Wellman v. Colorado Department of Corrections, The

Filing 31

ORDER to Dismiss in Part and for Answer. Claims four and five of the Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Docket No. 7 ) are DISMISSED WITH PREJUDICE as procedurally defaulted. Within thirty days of thi s order, Respondents shall file an Answer that fully addresses the merits of Applicant's properly exhausted claims one, two, and three of the Amended Application. ORDERED by Judge William J. Martinez on 3/22/2018. by Judge William J. Martinez on 3/22/2018. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-2222-WJM
JIMMIE WELLMAN,
Applicant,
v.
COLORADO DEPARTMENT OF CORRECTIONS, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER TO DISMISS IN PART AND FOR ANSWER

Applicant, Jimmie Wellman, is in the custody of the Colorado Department of
Corrections (CDOC) at the Arkansas Valley Correctional Facility in Ordway, Colorado.
He initiated this action on September 14, 2017, by filing an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. ' 2254 (Docket No. 1) challenging the validity of a
convictions and sentence imposed in the District Court of Denver County, Colorado. Mr.
Wellman filed an Amended § 2254 Application on November 16, 2017. (Docket No. 7).
On November 22, 2017, U.S. Magistrate Judge Gordon P. Gallagher directed
Respondents to file a pre-answer response addressing the affirmative defenses of
timeliness under 28 U.S.C. ' 2244(d) and exhaustion of state court remedies under 28
U.S.C. ' 2254(b)(1)(A). Respondents submitted a Pre-Answer Response on December
11, 2017. (Docket No. 12). Applicant filed a Reply on February 23, 2018, after
obtaining an extension of time. (Docket No. 20).

Mr. Wellman’s filings are construed 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 cannot act as an advocate for pro se
litigants. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will
dismiss the Application, in part.
I. Background and State Court Proceedings
In October 2007, Mr. Wellman was convicted by a jury in Denver County District
Court Case No. 06CR977 of attempted first degree murder, assault, menacing, and
witness intimidation and tampering. (Docket No. 12-1 at 2; No. 12-5 at 13). He was
sentenced to an aggregate 70-year prison term. (Id.). The Colorado Court of Appeals
affirmed Applicant’s convictions in People v. Jimmie Wellman, No. 07CA2366 (Colo. App.
Sept. 9, 2010) (unpublished) (Wellman I) (Docket No. 12-5). The Colorado Supreme
Court denied Applicant’s petition for certiorari review on January 18, 2011. (Docket No.
12-6). The United States Supreme Court denied certiorari review on June 13, 2011.
(Docket No. 12-7).

.

Mr. Wellman filed a motion for post-conviction relief on July 13, 2011, which the
state district court denied on January 9, 2014. (Docket No. 12-1 at 4, 8). The Colorado
Court of Appeals affirmed in People v. Jimmie Wellman, No. 14CA0358 (Colo. App. Jan.
28, 2016) (unpublished) (Wellman II). (Docket No. 12-11). Applicant’s petition for
certiorari review was denied by the Colorado Supreme Court on September 12, 2016.
(Docket No. 12-12).
Mr. Wellman filed another post-conviction motion on December 30, 2016, which
was denied by the state district court on February 2, 2017. (Docket No. 12-1 at 10). He
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did not appeal. Applicant filed his third and fourth state post-conviction motions on
September 5, 2017 and September 26, 2017, which were denied on September 8, 2017
and September 27, 2017, respectively. (Id.). Applicant did not appeal either order.
Mr. Wellman initiated this § 2254 proceeding on September 14, 2017. He asserts
the following claims for relief in his Amended § 2254 Application:
(1) Applicant’s constitutional rights to counsel, a fair trial, and due process
were violated when the state district court deprived him of his right to
counsel because he never validly waived his right to counsel, or if he did,
the waiver was later revoked;
(2) Applicant was denied his constitutional right to a fair trial because the trial judge
was biased against him;
(3) Applicant’s due process rights were violated when he was tried without any
meaningful opportunity to prepare his defense;
(4) Applicant’s equal protection and due process rights were violated when he was
forced to wear jail clothing and shackle restraints throughout his three-day trial;
(5) Applicant was denied his Sixth Amendment right to effective assistance of
counsel on appeal when appellate counsel omitted meritorious claims and
inadequately raised a claim of a denial of self-representation.
(Docket No. 7 at 5-12).
In the Pre-Answer Response, Respondents concede that the Application is timely
under the one-year limitation period set forth in 28 U.S.C. § 2244(d). (Docket No. 12 at
4-7). Respondents further concede that Applicant exhausted state court remedies for
claims one, two and three. (Id. at 10-13). Respondents argue, however, that claims
four and five are procedurally defaulted in the state courts and, therefore, those claims
are barred from merits review by this Court. (Id. at 13-16).

