Applicant, acting pro se, initiated this action by filing an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. A review of the Application indicated that Applicant's claims are more appropriately addressed under 28 U.S.C. § 2254, because Applicant is challenging the validity of his 2012 conviction and not the execution of his sentence. Applicant was directed to submit his claims on a proper Court-approved form that is used in filing § 2254 actions.
Applicant complied and submitted a § 2254 Court-approved form and asserted four claims. Rather than state on the form the supporting facts for each of the four claims, Applicant attached (1) a narrative of the state criminal proceedings; (2) a request that his pending state probation hearings be stayed until resolution of this case; (3) the motion to reconsider the length limit of his opening brief that he filed in the Colorado Court of Appeals (CCA),which includes a listing of the fifty-four claims he desired to present to the CCA; and (4) the CCA's judgment affirming his conviction.
Respondents were directed to address 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) and/or procedural default, which they did in their Pre-Answer Response. Respondents contend that Applicant's four claims stated on the § 2254 form are inadequate and do not meet the standard set forth in the Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus Cases Under Section 2254, because notice pleading is not sufficient and Applicant must assert facts that point to a real possibility of constitutional error.
Magistrate Judge Gordon P. Gallagher then directed Applicant to amend and specify all grounds for relief available to him and to state the facts that support each ground. On October 7, 2015, Applicant submitted an Amended Petition, [#13]1, and an Attachment, [#14], that sets forth fifty-six claims. Thus, the October 7, 2015, Amended Petition and Attachment are the operative pleadings in this case.
Because Applicant filed an amended § 2254 pleading, Respondents filed a Pre-Answer Response on November 27, 2015, see [#20], that addresses the amended pleading. On December 9, 2015, Applicant filed a Reply, [#21], to the Pre-Answer Response. Applicant also submitted a Motion to Stay Probation Sentencing and Request for Clarification of Magistrate's Order, [#26]. I address the Pre-Answer Response and Reply, along with the Motion to Stay.
The fifty-six claims Applicant raises are summarized as follows.
(1) Denial by the court of additional time to obtain counsel and being arraigned over an objection;
(2) Denial of the right to subpoena witnesses;
(3) Denial of the right to hearings on timely written pretrial motions;
(4) Denial of the ability to call IRS auditors or admit their reports;
(5) Alteration of the terms of the indictment after all evidence was completed;
(6) Lack of jurisdiction and verdicts that did not match the charges;
(7) Denial of a jury of peers from the vicinage of the alleged crime;
(8) Denial of the right to an impartial jury;
(9) Verdicts that lack sufficient evidence;
(10) Rejection by AG of the IRS definition of federal taxable income, line 1 on the state income tax return;
(11) Trial court failure to tender Applicant's jury instructions to the jury;
(12) Denial of the right to a speedy and public trial;
(13) Trial court error by denying applicant's request for a bill of particulars;
(14) Refusal by prosecution to provide discovery within the 20-day deadline required by Colo. R. Crim. P. 16;
(15) Fraud by the prosecution in padding records;
(16) Prosecutorial failure to index the discovery;
(17) Trial court error by denying Applicant's motion to suppress bank records;(18) Concealment of evidence of innocence from the grand jury by the prosecution;
(19) Denial of a state audit;
(20) Trial court openly sided against Applicant during the trial by making derogatory remarks about individuals on Applicant's witness list;
(21) Prosecution repudiated its own witness;
(22) Prosecution admitted evidence with no probative value;
(23) Prosecution persuaded the jury to overrule federal law and findings;
(24) Absence of unanimous jurors of the conviction and of a special verdict on what four amounts jurors found to be taxable;
(25) Prosecution deceived jurors on the definition of "income";
(26) Felony charges were cumulative;
(27) Prosecution wrongly charged Applicant with influence of a public servant when he was cooperating;
(28) Criminal charges are arbitrary and capricious when a civil resolution is available for the same action;
(29) Prosecution prevented the presentation of exculpatory evidence;
(30) Prosecution improperly informed the jury about a pretrial motion Applicant filed regarding the statute of limitations on felony prosecutions;
(31) "The AG engaged in scurrilous personal attacks on petitioner throughout the trial to inflame juror passions";
(32) Trial court denial of Applicant's presentation of character evidence from two Colorado congressman;
(33) Trial court curtailing of Applicant's redirect testimony;
(34) Trial court improper denial of Applicant's proposed juryinstructions defining the terms "evading," "income," "lobbying," "good faith," and "specific intent";
(35) Tax refund by the state department of revenue was a final civil finding and the state is precluded from proceeding with a subsequent criminal proceeding regarding the refund;
(36) Withholding by the prosecution of evidence that Applicant had been given a full civil tax refund;
(37) Improper conviction for tax evasion and fraud offenses after 2005, when there was no 2006 or later tax return in evidence;
(38) Trial court refused to admit evidence of Applicant's innocence;
(39) Lack of grand jury jurisdiction based on state statutory requirements;
(40) Prosecution only called ten of the sixty witnesses it endorsed;
(41) Count four is impossible because Applicant cannot be charged for not filing returns in 2006 and 2007 and concurrently charged with engaging in tax evasion and tax fraud for that time period;
(42) Denial of Applicant's written discovery requests;
(43) Lack of probable cause supporting the indictment and denial of grand jury motions without a hearing;
(44) Misconduct during grand jury proceedings, including the number of investigators in the grand jury room, and juror residency and composition violated applicant's rights to due process and equal protection;
(45) Lack of probable cause and particularity in affidavits and motions for orders to produce records and in grand jury subpoenas;
(46) Errors in the jury instructions;
(47) Trial court was biased;(48) Denial by trial court of most defense exhibits, then trial court lost one of few exhibits admitted, and falsely accused Applicant of putting admitted exhibits in the snow and throwing exhibits in the courtroom during trial;
(49) Denial by trial court of Applicant's right to print and present to the jury state and federal tax law and constitutional provisions;
(50) Denial by the trial court of Applicant's right to present a defense relying on tax-exempt status, non-profit mailing status, his state non-profit standing, and sales tax exemption;
(51) Denial by trial court of Applicant's right to present a defense that how a $2 million loan is used cannot disqualify a charity because it was not and is not tax-deductible;
(52) Denial by trial court of Applicant's right to impeach the chief state investigator;
(53) Trial court imposed ten-hour trial days and blamed Applicant in front of the jury for the extended days;
(54) "Filing a false state tax return is impossible when defendant accurately listed on line one the entry on the federal tax return line and the true amount of withholding";
(55) Denial by trial court of Applicant's requests to share the grand jury transcript with prospective defense attorneys; and
(56) Trial court error by refusing to admit an exhibit quoting Gregory v. Helvering, 69 F.2d 809, 810 (2d Cir. 1934), that explains the difference between tax evasion and tax avoidance.
[#14].
Because Applicant is not represented by an attorney, I must construe the Application liberally, which I have. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I may not act - and have not acted - as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
For the following reasons, the § 2254 action will be dismissed in part because many of the claims are barred procedurally. However, the Respondents will be directed to answer Claims Twenty, Twenty-Eight, Thirty, Thirty-One, Thirty-Two, and Thirty-Three. Finally, Applicant's Motion to Stay Probation will be denied.
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. 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. People, 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...
