Hardin v. Jaques et al
Filing
22
ORDER TO DISMISS IN PART AND FOR ANSWER by Judge Christine M. Arguello on 5/4/18. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 17-cv-02626-CMA
WILLIAM DANIEL HARDIN,
Applicant,
v.
TERRY JAQUES, Warden,
CYNTHIA COFFMAN, Attorney General of the State of Colorado,
Respondents.
ORDER TO DISMISS IN PART AND FOR ANSWER
Applicant, William Daniel Hardin, is a prisoner in the custody of the Colorado
Department of Corrections, currently incarcerated at the Arkansas Valley Correctional
Facility in Ordway, Colorado. On November 2, 2017, Mr. Hardin filed pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. # 1) and a
Letter (Doc. # 3), challenging his conviction in Denver County District Court case
1987CR1542. He has paid the filing fee. (Doc. # 5). Following an order to cure
deficiencies, Applicant filed an Amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (Doc. # 6), on November 28, 2017.
On November 30, 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
1
remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) if they intended to raise either or both
of those defenses in this action. (Doc. # 7). After receiving an extension of time,
Respondents file their Pre-Answer Response (Doc. # 13) on January 18, 2018, arguing
that the Application appeared timely but that Claims One, Two, Four, Five, Seven,
Eight, Nine and Ten were procedurally defaulted, Claims One and Two were moot, and
Claims Three, Six, and Nine failed to present a cognizable habeas claim. Mr. Hardin
filed a Reply (Doc. # 16) on March 8, 2018, and a Supplement to the Reply (Doc. # 17)
on March 30, 3018.
The Court must construe the documents filed by Mr. Hardin 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 action in part.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In 1988, Mr. Hardin was convicted by a jury of two counts of aggravated robbery,
two counts of felony murder, and two counts of murder after deliberation. He was
sentenced to consecutive terms of sixteen years for each aggravated robbery conviction
and life imprisonment for each felony murder.
The Colorado Court of Appeals provides the following account of the lengthy
procedural background in this case:
Hardin was accused of robbing three men, Isaac Fisher,
Victor Irving, and Lloyd Rhodes, and of killing two of the
men, Fisher and Irving. The prosecution charged Hardin
with one count of aggravated robbery for the robbery of all
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three men and with two counts each of felony murder and
murder after deliberation with respect to the killings of Fisher
and Irving. When Hardin’s 1988 trial concluded, the jury
found him guilty by separate verdict forms of two counts of
aggravated robbery regarding Irving and Rhodes and two
counts each of felony murder and murder after deliberation
with respect to Fisher and Irving. The jury acquitted Hardin
of the aggravated robbery count with respect to Fisher.
The trial court entered a judgment of conviction and
sentenced Hardin to consecutive terms of imprisonment of
sixteen years for each aggravated robbery conviction and life
for each felony murder conviction. It did not sentence Hardin
on the murder after deliberation convictions.
Several months after the trial, Hardin filed a notice of appeal
regarding the judgment of conviction. Soon after, he
requested and was granted a limited remand to pursue an
ineffective assistance claim, pursuant to Crim. P. 35(c),
concerning his trial counsel. To avoid a conflict of interest,
the public defender’s office was allowed to withdraw from the
postconviction proceedings and the appeal. In granting the
remand in 1991, a division of this court ordered that the
postconviction proceedings “be done with all due speed.”
Over the next six years, the postconviction court appointed a
succession of private attorneys to represent Hardin; they all
withdrew before resolution of the proceedings. The
postconviction court repeatedly set the matter, only to later
vacate the settings. Hardin repeatedly expressed frustration
with his legal representation and with his appointed
attorneys’ lack of action in the postconviction court and in
this court.
A division of this court eventually vacated the limited remand
and decided Hardin’s direct appeal in 1997, about ten years
after Hardin committed the underlying crimes. See People v.
Hardin, (Colo. App. No. 88CA1898, Dec. 18, 1997) (not
published pursuant to C.A.R. 35(f)) (Hardin I). That division
affirmed Hardin’s convictions, but it remanded with
instructions for the trial court to vacate the felony murder
conviction concerning Irving’s death, enter a judgment of
conviction for the count of murder after deliberation
concerning Irving’s death, and resentence Hardin
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accordingly. Id. That division also concluded that Hardin’s
ineffective assistance of counsel claims should be
considered in a postconviction proceeding. Id.
