Filed: Nov. 23, 2012
Latest Update: Feb. 12, 2020
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS November 23, 2012 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court MARK LEE WILKINSON, Petitioner-Appellant, v. No. 12-1269 (D.C. No. 1:11-CV-00454-REB) RAE TIMME, Warden at Fremont (D. Colo.) Correctional; JOHN SUTHERS, Attorney General of the State of Colorado, Respondents-Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY* Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges. Mark Lee Wilkinson, a
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS November 23, 2012 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court MARK LEE WILKINSON, Petitioner-Appellant, v. No. 12-1269 (D.C. No. 1:11-CV-00454-REB) RAE TIMME, Warden at Fremont (D. Colo.) Correctional; JOHN SUTHERS, Attorney General of the State of Colorado, Respondents-Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY* Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges. Mark Lee Wilkinson, a C..
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS November 23, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MARK LEE WILKINSON,
Petitioner-Appellant,
v. No. 12-1269
(D.C. No. 1:11-CV-00454-REB)
RAE TIMME, Warden at Fremont (D. Colo.)
Correctional; JOHN SUTHERS, Attorney
General of the State of Colorado,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Mark Lee Wilkinson, a Colorado state prisoner proceeding pro se, requests a
certificate of appealability (COA) to appeal the district court’s denial of his application
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We deny a COA, deny
Wilkinson’s motion for a stay and abeyance, and dismiss this matter.
I. Background
Wilkinson was convicted by jury trial on three counts of sexual assault on a child
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
by one in a position of trust, three counts of sexual assault on a child, three counts of
aggravated incest, one count of sexual assault on a child by one in a position of trust as
part of a pattern of sexual abuse, and one count of sexual assault on a child as part of a
pattern of abuse. He was sentenced to an indeterminate term of fifty-two years to life in
prison. The Colorado Court of Appeals affirmed his conviction and sentence on direct
appeal. The Colorado Supreme Court denied certiorari review. Wilkinson sought
postconviction relief in the Colorado trial court, but the state trial court denied all of his
postconviction motions. The Colorado Court of Appeals affirmed the trial court’s order
denying postconviction relief, and the Colorado Supreme Court denied Wilkinson’s
petition for writ of certiorari in the postconviction proceedings.
On February 23, 2011, Wilkinson filed a habeas petition in federal district court,
alleging seven claims for relief:
1. Counsel was ineffective during the plea bargaining
process by failing to fully explain the benefits of the
proposed plea agreement.
2. Counsel was ineffective during pretrial, trial,
sentencing, and appellate proceedings because
(a) Counsel failed to preserve Mr. Wilkinson’s
right to a preliminary hearing.
(b) Counsel failed to protect Mr. Wilkinson’s right
to a speedy trial by failing to enter a timely plea
of not guilty.
(c) Counsel failed to conduct an adequate
investigation, which led to exculpatory evidence
not being presented.
(d) Counsel failed to prepare for and object to the
testimony of the prosecution’s expert witness.
(e) Counsel failed to endorse a defense expert to
challenge the testimony of the prosecution’s
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expert witness.
(f) Counsel failed to obtain and compel essential
testimony from the victim’s mother.
(g) Counsel failed to research and understand the
rules of procedure and evidence and the
applicable law.
(h) Counsel failed to participate in the trial at an
acceptable level.
(i) Counsel failed to exclude evidence of Mr.
Wilkinson’s sexual orientation.
(j) Counsel failed to develop any discernable
theory of defense.
(k) Counsel on direct appeal failed to argue that Mr.
Wilkinson was denied a fair trial because
counsel failed to gain admissibility of social
services reports that would have supported a
theory of defense.
(l) Counsel on direct appeal failed to challenge the
trial court’s ruling barring statements made by
the victim to the family therapist.
(m) Counsel on direct appeal failed to challenge the
trial court’s ruling permitting the claim that Mr.