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II. Standard of Review
Pursuant to 28 U.S.C. ' 2254(b)(1), an application for 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, 843 (1999); Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th 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). A claim must be presented as a federal
constitutional claim in the state court proceedings in order to be exhausted. See Duncan
v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam). Furthermore, the Asubstance of a
federal habeas corpus claim@ must have been presented to the state courts in order to
satisfy the fair presentation requirement. Picard v. Connor, 404 U.S. 270, 278 (1971);
see also Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989). A state prisoner
bringing a federal habeas corpus action bears the burden of showing that he has
exhausted all available state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th
Cir. 1992).
A claim that has been procedurally defaulted in the state courts on an independent
and adequate state procedural ground is barred from federal habeas review, unless the
prisoner can demonstrate cause for the default and actual prejudice as a result of the
federal violation, or demonstrate that failure to consider the claim will result in a
fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991);
Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007). A procedural rule is
independent if it is based upon state law, rather than federal law. Anderson v. Att'y Gen.,
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342 F.3d 1140, 1143 (10th Cir. 2003) (citing English v. Cody, 146 F.3d 1257, 1259 [10th
Cir.1998]). A state procedural rule is adequate if it was “‘firmly established and regularly
followed by the time as of which it is to be applied.’” Id. (quoting Walker v. Att'y Gen., 167
F.3d 1339, 1344 (10th Cir.1999)). The applicant bears the burden of specifically alleging
the inadequacy of a state procedural law. Fairchild v. Workman, 579 F.3d 1134, 1143
(10th Cir. 2009).
An applicant’s pro se status does not exempt him from the requirement of
demonstrating either cause and prejudice or a fundamental miscarriage of justice. See
Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994).
III. Analysis
A. Claim Four
In claim four, Mr. Wellman asserts that his equal protection and due process rights
were violated when he was forced to wear jail clothing and shackle restraints throughout
his three-day trial. (Docket No. 7 at 10-11). Respondents contend that the claim is
procedurally defaulted because the state appellate court denied the claim on a state
procedural ground, without reaching the merits. (Docket No. 12 at 13-14).
On direct appeal, Mr. Wellman did not assert a constitutional violation based on
being forced to wear jail clothing and shackle restraints at trial. (See generally Docket
No. 12-2, Opening Brief in Wellman I). In his state post-conviction proceeding, Applicant
argued that his due process rights were violated when he was forced to wear shackles,
leg braces, jail clothing and a stun belt during his trial. (Docket No. 12-8 at 15-20).
In Wellman II, the Colorado Court of Appeals did not reach the merits of Applicant’s
claim. Instead, the state appellate court concluded that the claim was successive
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because it could have been raised on direct appeal. (Docket No. 12-11 at 6-9). The
court stated:
Under Crim. P. 35(c)(6)(VI) and (VII), subject to certain specified
exceptions, a court must deny any claim that either was raised and resolved
in a prior appeal or postconviction proceeding or that could have been
presented in a previously brought appeal of postconviction proceeding.
People v. Wilson, ___ P.3d ___ (Colo. App. No. 09CA1073, June 23, 2011)
(postconviction claims of trial error that could have been raised on direct
appeal, but were not, are successive under Crim. P. 35(c)(3)(VII), aff’d 349
P.3d 257 (Colo. 2015); see People v. Canody, 166 P.3d 218, 221 (Colo.
App. 2007) (claims that are ordinarily raised on direct appeal cannot be
raised for the first time in a Crim. P. 35 motion).
(Id. at 7).
Colo. Crim. P. Rule 35(c)(3)(VII) is a state procedural rule that was firmly
established and applied regularly by the Colorado courts at the time of Applicant’s