Hardin later filed a pro se Crim. P. 35(c) motion raising
numerous claims, including ineffective assistance of counsel.
The postconviction court denied the motion in 1999 without
holding a hearing, appointing counsel, or resentencing
Hardin in accordance with the remand instructions. Hardin
appealed the 1999 order denying his postconviction motion.
In December 2000, a division of this court reversed the order
and remanded with instructions to hold further proceedings
on Hardin’s postconviction claims and to comply with the
1997 remand instructions regarding resentencing. See
People v. Hardin, (Colo. App. No. 99CA2405, Dec. 21, 2000)
(not published pursuant to C.A.R. 35(f)).
After the remand, the postconviction court appointed another
attorney to represent Hardin in April 2001. Over the next
four years, and after the postconviction court allowed several
extensions of time to supplement Hardin’s pro se Crim. P.
35(c) motion, Hardin’s appointed counsel failed to file any
supplement. Meanwhile, Hardin made numerous pro se
filings expressing his frustration with his attorney’s inaction
and his desire to obtain adequate counsel. In response to
the inactivity in these proceedings, the postconviction court
appointed Hardin’s current attorney in February 2005.
Almost eight years later, in December 2012 – about twentyfour years after trial and about twelve years after Hardin filed
his original Crim. P. 35(c) motion – the third and final trial
judge to preside over this case since the 2000 remand
issued an order mandating that Hardin’s postconviction
proceedings “get moving.” Thereafter, Hardin’s attorney filed
two supplemental briefs in support of his motion for
postconviction relief. The postconviction court held an
evidentiary hearing over three days on the matter. After the
hearing, the postconviction court denied Hardin’s motion. In
denying the motion, the postconviction court stated that the
twelve-year delay in the postconviction proceedings “did not
amount to a remedial due process violation . . . and, perhaps
most importantly, did not legally prejudice [Hardin].”
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(Doc. # 13-9 at 2-6) (People v. Hardin, No. 14CA0710 (Colo. App. Dec. 1, 2016)
(published as People v. Hardin, 2016 COA 175) (Hardin III).
Following the trial court’s lengthy written order, issued on February 26, 2014,
denying Mr. Hardin’s postconviction claims, (Doc. # 13-7), he appealed the denial, (Doc.
# 13-8). The Colorado Court of Appeals confirmed the denial of his postconviction
claims on December 1, 2016. (Doc. # 13-9). The Colorado Supreme Court denied
certiorari review on October 16, 2017. (Doc. # 13-10 and 13-11).
Mr. Hardin filed the instant federal habeas corpus action on November 2, 2017.
(Doc. # 1). In the Amended Application, Mr. Hardin asserts the following ten claims for
relief:
1. Mr. Hardin’s convictions for felony murder and
aggravated robbery are invalid because the jury failed to
convict him of the charged aggravated robbery which
served as the underlying felony for the aggravated
murder. This violated the Fifth, Sixth, Eighth, and
Fourteenth Amendments of the United States
Constitution;
2. It was improper for Mr. Hardin to be convicted and
sentenced for aggravated robbery when that aggravated
robbery served as the predicate felony for a felony
murder conviction;
3. The over eight year delay in adjudicating Mr. Hardin’s
direct appeal violated his rights under the due process
and equal protection clauses of the United States
Constitution;
4. The trial court’s “acquittal first” instructions in Mr. Hardin’s
case interfered with the jury’s ability to consider lesser
included offenses thus depriving Mr. Hardin of his Fifth,
Sixth and Fourteenth Amendment rights under the United
States Constitution;
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5. The trial court erred in failing to provide testimony
requested by the jury during its deliberations thus
violating Mr. Hardin’s rights as guaranteed by the United
States Constitution;
6. The Court’s over 12-year delay in resolving Mr. Hardin’s
Crim. P. 35(c) motion violated Mr. Hardin’s rights under
the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution, and the corresponding
Colorado Constitution;
7. The denial of Mr. Hardin’s right to counsel of choice
violated the Sixth and Fourteenth Amendments of the
United States Constitution and clearly established federal
law;
8. Mr. Hardin’s appellate counsel rendered ineffective
assistance of counsel by failing to raise ‘counsel of
choice’ on direct appeal as this clearly violated his
constitutional rights and clearly established federal law;
9. Counsel was ineffective at Mr. Hardin’s trial thus violating
Mr. Hardin’s constitutional rights pursuant to the Sixth
and Fourteenth Amendments;
10. Delay in the re-sentencing of Mr. Hardin of 15 years form
the Court of Appeals mandate in 88CA1898 requiring resentencing issued in 1998 following denial of a petition
for certiorari to the Colorado Supreme Court,
commensurate with the delay in re-sentencing of Mr.
