Ford v. Raemisch et al
ORDER to Dismiss in Part. 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 claim. ORDERED by Judge William J. Martinez on 12/05/2017. (angar, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-1395-WJM
CHARLES K. FORD,
RICK RAEMISCH, Executive Director, Colorado Department of Corrections, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER TO DISMISS IN PART
Applicant, Charles K. Ford, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Ford has filed pro se an amended Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 9) challeng ing the validity of
his conviction and sentence in Denver District Court case number 08CR10514.
On September 12, 2017, Magistrate Judge Gordon P. 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 October 3, 2017, Respondents f iled their PreAnswer Response (ECF No. 14) arguing that two of Mr. Ford’s claims should be
dismissed. Mr. Ford has not filed a reply to the Pre-Answer Response despite being
given an opportunity to do so.
The Court must construe the amended application liberally because Mr. Ford 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 (10 th 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 action in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
The following background information is taken from the opinion of the Colorado
Court of Appeals on postconviction appeal.
In a city park, defendant got into a fistfight with the
victim. After the fight ended and the victim was walking
away, defendant acquired a gun from an acquaintance and
shot the victim several times. Although initially charged with
first degree murder, pursuant to a plea agreement,
defendant pleaded guilty to one count of second degree
murder and one count of first degree assault in the shooting
death of the victim. As part of the plea agreement,
defendant agreed to provide truthful information and
testimony about other crimes and the perpetrators of those
crimes. In exchange, the prosecution agreed to limit the
sentence to between thirty-five and sixty years in the
custody of the Department of Corrections (DOC) and to
allow the court to consider defendant’s cooperation in those
other cases in determining the sentence and whether to
reduce the sentence on reconsideration.
Defendant’s sentencing was postponed for several
months to allow him to provide testimony in those other
cases and to enable the court to consider his cooperation in
arriving at an appropriate sentence within the stipulated
range. As it turned out, however, all of those cases were
resolved without the prosecution needing defendant to
Before sentencing, defendant’s two attorneys, Mr.
Rios and Ms. Frei, filed a Crim. P. 32(d) motion to withdraw
defendant’s guilty plea, alleging that they had provided
ineffective assistance. At the same time, they sought to
withdraw as his counsel and to have alternate defense
counsel appointed. The district court denied both the Crim.
P. 32(d) motion and counsel’s motion to withdraw, and
sentenced defendant to consecutive prison terms of thirtytwo years on the second degree murder conviction and
twelve years on the first degree assault conviction. A
division of this court affirmed the denial of defendant’s Crim.
P. 32(d) motion. See People v. Ford, (Colo. App. No.
10CA1090, Mar. 15, 2012) (not published pursuant to C.A.R.
After the mandate issued following his direct appeal,
defendant filed a pro se Crim. P. 35(b) motion for
reconsideration of his sentence. The district court denied
that motion, finding that defendant’s sentence was within the
range provided for in the plea agreement, was appropriate
when entered, and remained appropriate.
Defendant thereafter filed a pro se Crim. P. 35(c)
motion alleging that he received ineffective assistance of
counsel because (1) Mr. Rios promised him that his initial
sentence would be cut in half on reconsideration; (2) Mr.
Rios did not accurately advise him that he would have to
serve seventy-five percent of his sentence before becoming
parole eligible; (3) he was promised as part of the plea
agreement that he would be transferred out of state, but Mr.
Rios failed to require specific performance of that promise;
and (4) he was coerced into pleading guilty because his
attorneys failed to fully investigate the facts of the case and
his self-defense claim and pressured him into accepting the
plea. He also alleged that, but for counsel’s deficient
performance, he would not have accepted the plea, and
instead, would have insisted on going to trial.
The district court, by a written order, denied the claim
regarding plea counsel’s failure to investigate because
defendant failed to allege with specificity what investigation
could have been done, what the result of such an
investigation would have been, and how it would have
changed his decision to plead guilty. However, the court
found that defendant’s remaining claims had arguable merit
and appointed counsel to represent him.
A supplemental motion filed by counsel reiterated
defendant’s first three claims, specifically alleging that plea
counsel had promised defendant he would be sentenced to
thirty-five years and that the sentence would be reduced to
seventeen and a half years upon reconsideration. The
supplemental motion alleged that the promises made as part
of the plea agreement were unenforceable and that
defendant therefore should be allowed to withdraw his plea.
