsel may not
substitute for that which must appear of record.”); see also
Sylvia H. Walbolt & Susan L. Landy, Pointers on Preserving
the Record, 25 Litig. 31, 31 (1999) (“[S]omething that does
not make it into the record never happened for purposes of
appeal.”).
Because the “new” factual allegations appearing in
defendant’s briefs were not presented to the trial court, we
do not consider them on appeal. Cf. People v. Goldman,
923 P.2d 374, 375 (Colo. App. 1996) (allegations not raised
in a Crim. P. 35(c) motion to the trial court are not properly
before the court on appeal).
The district court properly denied this aspect of defendant’s
ineffective assistance of counsel claim without a hearing.
(Doc. # 11-16 at 9–12.)
B.
EXHAUSTION AND PROCEDURAL DEFAULT
A state prisoner seeking federal habeas corpus relief generally is required to
exhaust available state court remedies prior to filing suit in federal court. Montez v.
McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (citing Coleman v. Thompson, 501 U.S.
722, 731 (1991)). This requires an applicant to have “fairly presented” his claims to the
state courts. See Castille v. Peoples, 489 U.S. 346, 351 (1989). As a general rule, fair
presentment means that the federal issues have been “properly presented to the
highest state court, either by direct review of the conviction or in a postconviction
attack.” Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (quoting Dever v. Kan.
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State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994)); see also Selsor v. Workman,
644 F.3d 984, 1026 (10th Cir. 2011) (“To exhaust a claim, a state prisoner must pursue
it through one complete round of the State’s established appellate review process,
giving the state courts a full and fair opportunity to correct alleged constitutional errors”).
Federal courts “do not review issues that have been defaulted in state court on
an independent and adequate state procedural ground, unless the default is excused
through a showing of cause and actual prejudice or a fundamental miscarriage of
justice.” Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998). Application of this
procedural default rule in the habeas corpus context is based on comity and federalism
concerns. See Coleman, 501 U.S. at 730.
“A state procedural ground is independent if it relies on state law, rather than
federal law, as the basis for the decision.” English v. Cody, 146 F.3d 1257, 1259 (10th
Cir. 1998). A state procedural ground is adequate if it “was firmly established and
regularly followed.” Beard v. Kindler, 558 U.S. 53, 60 (2009) (internal quotation marks
omitted).
1. Ineffective Assistance of Counsel Claim Regarding Third Robbery
Although not discussed by the Respondents or Mr. Gregg, the CCA’s opinion
specifically stated that in Mr. Gregg’s Colorado Rules of Criminal Procedure Rule 35(c)
postconviction motion, he only presented an IAC claim regarding failure to investigate
his alibi for the first robbery. Therefore, his IAC claim regarding failure to investigate his
alibi for the third robbery was never presented to the state courts. As such, his IAC
claim as to the third robbery is unexhausted, but anticipatorily defaulted because any
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attempt to raise the claim in state court now would be rejected as untimely under C.R.S.
§ 16-5-402, or barred as an abuse of process under Colo. Crim. P. Rule 35(c)(3)(VII)
(stating that postconviction court shall deny any claim that could have been raised in
prior appeal or postconviction proceeding).
As the IAC claim regarding the third robbery was anticipatorily defaulted, the
default may be excused based on Martinez v. Ryan. Therefore, Respondents’ motion to
rule on the claim is denied as to this part of Claim 4(a).
2. Ineffective Assistance of Counsel Claim Regarding First Robbery
The difficult issue in Respondents’ Motion is whether the CCA’s denial of Mr.
Gregg’s IAC claim as to the first robbery was on an independent and adequate state
procedural ground or on the merits.