Hardin of 12 years from the Court of Appeals mandate in
99CA2405 requiring re-sentencing in 2001 violates due
process, speedy trial rights, and amounts to cruel and
unusual punishment.
(Doc. # 6).
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). (Doc. # 13 at 11 & 13-14).
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III.
EXHAUSTION OF STATE REMEDIES
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 (1999); Dever v. Kan. 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). 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 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). 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). 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).
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Finally, “[t]he exhaustion requirement is not one to be overlooked lightly.”
Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th 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 (10th Cir. 1992). A blanket statement that state remedies have been
exhausted does not satisfy this burden. See Olson v. McKune, 9 F.3d 95 (10th Cir.
1993); see also Fuller v. Baird, 306 F. App’x 430, 431 n.3 (10th Cir. 2009) (stating a bald
assertion unsupported by court records is insufficient to demonstrate state remedies are
exhausted).
A. Claim One
Respondents argue that claim one is procedurally defaulted and part of it is moot.
In claim one, Applicant argues that his convictions for the aggravated robberies and
felony murders are invalid because the jury failed to convict him of the aggravated
robbery against Fisher. Specifically, Applicant maintains that because the three
aggravated robberies were listed in one count, he was charged with only one crime and
cannot be convicted because the jury found him not guilty of robbing Fisher. He further
argues that to the extent the three separate aggravated robberies were charged in one
count, the count was defective because it was duplicitous. As such, he argues his
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendment were violated.
According to Respondents, Mr. Hardin raised this claim in his opening brief on
direct appeal to the Colorado Court of Appeals, “relying on Colorado law and making
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only conclusory reference to ‘the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution.’” (Doc. # 13 at 17).
The Court has reviewed Applicant’s opening brief on appeal, in which he
addresses this claim. See Doc. # 13-1 at 17-20. In the brief, Applicant relied on state
law as the basis for Claim One. Mr. Hardin specifically argued that Colorado law was
violated; in the “Summary of the Argument” he stated: “The State of Colorado charged
all of the aggravated robbery offenses in the same count of the Information in violation
of Colorado law.” (Id. at 17 (emphasis added)). Further, in the brief, Applicant relied
only on state caselaw and failed to cite any federal caselaw to support the claim. He
also cited to the Colorado Criminal Code and stated that “[t]he law in Colorado is quite
clear” and that “[t]he district attorney violated the mandatory proscription of Colorado
law by charging each of Appellant’s aggravated robbery offenses in the same count in
the information.” (Id. at 18 & 19). The title of the claim presented to the Colorado Court
of Appeals also did not include any reference to a federal constitutional right. The only
mention of the federal constitution is the very last paragraph, which states: “Applicant’s
convictions violate the Fifth, Sixth, Eighth and Fourteenth Amendments of the United
States Constitution . . . .” (Doc. # 13-1 at 20).
It is clear that claim one was not fairly presented to the Colorado Court of
Appeals as a federal constitutional claim. Therefore, claim one is unexhausted.
Respondents also make a short conclusory statement that any challenge to the
conviction for felony murder is moot “as discussed below in Claim Two.” (Doc. # 13 at
18). The Court disagrees. Apparently Respondents believe that because one of the
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felony murder convictions was vacated following remand from the Colorado Court of
Appeals, any claim relating to felony murder is moot. However, Mr. Hardin was
convicted of two counts of felony murder and originally sentenced on two counts.
