Wellman v. Colo. Dep't of Corr.

• Decision Date: 22 March 2018
• Docket Number: Civil Action No. 17-cv-2222-WJM
• Parties: JIMMIE WELLMAN, Applicant, v. COLORADO DEPARTMENT OF CORRECTIONS, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

JIMMIE WELLMAN, Applicant, v. COLORADO DEPARTMENT OF CORRECTIONS, andTHE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

Civil Action No. 17-cv-2222-WJM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 22, 2018

Judge William J. Martínez

ORDER TO DISMISS IN PART AND FOR ANSWER

Applicant, Jimmie Wellman, is in the custody of the Colorado Department of Corrections (CDOC) at the Arkansas Valley Correctional Facility in Ordway, Colorado. He initiated this action on September 14, 2017, by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Docket No. 1) challenging the validity of a convictions and sentence imposed in the District Court of Denver County, Colorado. Mr. Wellman filed an Amended § 2254 Application on November 16, 2017. (Docket No. 7).

On November 22, 2017, U.S. Magistrate Judge Gordon P. Gallagher 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 December 11, 2017. (Docket No. 12). Applicant filed a Reply on February 23, 2018, after obtaining an extension of time. (Docket No. 20).

Mr. Wellman's filings are construed 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 (10th Cir. 1991). However, the court cannot act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the Application, in part.

I. Background and State Court Proceedings

In October 2007, Mr. Wellman was convicted by a jury in Denver County District Court Case No. 06CR977 of attempted first degree murder, assault, menacing, and witness intimidation and tampering. (Docket No. 12-1 at 2; No. 12-5 at 13). He was sentenced to an aggregate 70-year prison term. (Id.). The Colorado Court of Appeals affirmed Applicant's convictions in People v. Jimmie Wellman, No. 07CA2366 (Colo. App. Sept. 9, 2010) (unpublished) (Wellman I) (Docket No. 12-5). The Colorado Supreme Court denied Applicant's petition for certiorari review on January 18, 2011. (Docket No. 12-6). The United States Supreme Court denied certiorari review on June 13, 2011. (Docket No. 12-7).

Mr. Wellman filed a motion for post-conviction relief on July 13, 2011, which the state district court denied on January 9, 2014. (Docket No. 12-1 at 4, 8). The Colorado Court of Appeals affirmed in People v. Jimmie Wellman, No. 14CA0358 (Colo. App. Jan. 28, 2016) (unpublished) (Wellman II). (Docket No. 12-11). Applicant's petition for certiorari review was denied by the Colorado Supreme Court on September 12, 2016. (Docket No. 12-12).

Mr. Wellman filed another post-conviction motion on December 30, 2016, which was denied by the state district court on February 2, 2017. (Docket No. 12-1 at 10). Hedid not appeal. Applicant filed his third and fourth state post-conviction motions on September 5, 2017 and September 26, 2017, which were denied on September 8, 2017 and September 27, 2017, respectively. (Id.). Applicant did not appeal either order.

Mr. Wellman initiated this § 2254 proceeding on September 14, 2017. He asserts the following claims for relief in his Amended § 2254 Application:

(1) Applicant's constitutional rights to counsel, a fair trial, and due process were violated when the state district court deprived him of his right to counsel because he never validly waived his right to counsel, or if he did, the waiver was later revoked;

(2) Applicant was denied his constitutional right to a fair trial because the trial judge was biased against him;

(3) Applicant's due process rights were violated when he was tried without any meaningful opportunity to prepare his defense;

(4) Applicant's equal protection and due process rights were violated when he was forced to wear jail clothing and shackle restraints throughout his three-day trial;

(5) Applicant was denied his Sixth Amendment right to effective assistance of counsel on appeal when appellate counsel omitted meritorious claims and inadequately raised a claim of a denial of self-representation.

(Docket No. 7 at 5-12).