post-conviction proceeding. See, e.g., Ellis v. Raemisch, 872 F.3d 1064, 1093 n.7 (10th
Cir. 2017) (proceeding “on the assumption that the provisions of Rule 35(c)(3)(VII) at
issue here satisfy the independence and adequacy criteria”); see also Welch v. Milyard,
No. 11-1214, 436 F. App’x. 861, 869 (10th Cir. 2011) (unpublished) ( “[W]ere Mr. Welch to
attempt to raise this claim in the [Colorado] state trial court at this juncture, it would be
dismissed. . . . Thus, Mr. Welch has procedurally defaulted his claim . . . . ”) (citations
omitted)); Gonzales v. Hartley, No. 10-1250, 396 F. App’x. 506, 508 (10th Cir. 2010)
(unpublished) (“Because Colorado law now prevents him from presenting these claims,
see Colo. R. Crim. P. 35(c)(3)(VII), all of Mr. Gonzales's current objections are
procedurally defaulted.”).
The Court finds that Mr. Wellman defaulted claim four in the state courts pursuant
to an adequate and independent state procedural rule. Therefore, Applicant must meet
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the cause and prejudice standard or the fundamental miscarriage of justice exception to
pursue federal habeas corpus relief. See Coleman, 501 U.S. at 750.
To show cause for his procedural default, Mr. Wellman must demonstrate that
“some objective factor external to the defense impeded [his] efforts to comply” with the
state procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). The fundamental
miscarriage of justice exception is “a narrow exception to the cause requirement where a
constitutional violation has probably resulted in the conviction of one who is actually
innocent of the substantive offense.” Dretke v. Haley, 541 U.S. 386, 393 (2004) (internal
quotation marks and citation omitted).
Mr. Wellman does not allege any facts to demonstrate the existence of an external
cause for his failure to raise the substance of claim four in his direct appeal proceeding.
Applicant’s pro se and incarcerated status, without more, does not excuse his procedural
default. See Abeyta v. Estep, No. 06-1220, 198 F. App’x. 724, 727 (10th Cir. 2006)
(unpublished decision) (“The district court was well within its discretion to decide that
[petitioner's] reasons given for failure to exhaust—including difficulty obtaining the record
in his first state post-conviction matter, lack of library access, and lack of counsel—did not
constitute a sufficient showing of justifiable excuse or excusable neglect, let alone good
cause (factually or legally) for the failure to exhaust”). Accord Marsh v. Soares, 223 F.3d
1217, 1220 (10th Cir.2006) (a prisoner’s ignorance of the law does not excuse his failure
to comply with statute of limitations applicable habeas corpus actions).
Further, although Applicant does not assert that appellate counsel was ineffective
in failing to raise the substance of claim four on direct appeal, the Court notes that such an
argument would fail because a claim of ineffective assistance of appellate counsel must
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first be exhausted in the state courts before it can be urged as cause for a procedural
default. See Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). In his state
post-conviction proceeding, Mr. Wellman did not exhaust a claim that appellate counsel
was ineffective in failing to raise the substance of claim four on direct appeal. (See
generally Docket Nos. 12-8, 12-11). And, Mr. Wellman has failed to demonstrate cause
to excuse the default of his ineffective assistance of appellate counsel claim. See
Edwards, 529 U.S. at 452.
Finally, Mr. Wellman does not make a colorable showing of actual innocence in
either his Amended Application or Reply. Arguments concerning Applicant’s legal
innocence, as opposed to factual innocence, are insufficient. See, e.g., Ellis v. Hargett,
302 F.3d 1182, 1186 n. 1 (10th Cir. 2002) (rejecting miscarriage of justice argument
because it merely “assert [s] that [petitioner] is legally innocent because his conduct is
justified or mitigated by the doctrines of self-defense or heat of passion”); Beavers v.
Saffle, 216 F.3d 918, 923 (10th Cir. 2000) (“Mr. Beavers does not claim that he is innocent
of killing Raymond Matthews. Rather, he claims that he is not guilty of first degree murder
because he was intoxicated and acted in self defense. However, these arguments go to
legal innocence, as opposed to factual innocence.”).
