Carbonell v. Falk

• Decision Date: 17 April 2013
• Docket Number: Civil Action No. 13-cv-00074-BNB
• Parties: JOHN CARBONELL, Applicant, v. FRANCIS FALK, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

JOHN CARBONELL, Applicant,

v.FRANCIS FALK, Warden, andTHE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

Civil Action No. 13-cv-00074-BNB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: April 17, 2013

ORDER DRAWING CASE

Applicant, John Carbonell, is in the custody of the Colorado Department of Corrections. He is incarcerated currently at the Correctional Facility in Limon, Colorado. Mr. Carbonell has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his criminal conviction in the District Court of Adams County, Colorado. He has paid the $5.00 filing fee.

In an order entered January 23, 2013, Magistrate Judge Boyd N. Boland directed Respondents to file a pre-answer response addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). After obtaining an extension of time, Respondents submitted a pre-answer response on February 27, 2013. Applicant filed a reply on April 12, 2013.

The Court must construe liberally the Application filed by Mr. Carbonell 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 act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For thereasons stated below, the Application will be drawn to a district judge and to a magistrate judge.

I. Background and State Court Proceedings

On April 21, 2000, Mr. Carbonell was convicted by a jury of the first degree murder of his wife in Adams County District Court Case No. 99CR1764. (ECF # 13-1, at 1). He was sentenced to a term of life in prison without parole. (ECF # 13-2, at 10).

The Colorado Court of Appeals affirmed Mr. Carbonell's conviction on direct appeal in People v. Carbonell, No. 00CA1258 (Colo. App. July 11, 2002) (unpublished decision). (ECF # 13-4). The United States Supreme Court denied Applicant's request for certiorari review on October 6, 2003. (ECF # 13-6).

Mr. Carbonell filed a motion for post-conviction relief in the state district court on April 16, 2003, which was pending for several years until the motion was denied on April 21, 2010. (ECF # 13-7). The Colorado Court of Appeals affirmed the trial court's order in People v. Carbonell, 10CA1144 (Colo. App. June 14, 2012). (ECF # 13-9). The Colorado Supreme Court denied Applicant's petition for certiorari review on November 27, 2012. (ECF # 13-1).

Mr. Carbonell initiated this action on January 14, 2013. He asserts the following claims in the Application:

(1) Applicant was denied a fair trial by the trial court's failure to: (a) excuse a biased juror for cause, requiring Applicant to remove her by peremptory challenge; (b) individually (rather than only collectively) voir dire jurors who said they had only a vague recollection of publicity involving the victim's murder; and (c) inquire whether the jurors "should be disqualified as required by State law (depriving Mr. Carbonell of a substantive due process right)." (ECF # 1, at 5).

(2) Applicant was denied a fair trial because there were references at trial to the fact that a witness (who testified that Applicant killed the victim) hadfailed a polygraph after initially telling the police she had no knowledge of the murder. (Id. at 6).

(3) The trial court violated Applicant's Fourteenth Amendment right by admitting the testimony of lay witnesses who opined that Applicant committed the murder and should be punished for it. (Id.).

(4) The trial court violated Applicant's Fourteenth Amendment right by admitting transcripts of "child support hearings" containing irrelevant, unfounded, and prejudicial allegations against Applicant. (Id. at 7).

(5) Applicant was deprived of a fair trial by the cumulative prejudicial effect of trial errors. (Id.).

(6) Applicant received ineffective assistance of counsel, based on counsel's failure to: (a) follow up on an initial contact with an adverse trial witness, and therefore never further inquired whether she would submit to a defense interview; (b) present at trial the testimony of Barbara Johnson, who told a defense investigator that she would testify to facts amounting to an alibi; (c) discuss with Applicant the possibility of presenting an alternate suspect defense, depriving Applicant of the opportunity to decide what theory counsel would pursue at trial; (d) ask Applicant's former boss on direct examination whether Applicant "would have been aware" of a statute precluding him from collecting a life insurance payout on his wife if it was discovered that he had murdered her; (e) hire experts to evaluate: (1) whether the victim's blood, found in Applicant's and his wife's mattress, might have been menstrual blood, and, (2) whether Applicant's mental state at the time of the crime might have supported a second degree murder instruction or some other theory of defense; (f) request a curative instruction informing the jury that polygraphs are not reliable, and that the jurors should disregard any evidence concerning the previously mentioned polygraph; and, (g) "cumulative error deprived Mr. Carbonell of his Sixth Amendment right to effective assistance of counsel." (Id. at 7-8).

II. Timeliness of Application

Respondents do not challenge the timeliness of the Application under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). (See ECF # 14-1, at 6-9).

III. Exhaustion of State Remedies and Procedural Default

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 remediesor 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. 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. A claim must be presented as a federal constitutional claim in the state court proceedings in order to be exhausted. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam).

Furthermore, the "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). Although 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), "[i]t is not enough that all the facts necessary to support the federal claim were before the state courts." Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). A state prisoner bringing a federal habeas corpus action bears the burden of showing that he has exhausted all available state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).

If a habeas petitioner "failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred . . . there is a procedural default. . . . ." Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Anderson v.Sirmons, 476 F.3d 1131, 1139-40 n.7 (10th Cir. 2007) (applying anticipatory procedural bar). A claim that has been procedurally defaulted in the state courts on an independent and adequate state procedural ground is precluded from federal habeas review, unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the federal violation, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007). A petitioner's pro se status does not exempt him from the requirement of demonstrating either cause and prejudice or a fundamental miscarriage of justice. See Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994).

A. Claims 1(a), 2, 3, 4, 6(a), 6(b), and 6(e)

Respondents concede, and Mr. Carbonell's opening briefs in the state court direct appeal and post conviction proceedings reflect, that Applicant presented claims 1(a), 2, 3, 4, 6(a), 6(b) and 6(e) to the Colorado Court of Appeals and the Colorado Supreme Court as federal constitutional claims. (See ECF ## 13-2, 13-5, 13-8, 13-10). As such, the Court finds that Mr. Carbonell exhausted state court remedies for claims 1(a), 2, 3, 4, 6(a), 6(b) and 6(e).

B. Claims 1(b), 1(c), 5 and 6(d)

Respondents contend that Mr. Carbonell failed to exhaust available state remedies for claims 1(b), 1(c), 5 and 6(d) because he did not present those claims to the Colorado Supreme Court in a petition for certiorari review.

Applicant raised claims 1(b), 1(c) and 5 to the Colorado Court of Appeals in his opening brief on direct appeal. (ECF # 13-2). He presented claim six to the Colorado Court of Appeals in his opening brief in the state post-conviction proceeding. (ECF # 13-8). The Colorado Court of Appeals denied each claim on the merits. (ECF ## 13-4; 13-9).

The Court does not agree that Mr. Carbonell's failure to present claims 1(b), 1(c), 5 and 6(d) in a petition for certiorari review renders those claims unexhausted for purposes of federal habeas review. In order to exhaust state remedies, a claim must be presented to the state's highest court if review in that court is available. See O'Sullivan, 526 U.S. at 845. However, "there is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing that a given procedure is not...