Reid v. Long

Filing 34

ORDER TO DISMISS IN PART AND FOR ANSWER by Chief Judge Philip A. Brimmer on 10/13/2020. ORDERED that within thirty days Respondent is directed to file an answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases that f ully addresses the merits of the remaining claims. ORDERED that within thirty days of the filing of the answer Applicant may file a reply, if he desires. ORDERED that the Prisoner Motion for Appointment of Counsel 27 is DENIED. (sphil, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 20-cv-00181-PAB
BILLY E. REID,
Applicant,
v.
WARDEN JEFF LONG, Sterling Correctional, and
PHIL WEISER, Attorney General of the State of Colorado,
Respondents.

ORDER TO DISMISS IN PART AND FOR ANSWER

Applicant, Billy E. Reid, is a prisoner in the custody of the Colorado Department
of Corrections. Mr. Reid has filed pro se a second amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254, Docket No. 15, challenging the validity of
his convictions and sentences in the District Court for Jefferson County, Colorado, case
number 2006CR1797. On May 18, 2020, 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 July 24, 2020, Respondents filed a
Pre-Answer Response, Docket No. 25, arguing that the second amended application
should be dismissed in part. On August 13, 2020, Mr. Reid filed Applicant’s Reply to

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Respondents’ Pre-Answer Brief, Docket No. 26. On August 31, 2020, Mr. Reid filed a
Prisoner Motion for Appointment of Counsel, Docket No. 27.
The Court must construe the second amended application and other papers filed
by Mr. Reid 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
The following background information is taken from the opinion of the Colorado
Court of Appeals on Mr. Reid’s direct appeal.
On February 14, 1988, police found the body of
twenty-three-year-old Q.S., an African-American woman,
behind a dumpster in east Denver. Q.S. was clothed in a
skirt, a top, and a jacket, but her underwear and pantyhose
had been pulled down. There was evidence of anal sex, and
forensic examination indicated she had sustained blunt force
trauma to her neck and a hyoid bone fracture, consistent
with strangulation.
More than a year later, on March 24, 1989, police
found the partially decomposed and mummified body of L.K.,
a thirty-three-year-old African-American woman, on Lookout
Mountain. Forensic examination established that she had
fractures to the hyoid bone and the cartilage in her neck.
On October 14, 1989, police found the body of L.W.,
an African-American woman, near Clear Creek. She was
thirty years old at the time of her death. L.W. was clothed in
a sweater and jeans, but her jeans and underwear had been
pulled down to her mid-thighs. An extension cord, a belt, and
a tube sock were found wrapped around her neck, and a pair
of pantyhose was clutched in her left hand. An autopsy
revealed that L.W. had sustained blunt force trauma to her
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head, mouth, neck, chest, and lower back. Her hyoid bone
was intact, but the cartilage surrounding it had been
damaged.
Forensic examiners determined L.W. had died as a
result of asphyxiation consistent with strangulation. The
autopsy also revealed the presence of several stones in
L.W.’s vaginal vault, the placement of which was consistent
with manual insertion. In addition, semen was found in
L.W.’s anal cavity. However, DNA analysis of the semen in
1990 failed to yield conclusive results.
Fifteen years later, cold case Investigator Moore
reopened the L.W. and L.K. cases and submitted the
evidence collected during investigation of L.W.’s death for
analysis using modern technology. In addition to the semen
found in L.W.’s anal cavity, a semen stain was discovered on
the extension cord, and trace DNA was found at both ends
of the extension cord and the belt. Technicians developed a
DNA profile and performed a database comparison of that
profile to known DNA profiles, which pointed to defendant.
On May 22, 2006, Moore interviewed defendant, who
was incarcerated in the Denver County Jail (DCJ) on traffic
matters. When shown photographs of L.W. and L.K.,
defendant acknowledged that it was possible that he had
had sex with them, but stated that he did not recognize them
and did not remember if he had ever known them. During the
interview, Moore did not use L.W.’s last name, discuss the
details of any of the crime scenes, or mention Q.S. at all. At
the conclusion of the interview, Moore informed defendant
that he would be charged with homicide, and returned
defendant to the DCJ.
The next day, Kenneth Thomas, a DCJ inmate,
telephoned Investigator Moore and stated that he had
information regarding the L.W. murder from 1989. In a series
of interviews, Thomas relayed information to her concerning
conversations he had with defendant while both were in the
DCJ that implicated defendant in the deaths of L.W. and L.K.
