Trimble v. Trani
| Decision Date | 05 August 2011 |
| Docket Number | Civil Action No. 09-cv-01943-REB |
| Parties | MIGUEL TRIMBLE, Applicant, v. TRAVIS TRANI, and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents. |
| Court | U.S. District Court — District of Colorado |
Applicant, Miguel Trimble, is a prisoner in the custody of the Colorado Department of Corrections (DOC) who was incarcerated at the Limon, Colorado, correctional facility when he initiated this action by filing pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (application) [#1]1 challenging the validity of his convictions and sentence in Denver District Court case number 99CR4106. He currently is incarcerated at the Arkansas Valley Correctional Facility. In his habeas corpus application, he asserted six claims, including twenty-two subclaims in claim four. He has paid the $5.00 habeas corpus filing fee.
On August 19, 2009, United States magistrate judge Boyd N. Boland ordered Respondents to file within twenty days a pre-answer response limited to addressing theaffirmative defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). On August 21, 2009, Mr. Trimble filed a supplement to his application. On September 15, 2009, after being granted an extension of time, Respondents filed their pre-answer response. On October 1, 2009, Mr. Trimble submitted a reply and supplemental reply.
On October 23, 2009, magistrate judge Boland ordered Respondent to supplement within twenty days their pre-answer response with any procedural default arguments they may seek to raise with respect to Mr. Trimble's fourth claim, failing which any arguments as to procedural default may be waived. On November 12, 2009, Respondents filed a supplemental pre-answer response. On December 10, 2009, Mr. Trimble filed a reply to the supplemental pre-answer response in which he included, inter alia, a request for an evidentiary hearing. On December 16, 2009, magistrate judge Boland denied the request for an evidentiary hearing and ordered Mr. Trimble to file within twenty-one days a supplemental reply that addressed the procedural default arguments raised by Respondents. On January 11, 2010, Mr. Trimble filed a supplemental reply.
On March 8, 2010, the court dismissed the case in part and drew the remaining claims and the case to a district judge and a magistrate judge. The court dismissed as procedurally barred subclaims eight and twenty of claim four and subclaim twenty-two of claim four as repetitive. The court drew claims one, two, and three; claim four subclaims one through seven, nine through nineteen, and twenty one; and claims five and six. These claims remain pending.
On March 9, 2010, the court ordered Respondents to file an answer by March 15,2010. The court later granted Respondents' motions for an extension of time up to and including April 9, 2010. On April 9, Respondents filed the answer [#33]. On May 11, 2010, Mr. Trimble filed a reply [#36]. On July 21, 2010, he filed a traverse [#39]. On October 15, 2010, the clerk of the court for the Denver District Court was ordered to provide the state court record. On November 3, 2010, the state court record was filed.
On May 11, 2011, Mr. Trimble filed a motion for stay [#45]. On May 13, 2011, the court ordered Respondents to respond to the motion for stay. On May 24, 2011, Respondents filed their response [#47].
In considering Mr. Trimble's filings, the court is mindful that he is proceeding pro se and, therefore, the court construes his pleadings liberally and holds them to a "less stringent standard" than pleadings drafted by lawyers in accordance with Haines v. Kerner, 404 U.S. 519, 520 (1972). Such liberal construction is intended merely to overlook technical formatting errors, poor writing style, and other defects in the party's use of legal terminology, citation, and theories. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however, cannot act as a pro se litigant's legal advocate, and a pro se litigant retains the burden to allege sufficient facts to state a viable claim. Furthermore, pro se status does not relieve a party of the duty to comply with the various rules and procedures governing litigants and counsel or the requirements of the substantive law, and in these regards, the court must apply the same standard to counsel licensed to practice law and to a pro se party. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). For the reasons stated below, the court will deny the motion for stay, and dismiss pending claims claim one, two, and three; claim four subclaims one throughseven, nine through nineteen, and twenty one; and claims five and six.
The background of this case was summarized by the Colorado Court of Appeals in People v. Trimble, No. 02CA0171 (Colo. Ct. App. Dec. 23, 2004) (not published), as follows:
A jury convicted Mr. Trimble of felony murder and attempted aggravated robbery in Denver District Court case number 99CR4106. He was sentenced to life imprisonment without the possibility of parole. On December 23, 2004, the Colorado Court of Appeals affirmed his convictions on direct appeal. See No. 02CA0171 (answer, ex. B). On August 22, 2005, the Colorado Supreme Court denied certiorari review. See No. 05SC331 (answer, ex. C).
Generally, a conviction becomes final following a decision by the state court of last resort on direct appeal when the United States Supreme Court denies review, or, if no petition for writ of certiorari is filed, when the time for seeking such review expires. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Pursuant to Rule 13.1 of the Rules of the Supreme Court of the United States, Mr. Trimble had ninety days to seek review in the United States Supreme Court after the Colorado Supreme Court denied his petition for writ of certiorari on direct appeal on August 22, 2005, but he did not do so. Therefore, Mr. Trimble's conviction became final on November 21, 2005, when the time for filing a petition for writ of certiorari in the United States Supreme Court expired.2
On February 1, 2006, Mr. Trimble filed a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure, which the trial court denied without a hearing on March 1, 2006. On July 12, 2007, the Colorado Court of Appeals affirmed. See People v. Trimble, No. 06CA0670 (Colo. Ct. App. July 12, 2007) (not published) (answer, ex. F). On October 29, 2007, the Colorado Supreme Court denied certiorari review. See No. 07SC710 (answer, ex. H).
In August, 2008, Mr. Trimble filed a second Colo. R. Crim. P. 35(c) motion, which the trial court denied without a hearing. On July 2, 2009, the Colorado Court of Appeals affirmed. See People v. Trimble, No. 08CA1839 (Colo. Ct. App. July 2, 2009) (not published) (answer, ex. K). He did not seek certiorari review in the Colorado Supreme Court.
On August 14, 2009, Mr. Trimble filed his application with this court, whichdismissed the application in part on March 8, 2010. In the March 8 partial dismissal order, the court found the application to be timely, and dismissed three portions of claim four as follows: subclaims eight and twenty as unexhausted and procedurally barred and subclaim twenty-two as repetitive. The court drew for further proceedings the case and the remaining exhausted claims as follows: Claims one, two, three, five, six, and the following portions of claim four: subclaims one through seven, nine through nineteen, and twenty-one.
Before addressing the merits of Mr. Trimble's exhausted and remaining claims, the court first will address the motion for stay.
Mr. Trimble asks this Court to stay the instant habeas corpus proceeding so that he may return to the state courts to exhaust a claim pursuant to Graham v. Florida, 130 S. Ct. 2011 (2010), decided on May 17, 2010, and modified on July 6, 2010. In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court held that a district court has discretion to stay a mixed petition while the petitioner returns to state court to exhaust his unexhausted claims. Id. at 277. However, "stay and abeyance should be available only in limited circumstances." Id. Pursuant to Rhines, Mr. Trimble's motion to stay this action may be granted only if: (1) he has good cause for his failure to exhaust his claims first in state court; (2) the unexhausted claims potentially are meritorious; and (3) there is no indication that he has engaged in intentionally dilatory litigation tactics. Id. at 278. Mr. Trimble fails to demonstrate that a stay is appropriate in this case because he does not address the first and third factors set forth in Rhines, and his claim lacks merit under the second factor, i.e.,...
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