In the Pre-Answer Response, Respondents concede that the Application is timely under the one-year limitation period set forth in 28 U.S.C. § 2244(d). (Docket No. 12 at 4-7). Respondents further concede that Applicant exhausted state court remedies for claims one, two and three. (Id. at 10-13). Respondents argue, however, that claims four and five are procedurally defaulted in the state courts and, therefore, those claims are barred from merits review by this Court. (Id. at 13-16).

II. Standard of Review

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). 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).

A claim that has been procedurally defaulted in the state courts on an independent and adequate state procedural ground is barred 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 v. Thompson, 501 U.S. 722, 750 (1991); Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007). A procedural rule is independent if it is based upon state law, rather than federal law. Anderson v. Att'y Gen.,342 F.3d 1140, 1143 (10th Cir. 2003) (citing English v. Cody, 146 F.3d 1257, 1259 [10th Cir.1998]). A state procedural rule is adequate if it was "'firmly established and regularly followed by the time as of which it is to be applied.'" Id. (quoting Walker v. Att'y Gen., 167 F.3d 1339, 1344 (10th Cir.1999)). The applicant bears the burden of specifically alleging the inadequacy of a state procedural law. Fairchild v. Workman, 579 F.3d 1134, 1143 (10th Cir. 2009).

An applicant'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).

III. Analysis

A. Claim Four

In claim four, Mr. Wellman asserts that his equal protection and due process rights were violated when he was forced to wear jail clothing and shackle restraints throughout his three-day trial. (Docket No. 7 at 10-11). Respondents contend that the claim is procedurally defaulted because the state appellate court denied the claim on a state procedural ground, without reaching the merits. (Docket No. 12 at 13-14).

On direct appeal, Mr. Wellman did not assert a constitutional violation based on being forced to wear jail clothing and shackle restraints at trial. (See generally Docket No. 12-2, Opening Brief in Wellman I). In his state post-conviction proceeding, Applicant argued that his due process rights were violated when he was forced to wear shackles, leg braces, jail clothing and a stun belt during his trial. (Docket No. 12-8 at 15-20).

In Wellman II, the Colorado Court of Appeals did not reach the merits of Applicant's claim. Instead, the state appellate court concluded that the claim was successivebecause it could have been raised on direct appeal. (Docket No. 12-11 at 6-9). The court stated:

Under Crim. P. 35(c)(6)(VI) and (VII), subject to certain specified exceptions, a court must deny any claim that either was raised and resolved in a prior appeal or postconviction proceeding or that could have been presented in a previously brought appeal of postconviction proceeding. People v. Wilson, ___ P.3d ___ (Colo. App. No. 09CA1073, June 23, 2011) (postconviction claims of trial error that could have been raised on direct appeal, but were not, are successive under Crim. P. 35(c)(3)(VII), aff'd 349 P.3d 257 (Colo. 2015); see People v. Canody, 166 P.3d 218, 221 (Colo. App. 2007) (claims that are ordinarily raised on direct appeal cannot be raised for the first time in a Crim. P. 35 motion).

(Id. at 7).

Colo. Crim. P. Rule 35(c)(3)(VII) is a state procedural rule that was firmly established and applied regularly by the Colorado courts at the time of Applicant's post-conviction proceeding. See, e.g., Ellis v. Raemisch, 872 F.3d 1064, 1093 n.7 (10^th Cir. 2017) (proceeding "on the assumption that the provisions of Rule 35(c)(3)(VII) at issue here satisfy the independence and adequacy criteria"); see also Welch v. Milyard, No. 11-1214, 436 F. App'x. 861, 869 (10th Cir. 2011) (unpublished) ( "[W]ere Mr. Welch to attempt to raise this claim in the [Colorado] state trial court at this juncture, it would be dismissed. . . . Thus, Mr. Welch has procedurally defaulted his claim . . . . ") (citations omitted)); Gonzales v. Hartley, No. 10-1250, 396 F. App'x. 506, 508 (10th Cir. 2010) (unpublished) ("Because Colorado law now prevents him from presenting these claims, see Colo. R. Crim. P. 35(c)(3)(VII),...