According to Thomas, defendant said that he had strangled
L.W. with his hands at a motel because L.W. had stolen
drugs from him, and that he had both anal and vaginal sex
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with L.W. on the day she was killed. Thomas also furnished
police with defendant’s handwritten notes, which identified
L.K. and Q.S. by name and L.W. by her initials.
Unaware of who Q.S. was, Investigator Moore had
Detective Grimes contact and interview Thomas about her
death. During that interview, Thomas reported defendant
said that he used his hands to kill all three women because
they had big mouths and that “it was over dope.”
Docket No. 25-4 at pp.2-5. Evidence regarding Q.S.’s homicide was admitted at Mr.
Reid’s trial for the limited purposes of establishing identity and a common plan or
scheme, but he was not charged in connection with her death. Thomas testified at trial
that he could not remember speaking to or even meeting Mr. Reid, Investigator Moore,
or Detective Grimes, but he was impeached with his prior inconsistent statements
through the testimony of Investigator Moore and Detective Grimes. Mr. Reid was
convicted by a jury on two counts of first degree murder after deliberation as to L.K. and
L.W., one count of first degree felony murder as to L.W., and one count of first degree
aggravated sexual assault by force or violence as to L.W.
On November 6, 2014, the Colorado Court of Appeals affirmed in part, vacated in
part, and remanded with directions. See Docket No. 25-4.
We vacate defendant’s judgment of conviction for first
degree murder after deliberation with regard to L.K. and
direct the trial court on remand to enter a judgment of
conviction for second degree murder and to resentence
defendant on that count. We also vacate defendant’s
conviction for first degree sexual assault and remand for
correction of the mittimus to delete the conviction and
sentence on that count. In all other respects, the judgment of
conviction is affirmed.
Id. at p.101. On January 19, 2016, the Colorado Supreme Court denied Mr. Reid’s
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petition for certiorari review on direct appeal. See Docket No. 25-7.
In January 2017, Mr. Reid filed in the trial court a postconviction motion pursuant
to Rule 35(a) of the Colorado Rules of Criminal Procedure. See Docket No. 25-8. The
trial court denied the motion and, on February 14, 2019, the Colorado Court of Appeals
affirmed the trial court’s order denying the Rule 35(a) motion. See Docket No. 25-11. On
November 12, 2019, the Colorado Supreme Court denied Mr. Reid’s petition for
certiorari review in the postconviction proceedings. See Docket No. 25-12.
Mr. Reid asserts five claims in the second amended application, including two
claims with subparts. In claim 1, he contends his rights under the United States
Constitution and Colorado state law were violated because (a) the jury was not given a
special verdict form to choose between first degree murder after deliberation and felony
murder as to L.W. and (b) he was prosecuted under a charging document that was
invalid because the statute of limitations had run on the predicate offense for the felony
murder charge. In claim 2, he contends he was subjected to double jeopardy in violation
of the state and federal constitutions because he was convicted of both murder after
deliberation and felony murder as to L.W. Mr. Reid contends in claim 3 that his state
and federal constitutional rights were violated when his conviction for first degree
murder of L.K. was amended to second degree murder. In claim 4, he contends his
Fourth and Fourteenth Amendment rights were violated by (a) admission of a videorecording showing him in jail attire and handcuffed and (b) illegal seizure of DNA
evidence from a soda can and cigarette. Finally, Mr. Reid contends in claim 5 that his
state and federal constitutional rights were violated by admission of Investigator Moore’s
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statements during the video-recorded interrogation. Mr. Reid indicates in his reply to the
Pre-Answer Response that several other claims were exhausted in state court and
should be added to this action, but he has not filed a motion to amend or provided a
clear statement of any additional claims he seeks to assert. Therefore, the only claims
properly before the Court are the five claims in the second amended application.
The Court notes initially that, to the extent Mr. Reid is asserting his claims under
Colorado state law in addition to the United States Constitution, the claims may not be
raised in this habeas corpus action because relief under § 2254 is not available for
violations of state law. See Richmond v. Embry, 122 F.3d 866, 870 (10th Cir. 1997).
Instead, a federal habeas court is limited to deciding whether there has been a violation
of “the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S.
62, 68 (1991). Therefore, Mr. Reid’s state law claims must be dismissed.
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
Respondents concede that Mr. Reid has exhausted state remedies for claims 2
and 4(a). However, Respondents argue that claims 1(a), 1(b), 3, 4(b), and 5 were not
fairly presented to the state courts and are not exhausted. 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 petitioner has exhausted state remedies or that no adequate state
remedies are available or effective to protect the petitioner’s rights. See O’Sullivan v.
