Shea v. Raemicsh

• Decision Date: 29 February 2016
• Docket Number: Civil Action No. 15-cv-2354-WJM
• Parties: DANNY SHEA, Plaintiff, v. RICK RAEMICSH, Executive Director, CDOC THE ATTORNEY GENERAL OF STATE OF COLORADO, Defendants.
• Court: U.S. District Court — District of Colorado

DANNY SHEA, Plaintiff, v. RICK RAEMICSH, Executive Director, CDOC THE ATTORNEY GENERAL OF

STATE OF COLORADO, Defendants.

Civil Action No. 15-cv-2354-WJM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

February 29, 2016

Judge William J. Martínez

ORDER TO DISMISS IN PART AND FOR ANSWER

Applicant, Danny Shea, is currently incarcerated in the Southern Ohio Correctional Facility. On October 23, 2015, Mr. Shea, acting pro se, filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) (the "Application") challenging the validity of his Colorado conviction and sentence in Denver County District Court case number 04CR4896. He has paid the $5.00 filing fee.

On October 26, 2015, U.S. Magistrate Judge Gordon P. Gallagher ordered 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 pursuant to 28 U.S.C. § 2254(b)(1)(A) if Respondents intended to raise either or both of those defenses in this action. (ECF No. 3). Respondents filed their Pre-Answer Response on November 10, 2015 (ECF No. 8) arguing that two of the claims were procedurally barred and one of the claims was repetitive. Respondents conceded that the Application was timely and that the remaining claims were exhausted. After receiving two extensions of time, Mr. Shea filed a Reply to the Pre-Answer Response on December 24, 2015 (ECF No. 13).

The Court must construe the Application and other papers filed by Mr. Shea liberally 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 (10^th Cir. 1991). However, the Court should not be 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, in part.

I. Background

A. State Court Proceedings

The Colorado Court of Appeals summarized the state court proceedings as follows:

Shea and numerous codefendants were indicted in connection with alleged racketeering activities of the "211 Crew," a group of prison inmates. Ultimately, a jury convicted Shea of violating the Colorado Organized Crime Control Act (COCCA), conspiracy to commit second degree assault, tampering with a witness or victim, and two counts of conspiracy to distribute a schedule II controlled substance. The trial court then adjudicated Shea as a habitual criminal and sentenced him to an aggregate term of 112 years in the Department of Corrections (DOC).

Shea appealed his conviction and sentence, and a division of this court affirmed the conviction and affirmed in part and reversed in part the sentence. People v. Shea, (Colo. App. No. 08CA1645, Aug. 4, 2011) (Shea I). On remand, the trial court modified the sentence in part.

Thereafter, Shea filed a pro se Crim. P. 35(c) motion and two supplements to that motion, alleging numerous claims of ineffective assistance of trial counsel. He also moved for the appointment of counsel to assist him in his efforts to obtain postconviction relief.

In a thorough and detailed order, the postconviction court denied Shea's motions. . . .

(ECF No. 8-7 at 2-3, People v. Shea, (Colo. App. No. 13CA1896, Apr. 2, 2015) (not published) (Shea II)). The Colorado Court of Appeals affirmed the postconviction court's order. Id. The Colorado Supreme Court denied certiorari on October 13, 2015. (ECF No. 8-9).

B. Federal Habeas Applications

On October 23, 2015, Applicant filed the current habeas application pursuant to 28 U.S.C. § 2254 in this Court. (ECF No. 1) The Application asserts the following claims for relief:

(1) Mr. Shea received ineffective assistance of counsel in violation of his Sixth Amendment rights due to:

(A) Counsel admitted guilt in Opening Statement;

(B) Counsel abandoned a clearly viable defense of duress;

(C) Failure to investigate and obtain gang expert;

(D) Failure to object to extraordinary security measures utilized by trial court;

(E) Failure to submit supporting documentation to show Mr. Shea was indigent and obtain an investigator;

(F) Failure to object to lack of jurisdiction;

(G) Failure to request modified Allen instruction;

(H) Insufficient evidence to convict of habitual criminal allegations;

(I) Failure to properly challenge a violation of Colorado's Uniform Mandatory Disposition of Detainers Act;

(J) Counsel represented conflicting interests and disclosed the defense strategies to a witness for the prosecution;

(K) Failure to call available expert witnesses;

(L) Failure to object and preserve for appeal the use of an unqualified gang expert by the State;

(M) Stipulation to a criminal witnesses [sic] testimony thereby depriving Mr. Shea's jury from assessing the witnesses [sic] credibility.

(2) Mr. Shea was denied his Sixth and Fourteenth Amendment right to effective assistance of counsel when a court appointed investigator was denied even though Mr. Shea was indigent.

(ECF No. 1).

In the Pre-Answer Response, Respondents concede that the Application is timely under the AEDPA one-year limitation period set forth in 28 U.S.C. § 2244(d). (ECF No. 8 at 4). Respondents further concede that Mr. Shea has exhausted state court remedies for claims (1)(A) - (1)(C), claims (1)(E) - (1)(K), and claim (1)(M). (Id. at 9). Respondents contend, however, that claims (1)(D) and (1)(L) are procedurally defaulted. (Id.). Respondents also argue that claim two is the same claim as claim (1)(E) and, therefore, it should not be considered separately. (Id. at 12).

II. Exhaustion 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, 843 (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). 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)(D) and (1)(L)

Respondents contend that because Applicant failed to exhaust claims (1)(D) and (1)(L) and there is no longer an available state court remedy, the claims are procedurally barred. The Court agrees.

1. Claim (1)(D)

Claim (1)(D) alleges ineffective assistance of counsel based on counsel's failure to object to extraordinary security measures utilized by the trial court. The claim was raised in Mr. Shea's motion for postconviction relief (see ECF No. 8-2 at 12-13), but he failed to present it on appeal (see ECF No. 8-5). As such, if any state remedy existed, the claim would be unexhausted. However, no state remedy exists because any attempt to exhaust the claim now would be denied as time barred, successive, and an abuse of process. See Colo. Rev. State. § 16-5-402 (2015) (imposing three-year limitation period on non-class 1 felonies); Colo. R. Crim. P. 35(c)(3)(VII) ("The court shall deny any claim that could have been presented in an appeal previously brought."); People v. Rodriguez, 914 P.2d 230, 254-55 (1996). These state procedural grounds are independent and adequate. See LeBere v. Abbott, 732 F.3d 1224, 1233 n.13 (10^th Cir. 2013) (noting numerous cases have indicated Colorado's rule barring claims that could have been raised previously is an independent and adequate state ground precluding federal habeas review). As such, Claim 1(D) is procedurally defaulted and cannot be considered unless Mr. Shea demonstrates either cause and prejudice or a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750; Cummings, 506 F.3d at 1224.

2. Claim (1)(L)

Claim One (1)(L) is an ineffective assistance of counsel claim based on counsel's failure to object and preserve for appeal the use of an unqualified gang expert by the...