Jones v. Archuleta et al
ORDER TO DISMISS IN PART AND FOR ANSWER by Judge Philip A. Brimmer on 7/5/17. 27 Motion for Expansion of the Record is granted, and 18 Motion for Expansion of the Record is denied. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-03048-PAB
LOU ARCHULETA, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER TO DISMISS IN PART AND FOR ANSWER
Applicant, Bernard Jones, is a prisoner in the custody of the Colorado Department
of Corrections. Mr. Jones has filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 [Docket No. 1] challenging the validity of his conviction and
sentence in El Paso County District Court case number 97CR873.
On January 19, 2017, Magistrate Judge Gallagher ordered Respondents to file a
Pre-Answer Response limited to addressing the affirmative defenses of timeliness under
28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C.
§ 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses in this
action. On January 26, 2017, Respondents filed their Pre-Answer Response, Docket
No. 10, arguing that one of Mr. Jones’ claims is procedurally defaulted and that a portion
of another claim is not cognizable. On June 8, 2017, Mr. Jones filed a Reply to
Pre-Answer Response, Docket No. 24, and, on June 16, 2017, he filed a Supplement to
Reply to Pre-Answer Response. Docket No. 26. Mr. Jones also has filed a Motion for
Expansion of the Record, Docket No. 27, asking the Court to consider exhibits that are
attached to the Reply to Pre-Answer Response. That motion will be granted.
The Court must construe the application and other papers filed by Mr. Jones
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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
For the reasons stated below, the Court will dismiss the application in part.
The relevant factual and procedural background was summarized by the Colorado
Court of Appeals as follows:
A jury convicted Jones of first degree sexual assault
and possession with intent to distribute a controlled
substance. The trial court found that Jones was a habitual
offender and sentenced him to sixty-four years in prison on
the sexual assault conviction and ninety-six years in prison on
the controlled substance conviction. Jones’s convictions
were affirmed on direct appeal. People v. Jones, (Colo. App.
No. 98CA0146, Jan. 13, 2000) (not published pursuant to
Jones then filed a pro se Crim. P. 35(c) motion alleging
ineffective assistance of trial counsel. The trial court
summarily denied the motion. Jones appealed, and a
division of this court remanded the case for an evidentiary
hearing on the ineffective assistance of trial counsel related to
three issues: (1) evidence of the victim’s gang affiliation; (2)
the use of the victim’s juvenile adjudication to show motive or
bias; and (3) the testing of Jones’s dental moldings. People
v. Jones, (Colo. App. No. 01CA1118, Apr. 17, 2003) (not
published pursuant to C.A.R. 35(f)).
In 2006, the trial court held an evidentiary hearing,
which was later reconvened and completed in 2012. On the
date of the final hearing, Jones filed a supplemental Crim. P.
35(c) motion based on alleged newly discovered evidence.
In a detailed and well-reasoned order, the trial court denied
the Rule 35(c) motions and declined to hear evidence on the
Docket No. 10-12 at 2-3.
Mr. Jones commenced the instant action in December 2016 asserting six claims
for relief. The six claims are: ineffective assistance of trial counsel by failing to obtain
evidence of the victim’s gang affiliation (claim 1); ineffective assistance of trial counsel by
failing to present evidence of the victim’s juvenile adjudication (claim 2); the trial court
erred during postconviction proceedings by not considering expert testimony regarding
newly discovered evidence that a bite mark on the sexual assault victim was inconsistent
with defendant’s dentition and his argument that trial counsel were ineffective by failing to
have the bite mark tested (claim 3); trial counsel labored under a conflict of interest (claim
4); ineffective assistance of trial counsel by failing to challenge the validity of his prior
convictions (claim 5); and vindictive prosecution by punishing Mr. Jones for exercising his
constitutional rights (claim 6).