Therefore, the felony murder conviction and sentence as it relates to Mr. Fisher still
stands. As such, claim one is not moot.
B. Claim Two
Respondents argue that claim two is procedurally defaulted and moot. In claim
two, Applicant alleges that it was improper for him to be convicted and sentenced for
aggravated robbery when the aggravated robbery served as the predicate felony for a
felony murder conviction, which violated the Fifth and Fourteenth Amendments to the
United States Constitution. According to Respondents, Mr. Hardin raised this claim in
his opening brief on direct appeal to the Colorado Court of Appeals, “making scant
reference to ‘the Fifth and Fourteenth Amendments to the United States Constitution.’”
(Doc. # 13 at 19). Additionally, Respondents argue that the Colorado Court of Appeals
resolved this claim by remanding to the trial court with instructions to vacate the
conviction for felony murder of Mr. Irving and enter in its place a conviction for murder
after-deliberation. Those instructions were carried out by the postconviction court
(albeit many years later) and, therefore, according to Respondents, this claim is moot.
The Court agrees with Respondent that this claim is moot. Although Mr. Hardin
was originally sentenced for the aggravated robbery of Mr. Irving, as well as the felony
murder of Mr. Irving, the Colorado Court of Appeals remanded the case to the trial
court on December 18, 1997, and instructed that the felony murder conviction be
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vacated and the conviction of murder after-deliberation be entered. (Doc. # 13-2 at 3-5)
(“The trial court should therefore vacate the felony murder conviction, enter in its place a
judgment of conviction for murder after deliberation, and resentence defendant
accordingly.”). Although it took many years and an additional remand from the
Colorado Court of Appeals with the same instructions (Doc. # 13-6 at 5), Mr. Hardin was
finally resentenced on February 26, 2014, as the Colorado Court of Appeals had
directed. (Doc. # 13-7 at 25) (“Pursuant to the remand order in Hardin I, the conviction
and sentence on Count 3 – the felony murder count as to Mr. Irving – is HEREBY
VACATED, and that Count is HEREBY DISMISSED. In its place a conviction HEREBY
ENTERS on Count 5 – first degree murder after deliberation as to Mr. Irving – and
Defendant is HEREBY SENTENCED on that County 5 to the mandatory life without
parole, consecutive to the other four sentences.”). Therefore, Applicant’s claim that it
was improper to be convicted and sentenced for aggravated robbery when the robbery
served as the predicate felony for a felony murder conviction is moot because his felony
murder conviction of Mr. Irving has been vacated. Although his felony murder
conviction of Mr. Fisher still stands, he was not convicted of an underlying aggravated
robbery of Mr. Fisher. Accordingly, Applicant is not entitled to federal habeas relief for
claim two because that claim is moot.
C. Claim Three
Respondents argue that claim three is not a cognizable habeas claim. In claim
three, Applicant argues that his due process and equal protection rights were violated
by the over eight year delay in adjudicating his direct appeal. (Doc. # 6 at 21). This
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claim was fairly presented to the Colorado Court of Appeals. (Doc. # 13-1 at 23-26).
According to Respondents, an inordinate delay in state appellate proceedings does not
constitute a cognizable federal claim. The Court disagrees with Respondents.
According to the Tenth Circuit, the Due Process Clause requires “that the State
afford the defendant a timely appeal, for an appeal that is inordinately delayed is as
much a ‘meaningless ritual’, as an appeal that is adjudicated without the benefit of
effective counsel or a transcript of the trial court proceedings.” Harris v. Champion, 15
F.3d 1538, 1558 (10th Cir. 1994). The Court determines that claim three is a cognizable
habeas claim and it has been exhausted.
D. Claim Four
Respondents argue that claim four is procedurally defaulted. In claim four,
Applicant argues that the trial court’s “acquittal first” instructions interfered with the jury’s
ability to consider lesser included offenses, which violated his Fifth, Sixth, and
Fourteenth Amendment rights. Respondents assert that although Mr. Hardin raised
this claim in his opening brief on direct appeal to the Colorado Court of Appeals, he did
not fairly present it as a federal constitutional claim and instead only made conclusory
references to broad federal rights.