Wilkinson’s unrelated travel to Florida
constituted flight to avoid prosecution.
(n) Counsel on direct appeal failed to raise properly
the issue of multiple convictions for one
offense.
3. His Sixth Amendment right to a fair and impartial jury
was violated by admission of evidence of his sexual
orientation.
4. His Sixth Amendment right to compulsory process was
violated by the trial court’s failure to compel the
victim’s mother to appear and testify.
5. His Sixth Amendment right to a speedy trial was
violated.
6. His right to a fair trial was violated when the trial court
allowed an unendorsed expert witness to testify against
him.
7. His sentence was aggravated illegally in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Blakely v. Washington, 542 U.S. 296 (2004).
3
Rawle at 707-08.
On August 2, 2011, the district court issued an order dismissing Wilkinson’s
habeas petition in part. The district court dismissed Wilkinson’s claims 1, 2(a)-(c), (f)-
(n), 3, 4, and 6 as unexhausted and procedurally barred because Wilkinson failed to raise
those claims in his postconviction appeal with the Colorado Court of Appeals. Wilkinson
raised these claims in a supplemental motion that was attached as an appendix to his brief
to the Colorado Court of Appeals. Wilkinson referenced the supplemental motion in a
footnote in his brief: “Every one of the IAC allegations in the motion and supplement . . .
were proven at the hearing. For lack of space, this brief will not detail each and every
one. The Supplement to the motion is attached as Appendix A.” R. at 716-17. The
district court found that the referenced motion in the brief’s appendix did not satisfy the
fair presentation requirement, and as such, the claims were not exhausted. Additionally,
the district court found that claim three was unexhausted because that claim was not
presented to the state courts as a federal constitutional claim and because Wilkinson
presented to the state courts a different claim than he raised in federal court. The district
court also found that claim six was unexhausted because it was not raised on direct appeal
to the Colorado Court of Appeals as a federal constitutional issue.
On October 11, 2011, Wilkinson filed a Motion for Leave to Amend Application
for a Writ of Habeas Corpus, asking the district court to reconsider its finding that several
of his claims were unexhausted and procedurally barred. In the same motion, Wilkinson
also sought leave to amend his habeas application to assert two additional claims for
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relief. In claim eight, Wilkinson contended that his rights were violated when the trial
court denied his motion for a new trial based on newly discovered evidence, and in claim
nine, Wilkinson contended that his convictions on multiple counts violated double
jeopardy. On February 13, 2012, the district court issued an order denying Wilkinson’s
motion to reconsider, denying his motion to amend the habeas application to add claim
nine, and granting his motion to amend the habeas application to add claim eight. The
district court found that Wilkinson’s claim nine did not relate back to his claim seven
because the two questions did not share a common core of operative facts.
On June 1, 2012, the district court denied Wilkinson’s habeas petition in full and
denied a COA.
II. Analysis
Wilkinson seeks a COA on five issues: (1) whether the district court erred in its
ruling that claims 1, 2(a)-(c), 2(f)-(n), 3, 4, and 6 were unexhausted and procedurally
barred; (2) whether the district erred by unreasonably applying Strickland v. Washington,
466 U.S. 668 (1984), to Wilkinson’s claims of ineffective assistance of state trial counsel
and state appellate counsel; (3) whether the district court erred by unreasonably applying
Barker v. Wingo,
407 U.S. 514 (1972), to his claim of a speedy trial violation; (4)
whether the district court erred by unreasonably applying Apprendi v. New Jersey,
530
U.S. 466 (2000), and Blakely v. Washington,
542 U.S. 296 (2004), to Wilkinson’s claim
that his sentence was unconstitutionally aggravated; and (5) whether the district court
erred in its ruling that Wilkinson’s claim nine, that his sentences violated double
5
jeopardy, was time-barred because it did not relate back to claim seven.