Respondents do not contend that this action is barred by the one-year limitation
period in 28 U.S.C. § 2244(d). Respondents also do not contend that Mr. Jones failed to
exhaust state remedies with respect to claims 1, 2, 4, and 6. Respondents do argue that
claim 3 must be dismissed as procedurally defaulted. With respect to claim 5,
Respondents do not contend that Mr. Jones failed to exhaust state remedies to the extent
he is asserting counsel was ineffective by failing to challenge prior convictions.
However, Respondents argue that claim 5 is not cognizable to the extent Mr. Jones seeks
to directly challenge the prior convictions.
II. CLAIM 3
Construing the application liberally, the Court finds that claim 3 has two parts: a
claim of actual innocence premised on newly discovered evidence that a bite mark on the
sexual assault victim was inconsistent with Mr. Jones’ dentition (claim 3(a)); and a claim
that trial counsel were ineffective by failing to have a defense expert test the bite mark
evidence (claim 3(b)). To the extent Mr. Jones contends in claim 3(a) only that the trial
court erred during postconviction proceedings by failing to consider his newly discovered
evidence, the claim is a non-cognizable challenge to state court postconviction
procedures that does not implicate the validity of his conviction or sentence. See Sellers
v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (a claim of constitutional error that “focuses
only on the State’s post-conviction remedy and not the judgment which provides the basis
for [the applicant’s] incarceration . . . states no cognizable federal habeas claim.”); see
also Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (noting that petitioner’s
challenge to state “post-conviction procedures on their face and as applied to him would
fail to state a federal constitutional claim cognizable in a federal habeas proceeding”).
Respondents do not contend that the ineffective assistance of counsel argument in
claim 3(b) is unexhausted or procedurally defaulted and it is apparent that the Colorado
Court of Appeals rejected that claim on the merits in state court postconviction
proceedings. See Docket No. 10-12 at 10-13. Therefore, the Court will not dismiss
claim 3(b) at this time.
With respect to claim 3(a), Mr. Jones raised the actual innocence claim in a
supplemental motion in the state court postconviction proceedings and the Colorado
Court of Appeals determined the claim was untimely as a matter of state law. See
Docket No. 10-12 at 3, 13-15. Therefore, according to Respondents, claim 3(a) is
procedurally defaulted. See Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998)
(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”). Mr. Jones argues that claim 3(a) should not be dismissed because he can
demonstrate cause and prejudice for the procedural default and that a fundamental
miscarriage of justice will result if the Court declines to consider the claim. He also
argues he is entitled to an evidentiary hearing on the newly discovered evidence. The
Court need not address the issues regarding procedural default or whether an evidentiary
hearing is appropriate because Mr. Jones may not raise a free-standing claim of actual
innocence in this habeas corpus action.
“Claims of actual innocence based on newly discovered evidence have never
been held to state a ground for federal habeas relief absent an independent constitutional
violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506
U.S. 390, 400 (1993). “This rule is grounded in the principle that federal habeas courts
sit to ensure that individuals are not imprisoned in violation of the Constitution – not to
correct errors of fact.” Id.
Mr. Jones apparently seeks to link the newly discovered evidence to a
constitutional due process claim because buried in both the application and his reply to
the Pre-Answer Response are assertions that admission of the bite-mark evidence
rendered his trial fundamentally unfair in violation of due process. See Docket No. 1 at
41; Docket No. 24 at 31-32, 40-41. However, Mr. Jones does not identify any particular
constitutional error with respect to the bite-mark evidence introduced at his trial and it is
apparent that the asserted fundamental unfairness is premised solely on consideration of
the newly discovered evidence. As a result, he fails to present a separate and
independent due process claim that implicates the validity of his sexual assault
conviction. See Allen v. Beck, 179 F. App’x 548, 550-51 (10th Cir. 2006) (concluding
that freestanding claim of actual innocence, i.e., when newly discovered evidence is the
claim itself rather than the factual basis for an independent constitutional violation, is not
cognizable in a habeas corpus case).