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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).
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
claim federal.
Baldwin v. Reese, 541 U.S. 27, 32 (2004). 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.

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Henry, 513 U.S. 364, 365-66 (1995) (per curiam).
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 1(a)
Mr. Reid contends in claim 1(a) that the jury was not given a special verdict form
to choose between first degree murder after deliberation and felony murder as to L.W.
Claim 1(a) is similar to claim 2, in which Mr. Reid asserts a violation of double jeopardy
because he was convicted of both murder after deliberation and felony murder as to
L.W. Respondents concede claim 1(a) is exhausted to the extent the claim duplicates
the double jeopardy argument in claim 2. However, to the extent claim 1(a) raises a
separate due process violation, Respondents maintain claim 1(a) was not presented in
either state court appeal and is not exhausted. Mr. Reid apparently concedes that claim
1(a) is duplicative of claim 2 because he now “asks that claims 1, and 2 be consolidated
as one continues [sic] argument for relief.” Docket No. 26 at p.9.
The Court finds that claim 1(a) is exhausted to the extent Mr. Reid is raising the
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same double jeopardy argument presented in claim 2. However, Mr. Reid fails to
demonstrate he has fairly presented a separate due process claim based on the same
facts to the Colorado appellate courts. Therefore, the Court agrees with Respondents
that claim 1(a) is not exhausted to the extent Mr. Reid is presenting a separate due
process argument.
B. Claim 1(b)
Mr. Reid contends in claim 1(b) that he was prosecuted under a charging
document that was invalid because the statute of limitations had run on the predicate
offense for the felony murder charge. Respondents argue claim 1(b) is not exhausted
because Mr. Reid argued in his state court postconviction appeal only that the felony
murder conviction is invalid and not that the charging document was invalid. In addition,
Respondents argue that the claim Mr. Reid raised in his state court postconviction
appeal regarding the validity of the felony murder conviction was presented solely as a
question of state law and not as a federal constitutional claim.
Mr. Reid’s exhaustion argument regarding claim 1(b) is not clear. He apparently
asserts that claim 1(b) was raised in his certiorari petition on direct appeal and is
exhausted, but his argument in the reply relates to the statute of limitations for the
second degree murder conviction as to L.K. and not the felony murder conviction as to
L.W. that is the subject of claim 1(b). See Docket No. 26 at p.9. Mr. Reid fails to
demonstrate claim 1(b) in the second amended application was fairly presented to the
state courts as a federal constitutional claim. Thus, the Court agrees with Respondents
that claim 1(b) is not exhausted.
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C. Claim 3
In claim 3, Mr. Reid contends his constitutional rights were violated when his
conviction for first degree murder of L.K. was amended to second degree murder.
Respondents argue this claim was not fairly presented to the Colorado Court of Appeals
because the claim was raised for the first time on appeal in the state court
postconviction proceedings and was rejected by the Colorado Court of Appeals for that
reason. Mr. Reid counters that claim 3 is exhausted because the claim was raised in his
petition for certiorari review on direct appeal. The Court has reviewed Mr. Reid’s petition
for certiorari review on direct appeal and claim 3 in this action is not included among the
issues presented for review in that petition. See Docket No. 25-6 at pp.2-3. Mr. Reid did
argue in his appellate briefs in the state court postconviction proceedings that his
conviction for second degree murder is invalid because he was not charged with second
degree murder and the jury was not instructed on that offense, see Docket No. 25-9 at
p.8 (opening brief); Docket No. 25-10 at p.9 (reply brief), but the Colorado Court of
Appeals declined to address the arguments raised for the first time on appeal. See
Docket No. 25-11 at p.7. Therefore, the Court agrees with Respondents that claim 3
was not fairy presented to the state courts and is not exhausted.
D. Claim 4(b)
In claim 4(b), Mr. Reid challenges the allegedly illegal seizure of DNA evidence
from a soda can and cigarette. Respondents argue that claim 4(b) was not fairly
presented to the Colorado Court of Appeals because the claim was raised for the first
time on appeal in the state court postconviction proceedings and was rejected by the
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Colorado Court of Appeals for that reason. Mr. Reid makes no argument regarding
claim 4(b), and the Court’s review of the state court briefs and postconviction motion
reveals that claim 4(b) was raised for the first time on appeal in the postconviction
proceedings. Thus, the Court agrees with Respondents that claim 4(b) was not fairly
presented to the state courts and is not exhausted.