At the postconviction hearing, defendant, Mr. Rios,
Ms. Frei, and the district attorney testified. The court denied
defendant’s motion by a written order. The court found
credible Mr. Rios’ testimony that he never promised
defendant a sentence of thirty-five years or told him that it
would be cut in half on reconsideration. The court also
found that the plea agreement did not include a promise that
defendant would serve his sentence out of state. The court
noted that neither the People nor def endant’s attorney had
the authority to get him transferred, but that they could make
a request to the DOC for such a transfer, which was
completely within the DOC’s discretion. Thus, the court
concluded that because defendant was fully advised about
his plea agreement and Rios did not make additional
promises to him, he failed to establish that his counsel’s
performance was deficient.
(ECF No. 14-6 at 3-7) (People v. Ford, No. 15CA0438 (Colo. App. Mar. 16, 2017)
(unpublished)). The Colorado Court of Appeals affirmed the trial court’s order denying
the Rule 35(c) motion. (See ECF No. 14-6).
Mr. Ford asserts two claims in the amended application. According to
Respondents, Mr. Ford contends in claim 1 that counsel were ineffective when they: (a)
promised Mr. Ford his initial sentence would be cut in half on reconsideration; (b) did
not accurately advise Mr. Ford he would have to serve seventy-five percent of his
sentence before being eligible for parole; (c) failed to require specific performance of
the plea-agreement promise that Mr. Ford would be transferred out of state for his
safety; and (d) coerced Mr. Ford’s guilty plea by failing to fully investigate the facts of
the case and his self-defense claim. Mr. Ford contends in claim 2 that the terms of his
plea agreement were breached.
II. ONE-YEAR LIMITATION PERIOD
Respondents do not argue that this action is barred by the one-year limitation
period in 28 U.S.C. § 2244(d).
III. EXHAUSTION OF STATE REMEDIES
Pursuant to 28 U.S.C. § 2254(b)(1), an application f or a writ of habeas corpus
may not be granted unless it appears that the applicant has exhausted state remedies
or that no adequate state remedies are available or effective to protect the applicant’s
rights. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kan. State
Penitentiary, 36 F.3d 1531, 1534 (10 th Cir. 1994). The exhaustion requirement is
satisfied once the federal claim has been presented fairly to the state courts. See
Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the
federal issue be presented properly “to the highest state court, either by direct review of
the conviction or in a postconviction attack.” Dever, 36 F.3d at 1534.
Furthermore, the “substance of a federal habeas corpus claim” must have been
presented to the state courts in order to satisf y the fair presentation requirement.
Picard v. Connor, 404 U.S. 270, 278 (1971); see also Nichols v. Sullivan, 867 F.2d
1250, 1252 (10 th Cir. 1989). Fair presentation does not require a habeas corpus
petitioner to cite “book and verse on the federal constitution.” Picard, 404 U.S. at 278
(internal quotation marks omitted). However, “[i]t is not enough that all the facts
necessary to support the federal claim were before the state courts, or that a somewhat
similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per
curiam) (citation omitted). “If state courts are to be given the opportunity to correct
alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that
the prisoners are asserting claims under the United States Constitution.” Duncan v.
Henry, 513 U.S. 364, 365-66 (1995) (per curiam). Thus,
[a] litigant wishing to raise a federal issue can easily indicate
the federal law basis for his claim in a state-court petition or
brief, for example, by citing in conjunction with the claim the
federal source of law on which he relies or a case deciding
such a claim on federal grounds, or by simply labeling the
Baldwin v. Reese, 541 U.S. 27, 32 (2004).
Finally, “[t]he exhaustion requirement is not one to be overlooked lightly.”
Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10 th Cir. 1995). A state prisoner bringing a
federal habeas corpus action bears the burden of showing he has exhausted all
available state remedies for each particular claim. See Miranda v. Cooper, 967 F.2d
392, 398 (10 th Cir. 1992). A blanket statement that state remedies have been
exhausted does not satisfy this burden. See Olson v. McKune, 9 F.3d 95 (10 th Cir.
1993); see also Fuller v. Baird, 306 F. App’x 430, 431 n.3 (10 th Cir. 2009) (stating a bald
assertion unsupported by court records is insufficient to demonstrate state remedies
Respondents concede that claims 1(a), 1(b), and 1(c) are exhausted. However,
Respondents argue that Mr. Ford failed to exhaust state remedies for claim 1(d) and
Claim 1(d) is an ineffective assistance of counsel claim in which Mr. Ford
contends counsel coerced his guilty plea by failing to fully investigate the facts of the
case and his self-defense claim. Respondents concede that Mr. Ford raised this
ineffective assistance of counsel claim in his postconviction Rule 35 (c) motion.