Furthermore, the record before the Court does not indicate that Mr. Jones fairly
presented to the state courts a separate and independent due process claim challenging
admission of the bite-mark evidence. Instead, the due process argument was raised as
an issue in support of a request for a new trial in Mr. Jones’ supplemental Rule 35(c)
motion filed in 2012. See Docket No. 24 at 144-63. The issue similarly was raised in
the context of a request for a new trial based on newly discovered evidence on appeal
from the denial of the Rule 35(c) motion. See Docket No. 10-10 at 42-46. However, the
question of whether a new trial should be granted on the basis of newly discovered
evidence is a matter of state law, see Herrera, 506 U.S. at 408 (“[t]he Constitution itself, of
course, makes no mention of new trials”), and matters of state law may not be reviewed in
a federal habeas corpus action. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t
is not the province of a federal habeas court to reexamine state-court determinations on
state-law questions. In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States”).
For these reasons, the Court concludes that claim 3(a) is a free-standing claim of
actual innocence that may not be raised in this habeas corpus action and must be
dismissed. See Herrera, 506 U.S. at 400.
III. CLAIM 5
As noted above, Respondents do not argue that Mr. Jones failed to exhaust state
remedies for claim 5 to the extent he argues counsel was ineffective by failing to
challenge his prior convictions. However, Respondents maintain that claim 5 is not
cognizable to the extent Mr. Jones seeks to directly challenge the prior convictions.
Respondents are correct that a federal habeas petitioner generally may not
challenge the validity of a prior conviction used to enhance a current sentence.
[O]nce a state conviction is no longer open to direct or
collateral attack in its own right because the defendant failed
to pursue those remedies while they were available (or
because the defendant did so unsuccessfully), the conviction
may be regarded as conclusively valid. If that conviction is
later used to enhance a criminal sentence, the defendant
generally may not challenge the enhanced sentence through
a petition under § 2254 on the ground that the prior conviction
was unconstitutionally obtained.
Lackawanna Cty. Dist. Att’y v. Coss, 532 U.S. 394, 403-04 (2001) (citation omitted).
There are two exceptions to this general rule. First, the general rule does not apply to
“§ 2254 petitions that challenge an enhanced sentence on the basis that the prior
conviction used to enhance the sentence was obtained when there was a failure to
appoint counsel in violation of the Sixth Amendment.” Id. at 404. The second exception
applies to “cases in which a petitioner has, through no fault of his own, no means of
obtaining timely review of a constitutional claim.” McCormick v. Kline, 572 F.3d 841, 851
(10th Cir. 2009) (internal quotation marks omitted). Examples of the second exception
include a state court refusing without justification to rule on a properly presented
constitutional claim and a defendant who obtains compelling evidence of actual
innocence after the time for direct or collateral review has expired that could not have
been uncovered in a timely manner. See Lackawanna, 532 U.S. at 405. It is important
to note that the actual innocence example refers to actual innocence with respect to the
prior conviction sought to be challenged. Thus, Mr. Jones’ claim in the application that
he is actually innocent of sexual assault in case number 97CR873 is not relevant in this
Mr. Jones does not argue that there was a failure to appoint counsel in either of the
prior cases he seeks to challenge. Instead, he seeks to invoke the second exception.
He specifically contends he did not have a full and fair opportunity to attack the
constitutionality of his prior convictions in state court because he was denied an
evidentiary hearing to prove actual innocence, he was denied an evidentiary hearing to
prove counsel in the prior cases was ineffective, he was barred by an unconstitutional
state statute from seeking postconviction relief in the prior cases, inordinate delay in
resolving his direct appeal in one of the prior cases prevented him from challenging that
conviction in a federal habeas action, and counsel was ineffective in each of his prior
cases. See Docket No. 1-1 at 27, Document No. 1-2 at 32-33; Docket No. 26 at 16. Mr.
Jones also asserts actual innocence premised on a defense of self-defense that was not
raised with respect to one of the prior convictions. See Docket No. 1-2 at 17-27.