E. Claim 5
Finally, Mr. Reid contends in claim 5 that his constitutional rights were violated by
admission of Investigator Moore’s statements during the video-recorded interrogation
expressing certainty that Mr. Reid had murdered L.W. Respondents argue claim 5 is not
exhausted because, although Mr. Reid raised a factually similar state law claim on
direct appeal, he did not present the claim as a federal constitutional claim.
Respondents concede that Mr. Reid made a reference to the “constitutional right to due
process of law” with respect to the claim in his opening brief, but argue that this
reference was not sufficient to fairly present a federal constitutional claim. Mr. Reid
maintains that claim 5 was presented as a federal constitutional claim.
Mr. Reid argued in his opening brief on direct appeal that the trial court erred by
admitting the videotape and the transcript of the interrogation because that evidence
included Investigator Moore’s statements expressing certainty that Mr. Reid had
murdered L.W. Mr. Reid specifically argued that admission of the statements violated
Rule 608(a) of the Colorado Rules of Evidence and that “[t]he admission of such
evidence also results in the deprivation of a defendant’s federal and state constitutional
right to due process of law where it violates principles of fundamental fairness and
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necessarily prevented a fair trial by an impartial jury due to its prejudicial quality.”
Docket No. 25-2 at p.66. Mr. Reid specifically cited the Fifth and Fourteenth
Amendments to the United States Constitution and two United States Supreme Court
cases. As a result, the Court finds that Mr. Reid raised claim 5 on direct appeal as a
federal constitutional claim. See Baldwin, 541 U.S. at 32. Therefore, claim 5 is
exhausted.
IV. PROCEDURAL DEFAULT
The Court may not dismiss the unexhausted claims for failure to exhaust state
remedies if Mr. Reid no longer has an adequate and effective state remedy available to
him. See Castille, 489 U.S. at 351. Respondents contend Mr. Reid no longer has an
adequate and effective state remedy available to him with respect to the unexhausted
claims because the claims either were rejected by the Colorado Court of Appeals on an
independent and adequate state procedural ground or are subject to an anticipatory
procedural default. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (noting
that, even if an unexhausted claim has not actually been raised and rejected by the
state courts on a procedural ground, the claim 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). In particular, Respondents argue that the prohibition
against presenting a claim for the first time on appeal is an independent and adequate
state procedural rule with respect to claims 3 and 4(b). Respondents assert that Rule
35(c)(3)(VII) of the Colorado Rules of Criminal Procedure prevents Mr. Reid from
returning to state court to raise the due process argument in claim 1(a) and claim 1(b) in
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a new postconviction motion. Rule 35(c)(3)(VII) provides that, with limited exceptions
not applicable to Mr. Reid, the state court must dismiss any claim that could have been
presented in a prior appeal or postconviction proceeding. Respondents also assert that
a new postconviction motion would be barred by the applicable statute of limitations.
See Colo. Rev. Stat. § 16-5-402(1).
Federal courts “do not review issues that have been defaulted in state court on
an independent and adequate state procedural ground, unless the default is excused
through a showing of cause and actual prejudice or a fundamental miscarriage of
justice.” Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998). Application of this
procedural default rule in the habeas corpus context is based on comity and federalism
concerns. See Coleman, 501 U.S. at 730.
“A state procedural ground is independent if it relies on state law, rather than
federal law, as the basis for the decision.” English v. Cody, 146 F.3d 1257, 1259 (10th
Cir. 1998). A state procedural ground is adequate if it “was firmly established and
regularly followed.” Beard v. Kindler, 558 U.S. 53, 60 (2009) (internal quotation marks
omitted).
Mr. Reid fails to demonstrate that Colorado’s rule barring claims raised for the
first time on appeal and Rule 35(c)(3)(VII) of the Colorado Rules of Criminal Procedure
are not independent and adequate state procedural rules. In any event, the Court finds
that they are independent because they rely on state rather than federal law. Colorado’s
rule barring claims raised for the first time on appeal and Rule 35(c)(3)(VII) also are
adequate because they are applied evenhandedly by Colorado courts. See, e.g.,
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People v. Salazar, 964 P.2d 502, 507 (Colo. 1998) (“It is axiomatic that issues not
raised in or decided by a lower court will not be addressed for the first time on appeal.”);
People v. Vondra, 240 P.3d 493, 494-95 (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); see also LeBere v. Abbott, 732 F.3d 1224, 1233 n.13 (10th Cir. 2013)
(noting that several unpublished cases have indicated Colorado’s rule barring claims
that could have been raised previously is an independent and adequate state ground
precluding federal habeas review). Colorado’s statute of limitations for collateral attacks
also is an independent and adequate state procedural ground. See Klein v. Neal, 45
F.3d 1395, 1398 (10th Cir. 1995). Therefore, the due process argument in claim 1(a)
and claims 1(b), 3, and 4(b) are procedurally defaulted and cannot be considered
unless Mr. Reid demonstrates cause and prejudice or a fundamental miscarriage of
justice. See Jackson, 143 F.3d at 1317.