However, Respondents maintain that claim 1(d) was not fairly presented to the
Colorado Court of Appeals because Mr. Ford failed to raise claim 1(d) on appeal from
the denial of the postconviction Rule 35(c) motion. Mr. Ford does not argue otherwise
and the Court’s review of Mr. Ford’s briefs on appeal from the denial of his
postconviction Rule 35(c) motion confirms that claim 1(d) was not included in the
appeal to the Colorado Court of Appeals. (See ECF Nos. 14-3 & 14-5.) Thus, Mr. Ford
failed to exhaust state remedies for claim 1(d).
Mr. Ford contends in claim 2 that the terms of his plea agreement were
breached. Respondents contend that claim 2 was not fairly presented to the state
courts because the claim was presented for the first time on appeal. In particular,
Respondents note that the Colorado Court of Appeals in the postconviction Rule 35(c)
proceedings declined to address Mr. Ford’s claim “that the terms of his plea agreement
were breached [because] this claim was not raised in either his postconviction motion or
at his hearing.” (ECF No. 14-6 at 17-18.) Mr. Ford presents no argument that claim 2
was fairly presented to the state courts on appeal. T hus, he fails to demonstrate he has
exhausted state remedies for claim 2.
IV. PROCEDURAL DEFAULT
The Court may not dismiss the unexhausted claims for failure to exhaust state
remedies if Mr. Ford no longer has an adequate and effective state remedy available to
him. See Castille, 489 U.S. at 351. Respondents contend that Mr. Ford no long er has
an adequate and effective state remedy available to him with respect to claim 1(d)
because the time to appeal from the trial court’s order rejecting that claim has passed.
See Colo. App. R. 4(b)(1) (notice of appeal must be filed within 49 days after entry of
order being appealed). With respect to claim 2, Respondents contend that Mr. Ford no
longer has an adequate and effective state remedy available to him because claim 2
was rejected on the basis of an independent and adequate state procedural rule that
prevents an appellate court from addressing a claim raised for the first time on appeal.
See People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996).
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 (10 th Cir. 1998). Even if an
unexhausted claim has not actually been raised and rejected by the state courts on a
procedural ground, the claim still is subject to an anticipatory procedural default if it is
clear that the claim would be rejected because of an independent and adequate state
procedural rule. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Application
of this procedural default rule in the habeas corpus context is based on comity and
federalism concerns. See id. 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 (10 th
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
Mr. Ford fails to demonstrate that the procedural rules identified by Respondents
are not independent and adequate state procedural rules. See Fairchild v. Workman,
579 F.3d 1134, 1143 (10 th Cir. 2009) (noting that a habeas petitioner bears the burden
of presenting specific allegations regarding the inadequacy of the state procedure).
Therefore, claim 1(d) and claim 2 are procedurally defaulted and cannot be considered
unless Mr. Ford demonstrates cause and prejudice or a fundamental miscarriage of
justice. See Jackson, 143 F.3d at 1317.
To demonstrate cause for his procedural default Mr. Ford must show that some
objective factor external to the defense impeded his ability to comply with the state’s
procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). “Objective factors
that constitute cause include interference by officials that makes compliance with the
State’s procedural rule impracticable, and a showing that the factual or legal basis for a
claim was not reasonably available to [applicant].” McCleskey v. Zant, 499 U.S. 467,
493-94 (1991) (internal quotation marks omitted). If Mr. Ford can demonstrate cause,
he also must show “actual prejudice as a result of the alleged violation of federal law.”
Coleman, 501 U.S. at 750. A fundamental miscarriage of justice occurs when “a
constitutional violation has probably resulted in the conviction of one who is actually
innocent.” Murray, 477 U.S. at 496. Mr. Ford’s pro se status does not exempt him from
the requirement of demonstrating either cause and prejudice or a fundamental
miscarriage of justice to overcome a procedural default. See Lepiscopo v. Tansy, 38
F.3d 1128, 1130 (10 th Cir. 1994).
Mr. Ford fails to present any argument to demonstrate either cause and
prejudice for his procedural default of claim 1(d) and claim 2 or that a failure to consider
the merits of those claims will result in a fundamental miscarriage of justice. Therefore,
claim 1(d) and claim 2 are procedurally barred and must be dismissed.
In summary, Respondents concede that the Application is tim ely and that claims
1(a), 1(b), and 1(c) are exhausted. The Court will dismiss claim 1(d) and claim 2
because those claims are procedurally barred. Accordingly, it is
ORDERED that claim 1(d) and claim 2 in the amended application are dismissed
as procedurally barred. 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 claim. It is further
ORDERED that within thirty days of the filing of the answer Applicant may file a
reply, if he desires.
Dated this 5th day of December, 2017.
BY THE COURT:
William J. Martínez
United States District Judge
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