The Court is not persuaded that the second exception to the general rule in
Lackawanna is applicable because Mr. Jones fails to demonstrate either that the state
court refused without justification to rule on a properly presented constitutional claim or
that he has obtained compelling evidence of actual innocence that could not have been
uncovered in a timely manner. See Lackawanna, 532 U.S. at 405. First, the alleged
denials of an evidentiary hearing and his contention that counsel in his prior cases was
ineffective do not demonstrate the state court unjustifiably refused to rule on a
constitutional claim. Second, to the extent Mr. Jones argues he was barred by an
unconstitutional state statute from seeking postconviction relief in the prior cases, he fails
to demonstrate he was prevented from challenging the allegedly unconstitutional state
statute or challenging the prior convictions during the five-year grace period after the
effective date of the relevant state statute in 1984. See People v. Fagerholm, 768 P.2d
689, 693 (Colo. 1989); see also People v. Stephens, 837 P.2d 231, 236 (Colo. App. 1992)
(the announcement of Fagerholm created a present need for a defendant whose
conviction pre-dated the statute’s effective date to collaterally attack the prior conviction
during the five-year grace period). Third, Mr. Jones fails to demonstrate the alleged
inordinate delay in considering his direct appeal prevented him from challenging the prior
convictions in state court. Finally, Mr. Jones’ actual innocence argument premised on
self-defense is foreclosed because self-defense does not demonstrate factual innocence.
See Black v. Workman, 682 F.3d 880, 915 (10th Cir. 2012).
In addition, Mr. Jones fails to demonstrate he has exhausted state remedies for his
claims challenging the validity of the enhanced sentences he currently is serving and
“[c]rucial to the Lackawanna exceptions is the requirement that ‘[a]s with any § 2254
petition,’ a petitioner seeking to invoke the exceptions ‘must satisfy the procedural
prerequisites for relief[,] including, for example, exhaustion of remedies.’” McCormick,
572 F.3d at 851 (quoting Lackawanna, 532 U.S. at 404) (alterations in original). Mr.
Jones alleges only that he exhausted the claims challenging the validity of his prior
convictions by raising them in postconviction proceedings pertinent to his conviction and
sentence in case number 89CR3639. See Docket No. 1-1 at 26. In the instant action,
Mr. Jones is challenging the validity of his conviction and sentence in case number
97CR873. Therefore, whatever claims he may have raised in state court postconviction
proceedings pertinent to case number 89CR3639 did not exhaust state remedies for
claims challenging case number 97CR873. As a result, Mr. Jones fails to satisfy his
burden of demonstrating he has exhausted state remedies with respect to case number
97CR873. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992) (noting that a
state prisoner bringing a federal habeas corpus action bears the burden of showing he
has exhausted all available state remedies).
In summary, Respondents do not raise the one-year limitation period as an
affirmative defense and Respondents concede that claims 1, 2, 4, 6, and the ineffective
assistance of counsel portion of claim 5 are exhausted. The Court will not dismiss claim
3(b) as procedurally barred. However, claim 3(a) and the portion of claim 5 in which Mr.
Jones seeks to directly challenge the validity of his prior convictions are not cognizable in
this action and will be dismissed. Accordingly, it is
ORDERED that the Motion for Expansion of the Record [Docket No. 27] is
GRANTED and the prior unsigned Motion for Expansion of the Record [Docket No. 18] is
DENIED as moot. It is further
ORDERED that claim 3(a) and the portion of claim 5 in which Applicant seeks to
directly challenge the validity of prior convictions are dismissed because those claims are
not cognizable in this action. It is further
ORDERED that within thirty days Respondents are directed to file an answer in
compliance with Rule 5 of the Rules Governing Section 2254 Cases that fully addresses
the merits of the remaining claims. It is further
ORDERED that within thirty days of the filing of the answer Applicant may file a
reply, if he desires.
DATED July 5, 2017.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?