Jacobs v. Clements
| Decision Date | 13 December 2012 |
| Docket Number | Civil Action No. 12-cv-01884-BNB |
| Parties | ROGER LEE JACOBS, Applicant, v. TOM CLEMENTS, Executive Director of the Colorado Department of Corrections, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. |
| Court | U.S. District Court — District of Colorado |
Applicant, Roger Lee Jacobs, is a prisoner in the custody of the Colorado Department of Corrections (DOC) and is currently incarcerated at the Fremont Correctional Facility in Canón City, Colorado. Mr. Jacobs has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. He challenges the validity of his conviction and sentence in Case No. 99CR0955 in the Adams County, Colorado, District Court.
In an August 20, 2012 Order, 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 October 9, 2012. Mr. Jacobs filed a Reply . . . and Request to Hold this Matter in Abeyance. . . (ECF No. 25), on November 29, 2012.
The Court must construe liberally the Application filed by Mr. Jacobs 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 the reasons stated below, the Court will dismiss the Application as procedurally defaulted.
In June 2001, Mr. Jacobs was convicted of two counts of soliciting for child prostitution. (ECF No. 18-1, at 3-4, of 22). The trial court imposed an indeterminate sentence of 25 years to life. (Id. at 11). On direct appeal, the Colorado Court of Appeals held that the indeterminate sentence was improper, but otherwise affirmed. People v. Jacobs (Jacobs I), 91 P.3d 438, 443 (Colo. App. 2003). Mr. Jacobs was then resentenced to a prison term of 24 years. (ECF No. 18-1, at 9). The 24-year sentence was affirmed on appeal. People v. Jacobs (Jacobs II), No. 04CA2578 (Colo. App. Nov. 30, 2006) (unpublished) (ECF No. 18-22). The Colorado Supreme Court denied Mr. Jacobs' petition for certiorari review on April 2, 2007. (ECF No. 18-20).
On August 2, 2007, Mr. Jacobs filed a motion for reconsideration of sentence pursuant to Colo.R.Crim.P. 35(b). (ECF No. 18-1, at 8). The trial court denied the motion on August 17, 2007. (Id.; 18-19). The Colorado Court of Appeals affirmed the trial court's order in People v. Jacobs (Jacobs III), No. 07CA1851 (Colo. App. March 6, 2008). (ECF No. 18-17). The Colorado Supreme Court denied Applicant's petition for certiorari review on June 23, 2008. (ECF No. 18-15).
On August 1, 2008, Mr. Jacobs filed a motion for post-conviction relief pursuant to Colo. R. Crim. P. 35(c), which was denied on August 5, 2008. (ECF No. 18-1, at 8;ECF No. 18-4). The Colorado Court of Appeals affirmed the trial court's order in People v. Jacobs (Jacobs IV), 08CA1870 (Colo. App. Aug. 27, 2009). (ECF No. 18-12). The Colorado Supreme Court denied Applicant's petition for certiorari review on December 14, 2009. (ECF No. 18-10).
On March 31, 2010, Mr. Jacobs filed a second motion for post-conviction relief pursuant to Colo. R. Crim. P. 35(c), which was denied by the trial court on April 7, 2010. (ECF No. 18-1, at 7; 18-8; 18-9). The trial court denied Applicant's motion for reconsideration on May 4, 2010. (ECF No. 18-6; 18-7). The Colorado Court of Appeals affirmed the trial court's order in People v. Jacobs (Jacobs V), No. 10CA1037 (Colo. App. Dec. 1, 2011). (ECF No. 18-4). The Colorado Supreme Court denied Applicant's request for certiorari review on April 9, 2012. (ECF No. 18-2).
Mr. Jacobs initiated this action on July 19, 2012. He asserts seven claims in the Application: (1) trial counsel was ineffective in failing to conduct an adequate investigation into the illegal mandatory parole component of Applicant's prior Jefferson County District Court conviction and sentence, which negatively impacted the amount of pre-sentence confinement credit that Applicant received on his Adams County District Court sentence ("current sentence"); (2) trial counsel was ineffective in failing to advise the sentencing court that Applicant was entitled to 78 days of pre-sentence confinement credit; (3) trial counsel was ineffective in failing to conduct an adequate investigation into the legality of the parole component of Applicant's prior Jefferson County District Court sentence, which resulted in a sentence that was 78 days longer than authorized by law; (4) appellate counsel was ineffective in failing to investigate the mandatory parole component of Applicant's prior Jefferson County Court conviction and sentenceon appeal and at the resentencing proceeding; (5) the deprivation of 78 days of pre-sentence confinement credit violated Applicant's federal due process rights; (6) Applicant's sentence is unconstitutionally excessive and is not authorized by Colorado law; and, (7) this Court is required to "independently review the record to assess the reasonableness of the state courts' denial of relief" where the state courts refused to rule on the legality of the mandatory parole component of Applicant's sentence for the Jefferson County conviction; and, his right to due process was violated when the state courts failed to conduct an evidentiary hearing on the issue of whether he was entitled to an extra 78 days of pre-sentence confinement credit against his current sentence. (Id. at 19).
Respondents concede, and the Court finds, that the Application is timely under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). (ECF No. 18, at 7). Respondents argue, however, that Mr. Jacobs' claims are procedurally defaulted.
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, 842-43 (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 bepresented 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).
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); see also Harris v. Reed, 489 U.S. 255, 269-70 (1989)); Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) () (internal quotations and citation omitted). A claim is precluded from federal habeas review if the claim has been defaulted in state court on an independent and adequate state procedural ground, 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) (citation omitted).
Mr. Jacobs' 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).
In claims one through four, Mr. Jacobs asserts that his trial and appellate counsel were constitutionally ineffective in failing to conduct an investigation into whetherApplicant is entitled to 78 additional days of pre-sentence confinement credit against his current sentence. Applicant alleges that he was arrested on February 4, 1999, for a violation of parole, which he was serving illegally in connection with a prior Jefferson County conviction. He remained in custody on the parole hold for 78 days until April 23, 1999, when he was charged in his present case. In claim one, Mr. Jacobs argues that trial counsel should have known that under People v. Cooper, 8 P.3d 554 (Colo. App. 2000), aff'd 27 P.3d 348 (Colo. 2001), the term of mandatory parole he was serving on February 4, 1999, was illegal and that the 78 days of custody for an alleged violation of that parole term should have been, but was not, credited against his current sentence. (ECF No. 1, at 11-13). Claims two and three reiterate claim one, adding that the prejudice resulting from counsel's deficient performance resulted in a sentence that was 78 days longer than it should have been. (Id. at 13-14). Claim four reiterates claim one, but extends the claim to counsel who represented Applicant on his initial direct appeal and at resentencing. (Id. at 15).
The state court record demonstrates that Applicant fairly presented a Sixth Amendment claim based on the above facts to the Colorado Court of Appeals in Jacobs V. (ECF No. 18-5, at 13-15). However, the Colorado Court of Appeals rejected the claim on two procedural grounds:
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