Laurson v. Lind

• Decision Date: 05 November 2015
• Docket Number: Civil Action No. 15-cv-00933-GPG
• Parties: ERIC LAURSON, Applicant, v. RANDY LIND, and CYNTHIA COFFMAN, The Attorney General of the State of Colorado Respondents.
• Court: U.S. District Court — District of Colorado

ERIC LAURSON, Applicant, v. RANDY LIND, andCYNTHIA COFFMAN, The Attorney General of the State of Colorado Respondents.

Civil Action No. 15-cv-00933-GPG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

November 5, 2015

ORDER OF DISMISSAL

I. Background

Applicant is in the custody of the Colorado Department of Corrections and currently is incarcerated at the Arkansas Valley Correctional Facility in Ordway, Colorado. Applicant, acting pro se, initiated this action on May 1, 2015, by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, ECF No.1, challenging the conviction and sentence in State of Colorado Criminal Case No. 98CR1675. Applicant filed an Amended Application on June 18, 2015, ECF No. 9, which is the operative pleading.

In an order entered on June 19, 2015, Magistrate Judge Gordon P. Gallagher directed 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 under 28 U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those affirmative defenses in this action.

Respondents filed a Pre-Answer Response, ECF No. 15, on August 10, 2015, and Applicant filed a Reply, ECF No. 16, on September 18, 2015.

Applicant raises seven claims. The claims are as follows:

(1) In violation of the Sixth and Fourteenth Amendments, trial counsel failed to request jury instructions and the trial court failed to instruct the jury on the definition of "participant";

(2) In violation of the Fourteenth Amendment, trial counsel showed bias before the trial, when he stated to Applicant's brother at his trial that he would "take it easy on him" because he would be sentencing his brother to life without parole;

(3) In violation of the Fourteenth Amendment, admission of prejudicial evidence of prior violent acts committed by Applicant;

(4) In violation of the Sixth Amendment, a juror was seated who had familiarity with the court and whose husband worked for the court and at the time of the trial was a Jefferson County deputy;

(5) In violation of the Sixth Amendment, trial counsel was ineffective in not telling Applicant about the comments the judge made at his brother's hearing and in not challenging apparent bias by the trial judge;

(6) In violation of the "Eighth Amendment equal protection rights," trial counsel and trial court failed to investigate whether Applicant suffered from trauma and other related disorders that would support a diminished capacity and demonstrate his inability to participate in his own defense; and

(7) Colo. Rev. Stat. §§ 18-1-502 and 18-1-503(4) were applied in an unconstitutional manner because the jury is required to return a verdict that Applicant acted with the same culpable mental state in causing the death of the victim, which did not happen in this case.

ECF No. 9 at 5-16.

II. Analysis

The Court must construe liberally the Application and the Reply, because Applicant 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.

Respondents concede that the action is timely. ECF No. 15 at 11. Respondents, however, argue that all of the claims asserted in the Application are unexhausted and no state remedy is available; because any attempt to relitigate the issues, based on a new constitutional theory, would be rejected by the state courts as an abuse of process. Id. at 15. In support of their argument, Respondents state that the claims in Applicant's 2013 postconviction motion were denied pursuant to Colo. R. Crim. P. 35(c)(3)(VII) or (VI); because the claims either are successive or could have raised previously in Applicant's direct appeal or in his previous Rule 35(c) postconviction motion. Id. at 16.

1. Exhaustion

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 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 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).

"The 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 that he has exhausted all available state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).

i. Claims One, Two, Four, and Five

Respondents argue that Applicant raised these claims in his first postconviction proceeding, but only raised them in a conclusory manner in his appeal to the Colorado Court of Appeals (CCA) and the Colorado Supreme Court (CSC) based on cumulative error; and the CCA refused to address such a "skeletal" argument. ECF No. 15 at 13.

In the Reply, Applicant argues that (1) Respondents' skeletal argument is "nothing more than a smoke and mirrors attempt to distract from the validity of [his] claims"; (2) it is clearly established law and procedure that a pro se litigant's filings should be liberally construed; and (3) he pursued all of his filings with due diligence and had to rely on others to help him. ECF No. 16 at 2-3.

In his opening brief, on appeal of the first postconviction motion, Applicant argued as follows.

The combination of error and irregularities in the Defendant's case need not be re-articulated in full in this motion. However, the Appellant request [sic] that this Court accept and review all of the Appellant's post-conviction filings and efforts contained in the record. It is imperative for this Court to take and consider the claims of ineffective assistance of trial counsel, judicial bias, juror bias and misconduct, instructional error and the remainder of the issues contained in the briefing.

ECF No. 15-6 at 11.

In addressing these claims the CCA found as follows.

V. Cumulative Error

Finally, defendant asks that we review the "totality of [his] postconviction filings" and other "efforts" and conclude that he is entitled to a hearing or reversal of his convictions based upon cumulative error. He summarily states that the combined effects of "ineffective assistance of trial counsel, judicial bias, juror bias and misconduct, instructional error and the remainder of the issues contained in the briefing . . . render the proceedings infirm."

"The doctrine of cumulative error requires that numerous errors be committed, not merely alleged." People v. Rivers, 727 P.2d 394, 401 (Colo. App. 1986).

As noted above, a "skeletal" argument, which is nothing more than an assertion, does not preserve a claim. The reviewing court needs to be informed of specific errors and the grounds, supporting facts, and authorities in support of the claim. See Rodriguez, 914 P.2d at 250; Venzor, 121 P.3d at 264.

Defendant's claim of cumulative error is presented to us only in a perfunctory or conclusory manner and thus, we decline to address it.

People of State of Colo. v. Laurson, No. 10CA1789, 6 (Colo. App. July 26, 2012); ECF No. 15-7 at 7.

As a general rule, 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); see also Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007). The Court will discuss actual prejudice and fundamental miscarriage of justice below.

"A state procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision." Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir.1998) (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). "For the state ground to be adequate, it must be strictly or regularly followed and applied evenhandedly to all similar claims." Hickman, 160 F.3d at 1271 (citations and internal quotations omitted). Application of this procedural default rule in the habeas corpus context is based on comity and federalism concerns. Coleman v. Thompson, 501 U.S. 722, 730 (1991).

The CCA found that Applicant failed to specify the errors and to state the grounds for relief based on supporting facts and authorities. Laurson , No. 10CA1789 at 6. Pursuant to Colorado Appellate Rule 28(a)(4), an argument "shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on . . . ."

State of Colorado appellate rules are not "mere technicalities, but rather serve an...