Russell v. Raemisch

• Decision Date: 03 September 2015
• Docket Number: Civil Action No. 15-cv-00657-LTB
• Parties: JAYDEE RUSSELL, Applicant, v. RICK RAEMISCH, Executive Director fo the Colorado Department of Corrections, JASON LENGRICH, Warden, Buena Vista Corr. Facility, and CYNTHIA H. COFFMAN, Attorney General for the State of Colorado, Respondents.
• Court: U.S. District Court — District of Colorado

JAYDEE RUSSELL, Applicant, v. RICK RAEMISCH, Executive Director fo the Colorado Department of Corrections,JASON LENGRICH, Warden, Buena Vista Corr. Facility,and CYNTHIA H. COFFMAN, Attorney General for the State of Colorado, Respondents.

Civil Action No. 15-cv-00657-LTB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

September 3, 2015

Senior Judge Lewis T. Babcock

ORDER TO DISMISS IN PART, FOR ANSWER IN PART, AND FOR STATE COURT RECORD

I. Background

Applicant is in the custody of the Colorado Department of Corrections and currently is incarcerated at the Buena Vista, Colorado, Correctional Facility. Applicant, acting pro se, has filed a 128-page 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. 06CR362. In an order entered on March 31, 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 seventy-three page Pre-Answer Response, ECF No. 12, on April 27, 2015. After a request for a sixty-day extension of time by Applicant, and a granting of the extension, Applicant filed a Reply, ECF No. 16, on July 13, 2015.

Applicant raises thirteen claims, three of which have two subparts. Overall, Applicant asserts sixteen claims. The claims are as follows:

(1) Denial of a right to proceed pro se at trial as guaranteed by the Sixth Amendment and in violation of the Fifth and Fourteenth Amendments;

(2) Violation of the Double Jeopardy Clause because Applicant was prosecuted by the State of Colorado a second time, after being acquitted by the State of New Mexico, in violation of the Fifth and Fourteenth Amendments;

(3) Imposition of concurrent sentences pursuant to the Colorado Organized Crime Control Act (COCCA) and of a predicate offense of the COCCA, conspiracy to distribute a controlled substance, in violation of the Fifth and Fourteenth Amendments;

(4) Denial of a right to a speedy trial in violation of the Fifth, Sixth, and Fourteenth Amendments;

(5) Use of perjured testimonial evidence to obtain an indictment in violation of the Fifth and Fourteenth Amendments;

(6) Use of perjured testimonial evidence at trial to obtain a conviction in violation of the Fifth and Fourteenth Amendments:

(7) Ineffective Assistance of Trial Counsel:

(i) Trial counsel failed to investigate an alibi defense or call any requested alibi witnesses in violation of the Fifth, Sixth, and Fourteenth Amendments; and

(ii) Trial counsel failed to seek recusal of trial judge after trial and before sentencing in violation of the Fifth, Sixth, and Fourteenth Amendments;(8) Denial of right to present a defense and call witnesses in violation of the Fifth, Sixth, and Fourteenth Amendments;

(9) Prosecution violated the Fifth, Sixth, and Fourteenth Amendments by:

(i) Withholding impeachment and exculpatory evidence (Brady claim); and

(ii) Failing to file their oath of office as required by state law

(10) Denial by the trial court of a motion for a bill of particulars in violation of the Fifth and Fourteenth Amendments;

(11) Imposition of a sentence without notice to the defense or allowing defendant to be present during sentencing in violation of the Fifth and Fourteenth Amendments;

(12) Denial of a postconviction evidentiary hearing regarding ineffective assistance of trial counsel claims in violation of the Fifth and Fourteenth Amendments; and

(13) Denial of state court record in violation of Fifth and Fourteenth Amendments as follows:

(i) Allowed only access to state court record for four hours to perfect direct appeal; and

(ii) Denied complete trial court record at state expense to perfect a postconviction appeal.

II. Analysis

I 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, I should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

Respondents concede, and Applicant agrees, that the action is timely. Applicantmaintains, however, that Respondents' calculations on how much time has run pursuant to 28 U.S.C. § 2244(d) are incorrect. I agree with Applicant. The time not tolled from November 5, 2014, until March 25, 2015, equals 141 days not 187 days. The total time not tolled pursuant to § 2244(d) is 297 days. Nonetheless, the time during which a 28 U.S.C. § 2254 application is pending in this Court does not toll the one-year limitation period in § 2244(d). See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that "an application for federal habeas corpus review is not an 'application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)" and "therefore did not toll the limitation period during the pendency of [an applicant's] first federal habeas petition"). The fact that the instant action was timely under § 2244(d) at the time this action was filed does not mean that any future habeas action filed by Applicant will be timely.

Respondents contend that (1) Claims One, Four, Seven(i) (in part), and Eleven are unexhausted because Applicant failed to present these claims to the Colorado Supreme Court (CSC); (2) Claims Two, Five, Six, Eight, Nine(i) and (ii), and Ten are defaulted as inadequately briefed on direct appeal; and (3) Claims Three, Seven(i) (in part) and (ii), Twelve, and Thirteen(i) and (ii) are anticipatorily defaulted because they were not presented to the Colorado Court of Appeals (CCA) as a constitutional claim. I will discuss the claims as follows.

1. Exhausted Claims

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'srights. 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).

To exhaust state court remedies, a claim must be presented to the state's highest court if review in that court is available. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Colorado law provides that

"[i]n all appeals from criminal convictions or postconviction relief matters from or after July 1, 1974, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Rather, when a claim has been presented to the Court of Appeals or Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies."

Colo. App. R. 51.1(a).

In his concurring opinion in O'Sullivan, Justice Souter provides an example of when state supreme court review is unavailable. O'Sullivan, 526 U.S. at 849. The language Justice Souter quotes is taken from a South Carolina Supreme Court decision in In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (1990), and mirrors the language in Rule 51.1, in stating a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the court of appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.

Respondents are correct that, in order to exhaust state court 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, "nothing in the exhaustion doctrine requir[es] federal courts to ignore a state law or rule providing that a given procedure is not available." Id. at 847-48 (citation and internal quotations omitted). 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 that avenue in order to exhaust state remedies. See id.

Furthermore, four circuit courts have concluded that state rules similar to Colo.App. R. 51.1(a) eliminate the need to seek review in the state's highest court in order to satisfy the exhaustion requirement. See Lambert v. Blackwell, 387 F.3d...