Mr. Reid fails to demonstrate cause and prejudice for his procedural default. He
apparently contends that some claims were not fairly presented to the state courts
because direct appeal counsel was ineffective. In certain instances, ineffective
assistance of counsel can constitute cause to excuse a procedural default. See
Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). However, Mr. Reid cannot
demonstrate cause to excuse a procedural default premised on ineffective assistance of
counsel unless the ineffective assistance of counsel claim first is raised as an
independent constitutional claim in state court. See id. The Court’s review of the record
reveals that Mr. Reid did not fairly present to the state courts any claim that counsel on
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direct appeal was ineffective. Therefore, he cannot rely on direct appeal counsel’s
alleged ineffectiveness to demonstrate cause.
Mr. Reid also fails to demonstrate that a fundamental miscarriage of justice will
result if the Court does not consider the merits of the unexhausted claims. His vague
and conclusory reference to actual innocence is not sufficient to demonstrate a
fundamental miscarriage of justice. 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”).
As a result, the unexhausted claims are procedurally barred and will be
dismissed for that reason.
V. MOTION FOR APPOINTMENT OF COUNSEL
The Court next will address the Prisoner Motion for Appointment of Counsel. Mr.
Reid asks the Court to appoint counsel because he has no legal training, he does not
have access to the prison law library due to the COVID-19 pandemic, his claims are
complex and have merit, and he cannot afford to hire counsel.
“There is no constitutional right to counsel beyond the direct appeal of a criminal
conviction.” Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir. 2008). A judge may
appoint counsel in § 2254 proceedings to a financially eligible individual if the Court
“determines that the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). A
decision regarding appointment of counsel generally is “left to the court’s discretion.”
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Swazo v. Wyo. Dep’t of Corr. State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir.
1994). “However, there is a right to counsel in a habeas case when the district court
determines that an evidentiary hearing is required.” Id. More specifically, Rule 8(c) of
the Rules Governing Section 2254 Cases in the United States District Courts provides
that, “[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to
represent a petitioner who qualifies to have counsel appointed under 18 U.S.C.
§ 3006A.” Furthermore, Rule 6(a) provides that, “[i]f necessary for effective discovery,
the judge must appoint an attorney for a petitioner who qualifies to have counsel
appointed under 18 U.S.C. § 3006A.”
The Court has made no determination regarding whether an evidentiary hearing
is warranted in this action. In addition, no discovery has been authorized by the Court.
Therefore, Mr. Reid is not entitled to appointment of counsel and the Court exercises its
discretion in considering the motion.
The factors to consider in deciding whether to appoint counsel generally include
the merits of the claims, the nature of the factual issues raised, the litigant’s ability to
present his claims, and the complexity of the legal issues being raised. See Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). “The burden is upon the applicant to
convince the court that there is sufficient merit to his claim to warrant the appointment of
counsel.” McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
The Court is not persuaded that appointment of counsel is necessary in the
interests of justice. Mr. Reid has demonstrated an ability to present his claims and
respond to the legal arguments raised by Respondents in the Pre-Answer Response.
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Therefore, the motion for appointment of counsel will be denied.
VI. CONCLUSION
In summary, Mr. Reid’s state law claims are not properly raised in this habeas
corpus action. The double jeopardy argument in claim 1(a) and claims 2, 4(a), and 5 are
exhausted to the extent the claims rely on the same factual bases presented in state
court. The due process argument in claim 1(a) and claims 1(b), 3, and 4(b) are
unexhausted and procedurally barred. The motion for appointment of counsel will be
denied. Accordingly, it is
ORDERED that Applicant’s state law claims, the due process argument in claim
1(a), and claims 1(b), 3, and 4(b) are dismissed. It is further
ORDERED that within thirty days Respondent is 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. It is further
ORDERED that the Prisoner Motion for Appointment of Counsel, Docket No. 27,
is denied.
DATED October 13, 2020.
BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge

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