The Court has reviewed Mr. Hardin’s opening brief on direct appeal. See Doc. #
13-1 at 29-32. In the brief, this claim was titled: :”The Trial Court’s ‘Acquittal First’
Instructions In Appellant’s Case Interfered With The Jury’s Ability To Consider Lesser
Included Offenses.” (Id. at 29). The only reference to federal constitutional rights was
included in the short “Summary of the Argument,” which stated: “It was improper to
12
require the jury to acquit Appellant of the charged higher offenses before it could
consider the lesser included offenses. Such an instruction violates Appellant’s rights as
guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and the corresponding provisions of the Colorado Constitution.” (Id.) The
argument section of his brief only included citations to state law cases, and included
cases from numerous states other than Colorado as well. The argument in the brief
encouraged the Court to “adopt the reasoning of the Ohio Supreme Court and the listed
jurisdictions.” (Id. at 32). There was no other mention – either implicitly or explicitly-- of
federal constitutional violations. Thus, the single conclusory reference to federal
constitutional rights did not fairly present the claim as a federal constitutional claim. As
such, claim four is unexhausted.
E. Claim Five
Likewise, Respondents argue that claim five is procedurally defaulted. In claim
five, Applicant argues that the trial court erred in failing to provide testimony requested
by the jury during its deliberations, which violated Mr. Hardin’s constitutional rights.
Respondents assert that although Mr. Hardin raised this claim in his opening brief on
direct appeal to the Colorado Court of Appeals, he only made conclusory references to
broad federal rights.
The Court has reviewed Mr. Hardin’s opening brief on direct appeal. See Doc. #
13-1 at 33-35. In the brief, this claim was titled: “The Trail Court Erred In Failing To
Provide Testimony Requested By The Jury During Its Deliberations.” (Id. at 33). In the
“Summary of the Argument,” Mr. Hardin argued that his rights under the “United States
13
and Colorado Constitutions” were violated. (Id.)
In arguing his claim, Mr. Hardin cited to Colorado case law as well as federal
case law of several different federal Circuit courts. In conclusion, he argued that he was
deprived of his right to “a fair jury trial as provided by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution . . . .” (Id.)
Mr. Hardin cited to federal case law and mentioned federal constitutional rights
numerous times. Thus, claim five is exhausted.
F. Claim Six
Respondents argue that claim six is not a cognizable habeas claim. In claim six,
Applicant argues that the over 12-year delay in resolving his Crim. P. 35(c) motion
violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
Respondents correctly observe that there is no federal due process right to state
collateral review. (See Doc. # 13 at 22 (citing Lackawanna County Dist. Att’y v. Coss,
532 U.S. 394, 402-03 (2001) (citing Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)).
Thus, 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.” Sellers v. Ward, 135 F.3d 1333, 1339
th
th
(10 Cir. 1998); see also Steele v. Young, 11 F.3d 1518, 1524 (10 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”). As such, federal courts have declined to find federal due process
violations arising from delays in state collateral proceedings. (Id. at 22-23 (citing Body v.
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Watkins, 51 F. App’x 807, 809-11 (10th Cir. 2002); additional citations omitted)).
Therefore, claim six is not a cognizable habeas claim and it will be dismissed.
G. Claim Seven
Respondents argue that claim seven is procedurally defaulted. In claim seven,
Applicant argues that the denial of his right to counsel of choice violated his Sixth and
Fourteenth Amendment rights. According to Respondents, this claim was raised and
resolved in Mr. Hardin’s postconviction proceedings, but it was never raised on appeal.
The Court has reviewed Mr. Hardin’s postconviction proceedings and determined
that this claim was not presented on appeal of his postconviction motion. (Doc. # 13-8).
Therefore, the claim is unexhausted.
H. Claim Eight
Respondents argue that claim eight is procedurally defaulted. Claim eight
asserts that Mr. Hardin’s appellate counsel rendered ineffective assistance of counsel
by failing to raise the “counsel of choice” claim on direct appeal. According to
Respondents, Mr. Hardin never presented a claim to the Colorado courts regarding the
alleged ineffectiveness of his appellate counsel. The Court agrees with Respondents.
This claim was not presented to the Colorado courts and, therefore, claim eight is
unexhausted.