A petitioner seeking habeas relief must obtain a COA before this court may
consider the merits of his appeal. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)
(“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the
merits of appeals from habeas petitioners.”). To be entitled to a COA, Wilkinson must
make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this showing, the petitioner must demonstrate that “reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.”
Miller-El, 537 U.S. at 336 (quotations omitted).
When the district court denies a habeas petition on procedural grounds without
reaching the underlying constitutional claim, this court will issue a COA only “if the
prisoner shows, at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right, and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 478 (2000).
A. Exhaustion
To obtain habeas relief, a petitioner must exhaust state remedies, or demonstrate
that there is an absence of available state remedies or that circumstances exist that render
the state process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1).
The exhaustion requirement is satisfied “once [a] federal claim has been fairly presented
6
to the state courts.” Picard v. Connor, 404 U.S. 270, 275 (1971). See also Dever v. Kan.
State Penitentiary,
36 F.3d 1531, 1534 (10th Cir. 1994) (“The exhaustion requirement is
satisfied if the federal issue has been properly presented to the highest state court, either
by direct review of the conviction or in a postconviction attack.”). Petitioners must
present the claims as federal constitutional claims in state court in order to satisfy the
exhaustion requirement. Duncan v. Henry,
513 U.S. 364, 365-66 (1995).
The district court dismissed Wilkinson’s claims 1, 2(a)-(c), 2(f)-(n), 3, 4, and 6 as
unexhausted because an appellate brief referencing or implicitly incorporating a
supplemental motion filed in the trial court fails to satisfy the fair presentation
requirement. R. at 717-22. We agree. The Supreme Court has held that the exhaustion
requirement is not satisfied when a petitioner’s certiorari petition to the state supreme
court does not assert claims that were brought in the state trial or appellate courts.
Baldwin v. Reese, 541 U.S. 27, 31 (2004). It is not enough for exhaustion purposes that
the state supreme court had the opportunity to read the lower state court opinions.
Id.
Similarly, this circuit has held that petitioners cannot incorporate by reference claims or
arguments that they had made in filings with the district court. Gaines-Tabb v. ICI
Explosives, USA, Inc.,
160 F.3d 613, 623-24 (10th Cir. 1998) (holding that allowing
litigants to adopt district court filings would “unnecessarily complicate the task of an
appellate judge”); Argota v. Miller, 424 F. App’x 769, 771 (10th Cir. 2011) (declining to
consider the petitioner’s claims that he sought to incorporate “merely by referencing the §
2254 habeas petition that he filed in the district court”). We have also held that the
7
exhaustion requirement is not satisfied when the petitioner merely attached his state
habeas petition and the state district court order to a writ of certiorari petition to the state
supreme court. Jernigan v. Jaramillo, 436 F. App’x 852, 856-57 (10th Cir. 2011). Jurists
of reason would not debate that the district court properly dismissed Wilkinson’s claims
1, 2(a)-(c), 2(f)-(n), 3, 4, and 6 as unexhausted, and we deny a COA on this issue.
B. Motion to Amend to Add Claim Nine
Wilkinson also appeals the district court’s ruling denying his motion to amend his
habeas petition to add claim nine. The district court found that claim nine was time-
barred and that it did not relate back to claim seven because the two questions “d[id] not
share a common core of operative facts.” R. at 1027. We have held that
an untimely amendment to a [habeas petition] which, by way
of additional facts, clarifies or amplifies a claim or theory in
the original motion may, in the District Court’s discretion,
relate back to the date of the original motion if and only if the
original motion was timely filed and the proposed amendment
does not seek to add a new claim or to insert a new theory into
the case.
