Allen v. Zavaras

• Decision Date: 15 June 2009
• Docket Number: No. 07-1501.,07-1501.
• Citation: 568 F.3d 1197
• Parties: Edward ALLEN, Petitioner-Appellant, v. Ari ZAVARAS, Executive Director, DOC, and John Suthers, Attorney General of the State of Colorado, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

568 F.3d 1197

Edward ALLEN, Petitioner-Appellant, v. Ari ZAVARAS, Executive Director, DOC, and John Suthers, Attorney General of the State of Colorado, Respondents-Appellees.

No. 07-1501.

United States Court of Appeals, Tenth Circuit.

June 15, 2009.

Robert Seldis Berger of Robert S. Berger, P.C., Denver, CO, for Petitioner-Appellant.

Laurie Booras, First Assistant Attorney General, (John W. Suthers, Attorney General of the State of Colorado with her on the briefs), Denver, CO, for Respondents-Appellees.

Before LUCERO, ANDERSON and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

Edward Allen appeals from the district court's sua sponte dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust state remedies. We grant a certificate of appealability (COA) on a single, narrow issue—whether the district court erred in sua sponte dismissing Allen's habeas petition without requesting a response from the government. We affirm.

I. BACKGROUND

Allen was convicted in state court of three counts of sexual assault on a child by a person in a position of trust and was sentenced to three concurrent indeterminate terms of ten years to life in prison. His conviction was affirmed by the Colorado Court of Appeals and the Colorado Supreme Court denied his petition for writ of certiorari.

In Colorado, a request for post-conviction relief is usually initiated by a petition for writ of habeas corpus filed with the state district court. See Colo. R. Crim P. 35(c)(3). Allen, however, filed his pro se petition with the Colorado Supreme Court. While unusual and seldom productive, doing so is not improper under Colorado law. See Colo.Rev.Stat. § 13-405-101(1) ("If any person is committed or detained for any criminal or supposed criminal matter, it is lawful for him to apply to the supreme court or district courts for a writ of habeas corpus. . . ."); People ex rel. Wyse v. District Court, 180 Colo. 88, 503 P.2d 154, 156 (1972) ("In Colorado, [a writ of habeas corpus] may be sought in the Supreme Court or any district court."). Unlike the state district court, however, the Colorado Supreme Court is under no obligation to consider an original habeas petition.¹ See Shore v. District Court, 127 Colo. 487, 258 P.2d 485, 487 (1953) (noting the Colorado Constitution confers original jurisdiction upon the Colorado Supreme Court to issue writs of habeas corpus, but stating such jurisdiction "is discretionary"). It will exercise its original jurisdiction only "in cases of great public importance, or in cases where not to do so would amount to a denial of justice." People v. Martinez, 22 P.3d 915, 921 (Colo.2001) (en banc). Here, the court elected not to consider the merits of Allen's petition and denied it the day it was filed.

Allen next filed a pro se 28 U.S.C. § 2254 petition for writ of habeas corpus in federal district court, raising five challenges to his conviction. According to the petition, he raised four of the claims on direct appeal and one in his state habeas petition. The magistrate judge ordered Allen to show cause why his petition should not be dismissed for failure to exhaust state remedies, explaining:

It appears that Mr. Allen has failed to exhaust state court remedies for all of his claims because the claim he raised in the original proceeding in the Colorado Supreme Court was not fairly presented to that court. If a claim has been presented for the first and only time in a procedural context in which its merits will not be considered unless there are special and important reasons therefor, . . . [r]aising the claim in such a fashion does not, for the relevant purpose, constitute fair presentation.

(R. Vol. I, Doc. 6 at 3 (quotations omitted)). The magistrate's show cause order informed Allen he could proceed on his exhausted claims, but warned that his unexhausted claim might be foreclosed because of restrictions on subsequent or successive habeas petitions. Allen chose not to amend his petition. Rather, he asserted in his response to the order to show cause that he had exhausted all claims because his habeas petition was properly presented to the Colorado Supreme Court pursuant to Colo.Rev.Stat. § 13-405-101(1). He did not claim (indeed, he would be hard pressed to claim) the Supreme Court considered the merits of his petition.