I. Claim Nine
Respondents argue that claim nine, which asserts multiple claims of ineffective
assistance of counsel, was presented and resolved in Mr. Hardin’s postconviction
motion, but the claim was never raised on appeal of the postconviction proceedings.
15
According to Respondents, on appeal from the postconviction proceedings, Mr. Hardin
instead presented a procedural claim pursuant to Colorado Crim. P. 35(c)(3)(V) that the
postconviction court erred by making insufficient findings and conclusions for one of his
ineffective assistance of trial counsel claims, that his trial counsel failed to object to the
aggravated robbery count. (Doc. # 13-8 at 34-37). The Colorado Court of Appeals
rejected his procedural claim. (Doc. # 13-9 at 17).
Respondents argue that because Mr. Hardin raised his claim as a violation of
state procedural law, he failed to raise a federal question. The Court agrees that the
claim presented during his postconviction appeal was a state procedural claim. Alleged
error by the state courts in the state postconviction process is not a cognizable habeas
corpus claim. See e.g., Shipley v. Oklahoma, 313 F.3d 1249, 1251 (10th Cir. 2002).
In addition to the ineffective assistance claim presented during the postconviction
proceedings, the Court notes that Mr. Hardin also presented an ineffective assistance of
counsel claim on direct appeal. (Doc. # 13-1 at 36-39). In his opening brief on direct
appeal, he specifically alleged he received ineffective assistance of trial counsel
because his counsel: (A) failed to object to indictment which charged all aggravated
robberies in one count; (B) failed to object to the sentences for felony murder since Mr.
Hardin was acquitted of the underlying felony; (C) failed to object to Mr. Hardin’s
sentences for aggravated robbery since he was acquitted of aggravated robbery; (D)
failed to object to the convictions and sentences on both the felony murder and the
underlying felony; (E) failed to object to the trial court’s ‘acquittal first’ instruction; (F)
failed to object when the trial court refused to provide Lloyd Rhodes testimony to the
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jury upon its request. (Id.) These same allegations of ineffective assistance of counsel
are included in claim nine of the habeas application. (Doc. # 6 at 41). However, the
Colorado Court of Appeals concluded that an assertion of ineffective assistance of
counsel “can be better resolved in a post-conviction proceeding.” (Doc. # 13-2 at 11).
Therefore, the Colorado Court of Appeals failed to address the claim on direct appeal.
(Id.) Applicant failed to include these specific instances of ineffective assistance of
claim in his postconviction motion.
Therefore, claim nine is unexhausted.
J. Claim Ten
Respondents argue that claim ten is procedurally defaulted. In claim ten,
Applicant argues that the 15-year delay in re-sentencing following the Court of Appeals
mandate issued in 1998, as well as the 12-year delay in re-sentencing from the Court of
Appeals mandate issued in 2001, violated his due process and speedy trial rights and
amounted to cruel and unusual punishment. According to Respondents, Mr. Hardin
never presented this claim to the Colorado courts. The Court agrees. Claim ten was
not presented to the Colorado courts and, therefore, is unexhausted.
IV.
PROCEDURAL DEFAULT
The Court may not dismiss the unexhausted claims for failure to exhaust state
remedies if the applicant no longer has an adequate and effective state remedy
available to him. See Castille, 489 U.S. at 351. Mr. Hardin argues that if the Court
determines some of his claims are unexhausted, he should be allowed to return to state
court to exhaust them. According to Mr. Hardin, he still has a right to pursue relief
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pursuant to Crim. P. Rule 35(a) and 35(c). Mr. Hardin asserts that he can raise claims
regarding appellate and postconviction counsel’s failure to present his appellate claims
as federal constitutional claims and for failing to protect and preserve the claims that
were submitted – or should have been presented -- in his postconviction petition.
However, it is clear that Mr. Hardin may not return to state court to pursue his
unexhausted claims. Rules 35(c)(3)(VI) and (VII) of the Colorado Rules of Criminal
Procedure provide that, with limited exceptions not applicable to Mr. Hardin, the state
court must dismiss any claim raised and resolved in a prior appeal or postconviction
proceeding as well as any claim that could have been presented in a prior appeal or
postconviction proceeding.
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
th
justice.” Jackson v. Shanks, 143 F.3d 1313, 1317 (10 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).