Claim four of the Amended § 2254 Application will be dismissed as procedurally
defaulted.
B. Claim Five
In claim five, Mr. Wellman asserts that he was denied his Sixth Amendment right to
effective assistance of counsel on appeal when appellate counsel omitted meritorious
claims and inadequately raised a claim that Applicant was denied his right of
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self-representation. (Docket No. 7 at 11-12). Applicant does not assert what specific
“meritorious” claims that appellate counsel should have raised. (Id.). Respondents
argue that Applicant procedurally defaulted claim five in the state courts pursuant to an
adequate and independent state procedural rule. (Docket No. 12 at 14-16).
In his Opening Brief in Wellman II, Applicant argued that his direct appeal counsel
was constitutionally ineffective in failing to raise the following issues: (1) Applicant’s
consecutive sentences are illegal because the state court imposed an aggravated
sentence for attempted first degree murder when he was not convicted of a crime of
violence and the offense is not per se a crime of violence; (2) Applicant received
ineffective assistance of counsel at sentencing due to a conflict of interest; (3) Applicant
was denied his constitutional right to counsel, or his waiver of counsel was invalid due to
incompetency; and, he was denied the right to prepare an adequate defense; (4) the trial
court erred in admitting evidence of a prior sexual assault committed by Applicant, in
violation of Colo. R. Evid. 404(b). (See generally Docket No. 12-8).
The Colorado Court of Appeals declined to address Applicant’s claims because
the allegations of ineffective assistance of appellate counsel asserted on appeal were
different from the allegations Mr. Wellman raised his Colo. Crim. P. Rule 35(c) motion
before the state district court. (Docket No. 12-11 at 10, citing People v. Osorio, 170 P.3d
796, 801 (Colo. App. 2007) (“Allegations not raised in a Crim. P. 35(c) motion or during
the hearing on that motion and thus not ruled on by the trial court are not properly before
this court for review”) (quoting People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996)).
The Goldman rule relied on by the Colorado Court of Appeals to reject Applicant’s
ineffective-assistance-of-appellate-counsel claims is firmly established and regularly
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followed by the state appellate courts. See, e.g., DePineda v. Price, 915 P.2d 1278,
1280 (Colo. 1996); People v. Stovall, 284 P.3d 151, 153 (Colo. App. 2012); People v.
Wolfe, 213 P.3d 1035, 1037 (Colo. App. 2009). See also Boetger v. Burnell, No.
14-cv-00675-PAB, 2015 WL 855811, at *8 (D. Colo. Feb. 26, 2015) (citing Goldman as an
adequate and independent state procedural rule to support the court’s finding that the
petitioner had “procedurally defaulted the issue of appellate counsel’s ineffectiveness”).
The Court finds that Mr. Wellman procedurally defaulted claim five in the state
courts. Consequently, he must meet the cause and prejudice standard or the
fundamental miscarriage of justice exception to pursue his claims in this federal habeas
proceeding. See Coleman, 501 U.S. at 750.
For the reasons discussed in conjunction with claim four, the Court finds that Mr.
Wellman has failed to meet the cause and prejudice standard to excuse his procedural
default of claim five in the state courts. Moreover, he does not raise a colorable claim of
factual innocence. Consequently, claim five of the Application will be dismissed as
procedurally barred.
III. Orders
For the reasons discussed above, it is
ORDERED that claims four and five of the Amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. ' 2254 (Docket No. 7) are DISMISSED WITH
PREJUDICE as procedurally defaulted. It is
FURTHER ORDERED that, within thirty days of this order, Respondents shall
file an Answer that fully addresses the merits of Applicant's properly exhausted claims
one, two, and three of the Amended Application. It is
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FURTHER ORDERED that Applicant may file a Reply within thirty days from the
date that Respondents file their Answer.
Dated this 22nd day of March, 2018.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

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