Mr. Gregg maintains that his claim was dismissed for failure to comply with
Colorado Rule Crim. P. 35(c), which is an independent and adequate state procedural
ground. In making his argument, Applicant cites to the Respondents’ own words, when
they stated the following in their Answer:
This state rule requiring specificity in the presentation of
facts is independent and adequate to establish a procedural
default on federal habeas review. It is neither dependent on,
nor interwoven with, federal law. And as demonstrated by
the CCA’s cited cases and others, it is well-established and
regularly followed. See ECF No. 11-16 at 10 (citing cases);
see also, e.g., People v. Rodriguez, 914 P.2d 230, 251
(Colo. 1996) (refusing to review postconviction claims given
defendant’s “failure to adequately specify the errors and
legal grounds for relief” in the district court); People v.
Venzor, 121 P.2d 260, 262 (Colo. App. 2005) (postconviction
claims that are “bare and conclusory in nature, and lack
supporting factual allegations,” may be denied without a
hearing and without appointing counsel); People v. Clouse,
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74 P.3d 336, 341 (Colo. App. 2002) (“[B]ecause the motion
contained only conclusory allegations . . . it was still subject
to summary dismissal by the trial court.”)
(Doc. # 40 at 2 (citing Doc. # 19 at 23)).
According to Mr. Gregg, the CCA denied his claim because it was inadequately
pled and did not meet the requirements of Colorado Rule Crim. P. 35(c). Mr. Gregg
argues that this situation is exactly the type of situation that the Supreme Court was
concerned with in Martinez. The Martinez Court stated:
Without the help of an adequate attorney, a prisoner will
have . . . difficulties vindicating a substantial ineffectiveassistance-of-trial-counsel claim. Claims of ineffective
assistance at trial often require investigative work and an
understanding of trial strategy. When the issue cannot be
raised on direct review, moreover, a prisoner asserting an
ineffective-assistance-of-trial-counsel claim in an initialreview collateral proceeding cannot rely on a court opinion or
the prior work of an attorney addressing that claim. Halbert,
545 U.S., at 619, 125 S.Ct. 2582. To present a claim of
ineffective assistance at trial in accordance with the State's
procedures, then, a prisoner likely needs an effective
attorney. . . .
The prisoner, unlearned in the law, may not comply with the
State's procedural rules or may misapprehend the
substantive details of federal constitutional law. Cf., e.g., id.,
at 620–621, 125 S.Ct. 2582 (describing the educational
background of the prison population). While confined to
prison, the prisoner is in no position to develop the
evidentiary basis for a claim of ineffective assistance, which
often turns on evidence outside the trial record.
A prisoner's inability to present a claim of trial error is of
particular concern when the claim is one of ineffective
assistance of counsel. The right to the effective assistance of
counsel at trial is a bedrock principle in our justice system.
Martinez v. Ryan, 566 U.S. at 11–12.
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In contrast, Respondents now argue that when an IAC claim is dismissed as
“vague and conclusory,” it is an adjudication on the merits. Respondents cite to
numerous unpublished cases from this district, as well as an unpublished Tenth Circuit
case, which states: “We conclude that the Colorado Court of Appeals’s decision was not
contrary to or an unreasonable application of federal law because [Applicant] made no
more than vague and conclusory allegations to support his conspiracy claim.” (Doc. #
34 at 5 (citing Weatherall v. Sloan, 415 F. App’x 846, 849 (10th Cir. 2011)). The Tenth
Circuit further explained in a footnote that:
The Colorado Court of Appeals cited to People v. Rodriguez,
914 P.2d 230 (Colo. 1996), and Hooker v. People, 173 Colo.
226, 477 P.2d 376 (1970), which stand for the rule that a
court may summarily deny a Colo. R. Crim.P. 35 motion if
the motion does not specify facts from which the court can
discern any basis for a constitutional claim. The Court of
Appeals’s decision does not rest on entirely independent
state law grounds because the Colorado Court of Appeals
had to look to federal law to determine whether [Applicant’s]
factual allegations would support a federal due process
claim. Thus, although the dismissal was pursuant to a state
procedural rule, the application of that rule incorporated
federal law.
Weatherall, 415 F. App’x at 849 n. 3.