“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 is “applied evenhandedly in the
vast majority of cases.” Id. Application of this procedural default rule in the habeas
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corpus context is based on comity and federalism concerns. See Coleman, 501 U.S. at
730. 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 to
overcome a procedural default. See Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir.
1994).
Mr. Hardin fails to demonstrate that Rule 35(c)(3)(VI) and (VII) of the Colorado
Rules of Criminal Procedure are not independent and adequate state procedural rules.
In any event, the court finds that Rule 35(c)(3)(VI) and (VII) are independent because
the rules relies on state rather than federal law. The rules also are adequate because
they are applied evenhandedly by Colorado courts. See, e.g., People v. Vondra, 240
P.3d 493, 494 (Colo. App. 2010) (applying Crim. P. Rules 35(c)(3)(VI) and (VII) to reject
claims that were or could have been raised in a prior proceeding). Therefore, Mr.
Hardin’s unexhausted claims are procedurally defaulted and cannot be considered
unless he 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. Hardin 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. Hardin can demonstrate
19
cause, he also must show “actual prejudice as a result of the alleged violation of federal
law.” Coleman, 501 U.S. at 750 (1991).
In response, Mr. Hardin argues that he relied on his court-appointed counsel,
both during direct appeal and the postconviction proceedings, to preserve and exhaust
his federal claims. Mr. Hardin argues that he can demonstrate good cause for the
procedural default of his unexhausted claims because he received ineffective
assistance of counsel during his direct appeal and his postconviction proceedings.
(Doc. # 17 at 2). According to Mr. Hardin, his appointed counsel on direct appeal failed
to raise all of his claims on appeal and failed to fairly present them as federal
constitutional claims. Therefore, Mr. Hardin requests that if the court determines some
claims are unexhausted, that he be allowed to return to state court to exhaust the
claims.
Mr. Hardin is correct that ineffective assistance of direct appeal counsel can
constitute cause to excuse a procedural default in some circumstances. See Edwards
v. Carpenter, 529 U.S. 446, 451‑52 (2000). However, Mr. Hardin cannot demonstrate
cause for a procedural default premised on ineffective assistance of direct appeal
counsel unless the ineffective assistance of counsel claim first is raised as an
independent constitutional claim in state court. See id. Mr. Hardin fails to demonstrate
that he has fairly presented to the state courts a claim that direct appeal counsel was
ineffective by failing to raise certain claims on appeal. Despite Mr. Hardin’s arguments
to the contrary, any attempt to return to state court to pursue a claim of ineffective
assistance of direct appeal counsel would be denied pursuant to Colo. Crim. P. Rules
20
35(c)(3)(VI) and (VII) (Colorado procedural rules reject claims that were or could have
been raised in a prior proceeding). Therefore, Mr. Hardin cannot rely on any alleged
ineffectiveness by direct appeal counsel to demonstrate cause for his procedural default
of his unexhausted claims.
Next, Mr. Hardin argues that he received ineffective assistance of counsel during
his postconviction proceedings because counsel failed to properly assert and exhaust
all of his postconviction claims. In some circumstances, an applicant’s procedural
default of an ineffective assistance of trial counsel claim may be excused pursuant to
the holding in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309 (2012). In Martinez, the
Supreme Court held that:
Id. at 17.
Where, under state law, claims of ineffective assistance of
trial counsel must be raised in an initial ‑review collateral
proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial‑review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
However, the holding in Martinez is not applicable to the majority of Mr. Hardin’s
claims. First, Martinez only applies to ineffective assistance of trial counsel claims.
Therefore, Martinez does not apply to any of Mr. Hardin’s other claims.
Next, to the extent Mr. Hardin argues his postconviction appellate counsel was
ineffective for not including his ineffective assistance of trial counsel claims (that were
included in his initial postconviction motion) on appeal, such arguments fail. Martinez is
not applicable in such situations. Prior to Martinez, the Supreme Court held that an
attorney’s errors on appeal from an initial‑review collateral proceeding did not qualify as
21
cause for a procedural default, see Coleman, 501 U.S. at 757, and the Supreme Court
in Martinez reaffirmed that holding:
The rule of Coleman governs in all but the limited
circumstances recognized here. The holding in this case
does not concern attorney errors in other kinds of
proceedings, including appeals from initial‑review collateral
proceedings, second or successive collateral proceedings,
and petitions for discretionary review in a State’s appellate
courts. It does not extend to attorney errors in any
proceeding beyond the first occasion the State allows a
prisoner to raise a claim of ineffective assistance at trial,
even though that initial‑review collateral proceeding may be
deficient for other reasons.