United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000) (quotation and
alterations omitted); see also Woodward v. Williams,
263 F.3d 1135, 1142 (10th Cir.
2001) (applying Espinoza-Saenz’s relation-back rule to § 2254 petitions). We conclude
that the district court did not abuse its discretion in denying Wilkinson’s motion to amend
his habeas petition to add claim nine. In claim nine, Wilkinson alleged that his
convictions on multiple counts violated double jeopardy, whereas in claim seven,
Wilkinson alleged that his sentence was aggravated illegally in violation of Apprendi and
8
Blakely. Jurists of reason would not debate whether the district court’s procedural ruling
was correct, as Wilkinson’s claim nine does not merely “clarif[y] or amplif[y] a claim or
theory in the original motion.” Espinoza-Saenz, 235 F.3d at 505 (quotation and alteration
omitted). We deny a COA on the issue of whether district court erred in finding that
claim nine was time-barred.
C. Claims Dismissed on the Merits
Wilkinson argues that the district court erred by unreasonably applying Strickland
to his claims of ineffective assistance of state trial counsel and state appellate counsel,
that the district court erred by unreasonably applying Barker v. Wingo to his claim of a
speedy trial violation, and that the district court erred by applying Apprendi and Blakely
to his claim that his sentence was unconstitutionally aggravated.
This court has reviewed Wilkinson’s application for a COA and appellate brief, the
district court’s orders, and the entire record on appeal pursuant to the framework set out
by the Supreme Court in Miller-El and concludes that Wilkinson is not entitled to a COA
on these claims. The district court’s resolution of Wilkinson’s claims is not reasonably
subject to debate and the claims are not adequate to deserve further proceedings.
Accordingly, Wilkinson has not “made a substantial showing of the denial of a
constitutional right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).
D. Motion to Stay and Abey
While Wilkinson’s COA petition was pending, he filed a Motion for Stay and
Abeyance with this court on November 16, 2012, asking for a stay and abeyance of his
9
federal habeas petition. Wilkinson explains that on July 19, 2012, he filed a Motion to
Correct Sentence with the state trial court, arguing that the sentence imposed was illegal
on various grounds: (1) the court improperly imposed a sentence of mandatory parole;
(2) the sentence imposed was illegal because the lower portion of the indeterminate
sentence exceeds the statutory presumptive range; (3) the court lacked subject matter
jurisdiction; (4) the complaint was substantially flawed; and (5) the court incorrectly
advised the jury. On October 17, 2012, the state trial court granted only the first claim of
his motion, and the state trial court ordered that the mittimus be amended to reflect
discretionary parole for several counts of his conviction. The state trial court denied all
other claims in his motion.
In his motion for a stay and abeyance, Wilkinson argues the correction of his
sentence could have a direct effect on his federal habeas petition. Citing Rhines v.
Weber, 544 U.S. 269, 275-77 (2005), Wilkinson argues that a federal court has the
discretion to enter a stay and allow the state court to resolve issues in the first instance.
As the Supreme Court explained in Rhines, stay and abeyance should only be allowed in
limited circumstances and is only appropriate if the court finds “there was good cause for
the petitioner’s failure to exhaust his claims first in state court” and if the petitioner’s
unexhausted claims are potentially meritorious.
Rhines, 544 U.S. at 277-78. We
conclude that the state trial court’s correction of Wilkinson’s sentence has no effect on
our denial of his COA on the issue of whether the district court erred in its ruling that
claims 1, 2(a)-(c), 2(f)-(n), 3, 4, and 6 of his habeas petition were unexhausted and
10
procedurally barred. At the time that he filed his habeas petition with the federal district
court, Wilkinson had failed to fully exhaust his state remedies because he had failed to
satisfy the fair presentation requirement, and there was no good cause for Wilkinson’s
failure to exhaust his claims in the state court. We also conclude that the state trial
court’s correction of his sentence has no effect on our denial of his COA on the other four
issues of his habeas petition. Accordingly, we deny Wilkinson’s motion for a stay and
abeyance.
III. Conclusion
For the foregoing reasons, we DENY Wilkinson’s application for a COA, DENY
his motion for a stay and abeyance, and DISMISS this matter.
Entered for the Court
Mary Beck Briscoe
Chief Judge
11
