Ponis v. Hartley

• Decision Date: 07 August 2012
• Docket Number: Civil Action No. 12-cv-00141-BNB
• Parties: KEVIN PONIS, Applicant, v. STEVE HARTLEY, Warden of Arkansas Valley Correctional Facility, TOM CLEMENTS, Executive Director, Colorado Department of Corrections (CDOC), and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents.
• Court: U.S. District Court — District of Colorado

KEVIN PONIS, Applicant, v. STEVE HARTLEY, Warden of Arkansas Valley Correctional Facility, TOM CLEMENTS, Executive Director, Colorado Department of Corrections (CDOC), and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents.

Civil Action No. 12-cv-00141-BNB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: August 7, 2012

ORDER TO DISMISS IN PART AND FOR ANSWER

Applicant, Kevin Ponis, is in the custody of the Colorado Department of Corrections. He is incarcerated currently at the Arkansas Valley Correctional Facility in Crowley, Colorado. Mr. Ponis 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 Jefferson County, Colorado. He filed an amended application (ECF No. 15) on March 30, 2012. Mr. Ponis has been granted leave to proceed in forma pauperis.

In an order filed on April 12, 2012, 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). Respondents submitted a Pre-Answer Response on May 31, 2012. After requesting and obtaining an extension of time, Applicant filed a Reply on July 27, 2012.

The Court must construe liberally the Application filed by Mr. Ponis 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 Application will be denied in part.

I. Background and State Court Proceedings

On January 10, 2005, Mr. Ponis was convicted by a jury of one count of sexual assault on a child by a person in a position of trust - pattern in Jefferson County District Court Case No. 04CR1488. (Amended Application (ECF No. 15), at 2 of 23; Pre-Answer Resp., Ex. A (ECF No. 26-1), at 5 of 16). On March 8, 2005, he was sentenced to an indeterminate prison term of eleven years to life. (Id.).

The Colorado Court of Appeals affirmed Mr. Ponis' conviction on direct appeal in People v. Ponis, No. 05CA0810 (Colo. App. Nov. 8, 2007) (unpublished decision). (See Pre-Answer Resp., Ex. C (ECF No. 26-3)). The Colorado Supreme Court denied Applicant's request for certiorari review on September 2, 2008. (Id., Ex. D (ECF No. 26-4)).

Mr. Ponis filed a motion for sentence reconsideration pursuant to Colorado Rule of Criminal Procedure 35(b) on January 26, 2009. (ECF No. 26-1, at 9-10 of 16). The trial court denied the motion on February 2, 2009. (Id. at 9). Applicant did not file an appeal. (Id.)

Mr. Ponis filed a motion for post-conviction relief pursuant to Colo. Crim. P. Rule 35(c) on October 30, 2009. (Id. at 9). The state trial court denied the motion on December 22, 2009. (Id.) The Colorado Court of Appeals affirmed the trial court'sorder in People v. Ponis, No. 10CA0284 (Colo. App. May 26, 2011) (unpublished decision). (See Pre-Answer Resp., Ex. F (ECF No. 26-6)). The Colorado Supreme Court denied certiorari review on January 9, 2012. (See Pre-Answer Response (ECF No. 26), at 2 n.2 of 22).

Mr. Ponis initiated this action on January 19, 2012. He asserts three claims in the amended Application, all of which include several sub-claims.

First, Applicant claims that his trial counsel was ineffective in failing to:

(a) investigate information provided to the defense by teachers, students, and coaches that Applicant reasonably believed the victim was eighteen years old;

(b) request a special prosecutor due to an alleged conflict of interest with the District Attorney's office who was a family member of Applicant's ex-wife;

(c) research and understand the law concerning other acts evidence and object to the admission of evidence that Applicant had a sexual relationship with two eighteen-year-old women;

(d) object to improper jury instructions that failed to require the jury to find that the victim was both a child and under eighteen years old;

(e) raise issues on direct appeal that would have been successful but were procedurally barred in Applicant's postconviction proceeding;

(f) contest a government motion for the introduction of evidence;

(g) object to unfair testimony at trial;

(h) object to the prosecutor's questions and closing argument regarding Applicant's extra-marital affairs;

(i) call available witnesses;

(j) conduct any legal investigation

(k) understand the law on key legal issues, including but not limited to, the law regarding similar acts evidence and immaterial, irrelevant evidence.

(ECF No. 15, at 13-17 of 23).

In claim two, Mr. Ponis asserts that he was denied his due process right to a fair trial by:

(a) the admission of testimony from two women with whom Applicant had a sexual relationship when they were eighteen years old;

(b) the prosecutor's emphasis of Applicant's prior sexual relationships in closing argument;(c) improper jury instructions that failed to require the jury to find that the victim was a child;

(d) a conflict of interest that resulted in a vindictive prosecution;

(e) the prosecutor's questions and arguments regarding Applicant's infidelity with his wife.

(ECF No. 15, at 13-14, 17-19 of 23).

For his third claim, Mr. Ponis challenges:

(a) his life sentence as disproportionate to his crime, in violation of the Eighth Amendment;

(b) the constitutionality of Colorado's position of trust statute, COLO. REV. STAT. (C.R.S.) § 18-3-405.3, under the First, Eighth and Fourteenth Amendments;

(c) the constitutionality of Colorado's Sex Offender Lifetime Supervision Act of 1998 (SOSA), § 18-1.3-1002, et al., C.R.S., under the First, Eighth and Fourteenth Amendments.

(Id. at 13-14, 19-22 of 23).

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 No. 26, at 6-7 of 22).

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 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. 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 ofthe 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); Harris v. Reed, 489 U.S. 255, 269-70 (1989)). 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'spro 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. Claim One

1. Claims 1(a) - 1(d)

Respondents concede, and the portions of the state court record attached to the Pre-answer Response reflect, that Applicant presented claims 1(a), 1(b), 1(c) and 1(d) to the Colorado Court of Appeals as federal constitutional claims in his state post-conviction proceeding. (See ECF No. 26-5, at 19-27 of 36; ECF No. 26-6, at 6-7 of 14). Respondents maintain, however, that claims 1(b) and 1(d) are not exhausted because they were not presented to the Colorado Supreme Court in Applicant's petition for certiorari review. (See Ex. G to Pre-Answer Resp. (ECF No. 26-7)).

As previously stated, 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 available." Id. at 847-48. Therefore, if a state articulates that a certain avenue for relief is not part of its standard appellate review process, it is not necessary for a defendant to pursue...