Martinez, 132 S. Ct. at 1320 (emphasis added, citation omitted). Therefore, Mr.
Hardin cannot rely on Martinez to demonstrate cause for his procedural default based
on the alleged ineffectiveness of his post-conviction appellate counsel.
Mr. Hardin also alleges he received ineffective assistance of counsel from his
initial-review collateral proceeding counsel. Mr. Hardin was represented by counsel
during his initial-review collateral proceeding and his counsel did present an ineffective
assistance of counsel claim to the district court. However, it appears his postconviction
counsel failed to assert an ineffective assistance of trial counsel claim based on
numerous failures of counsel to object. Applicant had initially included such a claim in
his opening brief on direct appeal and the claim is included as part of claim nine in this
habeas action.
Therefore, if Mr. Hardin’s postconviction counsel provided ineffective assistance
of counsel by failing to assert all of the ineffective assistance of trial counsel claims and
such claims are “substantial,” the procedural default will be excused. The Court cannot
22
make the determination of whether Mr. Hardin received ineffective postconviction
counsel and whether his ineffective assistance of counsel claims are substantial without
the benefit of the record of Applicant’s state criminal proceeding. Accordingly, the Court
will defer ruling on whether Mr. Hardin has demonstrated cause for his procedural
default of claim nine, his ineffective assistance of counsel claims, pending the Court’s
receipt of the state court record.
However, as for his other claims (besides claim nine), Mr. Hardin has failed to
demonstrate good cause for the procedural default of those claims. Even when a claim
is procedurally defaulted and the applicant cannot establish cause and prejudice to
excuse the default, the federal habeas court may still address the merits of the claim if
not doing so “will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at
750. A "fundamental miscarriage of justice," means that "a constitutional violation has
probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at
495-96. That standard requires an applicant to "support his allegations of constitutional
error with new reliable evidence--whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence--that was not presented
at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). As
a result, fundamental miscarriages of justice are "extremely rare." Id. The habeas
applicant bears the burden to present new evidence so persuasive that "more likely than
not, in light of the new evidence, no reasonable juror would find him guilty beyond a
reasonable doubt." House v. Bell, 126 S. Ct. 2064, 2077, 165 L. Ed. 2d 1 (2006).
Mr. Hardin fails to allege facts that demonstrate a fundamental miscarriage of
23
justice that would excuse his procedural default of his claims. See Schlup v. Delo, 513
U.S. 298, 324 (1995) (stating that a credible claim of actual innocence requires a
petitioner “to support his allegations of constitutional error with new reliable
evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence--that was not presented at trial”). For these
reasons, claims one, four, seven, eight and ten are procedurally barred and will be
dismissed.
V.
CONCLUSION
In summary, the Court finds that claims three and five are exhausted. The Court
will dismiss claims one, four, seven, eight, and ten as procedurally barred. Claim six will
be dismissed for failing to state a cognizable habeas claim and claim two will be
dismissed as moot. Finally, the Court will defer ruling on whether claim nine is
procedurally defaulted. Accordingly, it is
ORDERED that claims one, four, seven, eight, and ten in the Application are
dismissed as procedurally barred. It is
FURTHER ORDERED that claim two is dismissed as moot. It is
FURTHER ORDERED that claim six is dismissed as failing to state a cognizable
habeas claim. 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 claims three and five, and further addresses whether the
procedurally defaulted ineffective assistance of counsel allegations in claim nine have
24
substantial merit and whether Mr. Hardin received ineffective assistance of counsel
during the initial-review collateral proceeding pursuant to Martinez v. Ryan. It is
FURTHER ORDERED that within thirty days of the filing of the answer Applicant
may file a reply, if he desires.
DATED: May 4, 2018
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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