The unpublished Weatherall opinion is not precedential, but can be considered
for persuasive value. See 10th Cir. R. 32.1(A). Despite this and other citations from the
unpublished cases, the Court is not persuaded that in the specific factual circumstances
of this case that Mr. Gregg’s IAC claim should be considered adjudicated on the merits
in state court. The procedural posture and specific factual circumstances of Mr. Gregg’s
case implicates significant equitable concerns discussed in Martinez. In his
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postconviction proceeding, Mr. Gregg proceeded pro se and attempted to plead an IAC
claim. The trial court denied his claim, without a hearing and without appointing
counsel, stating that: “Defendant has failed to offer any specific description of the facts
which support this alibi defense, nor has he provided any exhibits or affidavits that
would support the existence of an alibi defense.” (Doc. # 19-1 at 5–6). After the trial
court’s dismissal, and with the information provided in the trial court’s written order as to
why his claim was dismissed (his failure to offer specific facts), Applicant appealed the
dismissal (again pro se), but this time included a specific description of facts which
supported his claim and alibi defense. Despite providing specific facts, the CCA refused
to consider them because they were not included in his original pro se 35(c) motion.
Under these specific circumstances, Mr. Gregg’s pro se ignorance of pleading
standards has resulted in his IAC claim never receiving proper consideration. The
Respondents’ argument that the claim was adjudicated on the merits because it was
dismissed as “vague and conclusory” is not persuasive when Mr. Gregg provided
additional specific factual allegations as soon as he was made aware that such specifics
were necessary. As the Martinez Court stated:
Allowing a federal habeas court to hear a claim of ineffective
assistance of trial counsel when an attorney's errors (or the
absence of an attorney) caused a procedural default in an
initial-review collateral proceeding acknowledges, as an
equitable matter, that the initial-review collateral proceeding,
if undertaken without counsel or with ineffective counsel,
may not have been sufficient to ensure that proper
consideration was given to a substantial claim.
Martinez v. Ryan, 566 U.S. 1 at 13–14.
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Furthermore, it is unsettling that if we accept the Respondents’ position, Mr.
Gregg would be in a better situation currently if he had never even attempted to assert
an IAC claim as to the first robbery. In such a case, the IAC claim would be
unexhausted and anticipatorily defaulted in state court (similar to his IAC claim for the
third bank robbery) and, thus, he might be entitled to a merits-based review of the claim
in federal court if he could meet the demanding requirements of Martinez v. Ryan.
However, because he was proceeding pro se, he was unable to artfully plead his
IAC claim in his postconviction motion. As a result, the trial court determined it was
“vague and conclusory.” The trial court did not provide him with an opportunity to
amend his postconviction motion. As such, he never had a chance to demonstrate that
he had specific factual allegations that were not “vague and conclusory.” It would not
serve the equitable rationale of Martinez to conclude that the state court’s decision that
his inartfully pled pro se claim was “vague and conclusory” constituted a decision on the
merits. It is undisputed that no state court ever considered his specific factual
allegations of his IAC claim, which were included in his pro se state postconviction
appellate brief. As Justice Breyer stated in dicta in Gallow v. Cooper, 133 S. Ct. 2730,
2731 (Breyer, J.): “[W]here state habeas counsel deficiently neglects to bring forward
‘any admissible evidence’ to support a substantial claim of ineffective assistance of trial
counsel [or where there is no counsel at all], there seems to me to be a strong argument
that the state habeas counsel’s ineffective assistance results in a procedural default of
that claim.”
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As such, Respondents’ Motion to Vacate Evidentiary Hearing and Rule on Claim
is also denied as to Respondents’ request to rule on the claim relating to Mr. Gregg’s
IAC claim for the first robbery.
III.
CONCLUSION
Accordingly, it is ORDERED that Respondents’ Motion to Vacate Evidentiary
Hearing and Rule on Claim (Doc. # 34) is DENIED in part as to its request that the
Court rule on the claim. It is
FURTHER ORDERED that Counsel shall contact chambers within fourteen (14)
days to re-schedule the evidentiary hearing date.
DATED: January 17, 2018
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
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