The district court reviewed Allen's response and dismissed his petition without prejudice for failure to exhaust state remedies. The court held:

[B]ecause the Colorado Supreme Court declined to address the merits of the claims Mr. Allen raised in his original petition for a writ of habeas corpus, that petition does not constitute fair presentation of the claims asserted. . . . Even assuming that Mr. Allen properly exhausted state court remedies for his four other claims in his direct appeal, the instant action still must be dismissed as a mixed petition because he failed to exhaust state court remedies for the fifth claim.

(R. Vol. I, Doc. 9 at 4.)

The district court also denied Allen's motion for leave to proceed in forma pauperis (ifp) on appeal and denied a COA. We appointed counsel for Allen and invited counsel to brief and seek a COA on any issue counsel deemed to have potential merit, expressing an interest in the impact of Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), in the habeas context.² In his supplemental brief, Allen asserts only one claim—that the district court erred in sua sponte dismissing his petition for failure to exhaust without requesting a response from the government.³

II. DISCUSSION

A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted).

The claim Allen raises involves thoughtful consideration of Jones v. Bock, and Kilgore v. Attorney Gen. of Colo., 519 F.3d 1084 (10th Cir.2008). Though we ultimately affirm, the issue is one "reasonable jurists could debate" and thus, we grant a COA. Because the question presented is purely legal, our review is de novo.⁴ See Burger v. Scott, 317 F.3d 1133, 1137 (10th Cir.2003).

In Jones, several prisoners challenged the sua sponte dismissal of their individual § 1983 claims relating to conditions of confinement. The cases were dismissed pursuant to various court-imposed procedural rules adopted to implement the Prison Litigation Reform Act of 1995, 110 Stat. 1321-73, as amended, 42 U.S.C. § 1997e et seq. (PLRA or "the Act").⁵ The heightened procedures were arguably justified by the PLRA's "new mandatory exhaustion requirement" as well as its use of "judicial screening to filter out nonmeritorious claims" prior to requiring a defendant's answer. 549 U.S. at 213, 127 S.Ct. 910.

The Court began its discussion by acknowledging "exhaustion is mandatory under the PLRA and . . . unexhausted claims cannot be brought in [federal] court." Id. at 211, 127 S.Ct. 910. Nevertheless, it decided that requiring prisoners to plead exhaustion of state remedies and applying the "total exhaustion" rule (dismissing an entire suit when unexhausted claims were included) was not authorized or justified solely by the language of the PLRA.

The Court held that because "claims covered by the PLRA are typically brought under 42 U.S.C. § 1983, which does not require exhaustion at all . . . the usual practice should be followed, and the usual practice under the Federal Rules is to regard exhaustion as an affirmative defense." Id. at 212, 127 S.Ct. 910. Thus, exhaustion need not be pled in the complaint, but must be alleged in the answer. Id. at 216, 127 S.Ct. 910. The Court noted: "Although exhaustion was a `centerpiece' of the PLRA" failure to exhaust was not included in the statute's list of reasons to dismiss a petition. Id. at 214, 127 S.Ct. 910.⁶

The Jones Court also said a court confronted with a mixed complaint should consider the exhausted claims and dismiss the remainder. Id. at 221, 127 S.Ct. 910. In so holding, the Court specifically distinguished Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), in which the Court held a federal district court must dismiss habeas petitions containing both exhausted and unexhausted claims. Rose is not affected by Jones.⁷

Kilgore was a habeas case involving timeliness, not exhaustion. We considered "whether, in light of Jones [ ], a district court can require a state habeas petitioner to establish in his or her § 2254 application that the application is timely." 519 F.3d at 1085. We recognized Jones did not directly control in the habeas context, but found its reasoning helpful. We held:

[T]he court may not dismiss [a § 2254] petition sua sponte simply because it lacks sufficient information to determine whether the application has been timely filed. A petition's untimeliness must either be pled by the government as an affirmative defense, or be clear from the face of the petition itself.

Id. at 1089 (emphasis added). We reasoned "a heightened pleading requirement would be inconsistent with other aspects of the habeas scheme, which recognize the practical difficulties petitioners face in bringing their claims." Id. at 1088.

Given this history, Allen asks us to extend Jones and Kilgore by holding a district court cannot sua sponte dismiss a habeas petition for failure to exhaust unless the government pleads failure to exhaust as an affirmative defense or unless the petitioner's failure to exhaust is clear from the...