KRISTEN L. MIX, Magistrate Judge.
This case is before this Court pursuant to the Order of Reference entered March 8, 2015, and the parties' unanimous consent to disposition of this action by a United States Magistrate Judge [##16, 18]
Applicant, Anthony R. Murphy, a state prisoner in the custody of the Colorado Department of Corrections, currently is incarcerated at the Arrowhead Correctional Center in Canon City, Colorado. Applicant initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, in which he challenges the validity of his conviction and sentence in Jefferson County District Court Case No. 09CR2523.
On January 6, 2015, 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 February 9, 2015 (ECF No. 11). Applicant filed a Reply on March 23, 2015 (ECF No. 12).
The Court must construe the Application liberally 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 (10
Evidence at trial established that a confidential police informant called a man he knew as a drug dealer and asked to buy cocaine. The dealer told the informant where to meet his deliveryman. The dealer described that person and the car he would be driving. Applicant, who met the description given by the dealer, arrived at the designated location in a car that matched the dealer's description. The informant entered the car. Before any drugs or money exchanged hands, police surrounded the car and arrested Applicant. Twelve grams of crack cocaine, subdivided into twenty-seven individual packets, were found inside the car in the driver's side door pocket and on the floor in front of the driver's seat. All of the packets appeared to be roughly the same weight.
On March 8, 2010, Mr. Murphy proceeded to trial on one charge: possession with intent to distribute a schedule II controlled substance, with a prior conviction. After a two day trial, the jury found Applicant guilty; he later was sentenced to 16 years imprisonment. Applicant filed a direct appeal to the Colorado Court of Appeals (CCA) raising three claims (#11-5). The CCA affirmed his conviction in People v. Murphy, (Colo. App. No. 10CA1552, May 10, 2012) (unpublished) (Murphy I) (#11-9). He filed a petition for certiorari in the Colorado Supreme Court (CSC) (#11-7), which was denied by that court on September 17, 2012 (#11-6).
On November 30, 2011, Mr. Murphy filed a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure, which was denied without a hearing. Applicant appealed and on March 13, 2014, the CCA affirmed the lower court. People v. Murphy (Colo. App. No. 13CA0233, March 13, 2014) (unpublished) (Murphy II) (#11-4). Applicant's petition for certiorari was denied by the CSC on November 24, 2014 (#11-2).
Applicant filed the instant action on December 19, 2014 wherein he raises the following claims, as reorganized by Respondents in their Answer.
Before this Court can address the merits of Applicant's claims, it is necessary to examine whether this Application fulfills the applicable procedural requirements under the federal habeas corpus statute.
The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed under the one-year limitations period applicable to such petitions. In this regard, the federal habeas corpus laws impose a one-year limitations period applicable to state prisoners. See 28 U.S.C. § 2244(d) (as amended).
It is well known that a state prisoner may not be granted federal habeas corpus relief unless he demonstrates that he is in custody in violation of the United States Constitution or federal law. See 28 U.S.C. § 2254(a). See also Smith v. Phillips, 455 U.S. 209, 221 (1982) ("Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.") (internal citations moittes);
In addition, the provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. To comply with the exhaustion requirement, a state prisoner first must have "fairly presented" his constitutional and federal law issues to the state courts through direct appeal, collateral review, state habeas proceedings, mandamus proceedings, or other available procedures for judicial review. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989). To "fairly present" a claim, a petitioner must present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 277-78 (1971). 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," Harless, 459 U.S. at 6. 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). Even if a state court fails to consider the constitutional claim, it is still exhausted as long as the state court had the opportunity to address it.
In addition, in order to exhaust his claims, a habeas corpus petitioner must "properly present" his claims to the state courts. In this regard, a petitioner must invoke "one complete round" of the applicable State's appellate review process, thereby giving the courts of that State "one full opportunity" to resolve any issues relevant to such claims. O'Sullivan v. Boerckel, 526 U.S. 838, 845(1999). 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 (10
Beyond questions of exhaustion, a federal court may be precluded from reviewing claims under the "procedural default doctrine." Gray v. Netherland, 518 U.S. 152, 162 (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991). Like the exhaustion requirement, the procedural default doctrine was developed to promote our dual judicial system and, in turn, it is based on the "independent and adequate state law grounds" doctrine.
Cone v. Bell, 556 U.S. 449, 465 (2009) (internal quotations and citations omitted).
"A state procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision. . . . For the state ground to be adequate, it must be strictly or regularly followed and applied evenhandedly to all similar claims." Hickman v. Spears, 160 F.3d 1269, 1271 (10
Moreover, if a habeas applicant "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, 501 U.S. 722 at 735 n.1; see also Harris v. Reed, 489 U.S. 255, 269-70 (1989); Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10
An applicant whose constitutional claims have not been addressed on the merits due to procedural default can overcome the default, thereby allowing federal court review, if he or she can demonstrate either: 1) "cause" for the default and "actual prejudice" as a result of the alleged violation of federal law; or 2) failure to consider the claims will result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750. To demonstrate cause for his procedural default, an applicant must show that some objective factor external to the defense impeded his ability to comply with the relevant procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986); United States v. Salazar, 323 F.3d 852, 855 (10
A fundamental miscarriage of justice occurs when "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496; see also United States v. Cervini, 379 F.3d 987, 991-92 (10
Respondents assert that the Application was timely filed in the instant action. Accordingly, the Court will review Mr. Murphy's claims in light of the prerequisites for habeas corpus relief set forth above.
As stated above, this Court may review only claims that have been fairly and properly reviewed by the state courts. Because Applicant's claims in the instant Petition are convoluted and repetitive, the Court will review the claims Applicant presented to the state courts to determine his eligibility for review here.
In his direct review, Applicant presented the following three claims.
Applicant's opening brief (direct review) (ECF No. 11-9). He presented all of these claims to the CCA (ECF No. 11-8) and then to the CSC (ECF No. 11-7). All of these claims were reviewed on the merits by the CCA. Thus, these claims have been exhausted and are ripe for review by this Court.
In his postconviction proceeding, Applicant presented the following claims.
ECF No. 11-4.
In its review of these claims, the CCA determined that, other than the ineffective assistance of counsel claims, the district court properly denied them as successive because the claims were, or could have been, raised on direct appeal in accordance with Colo. R. Crim. P. 35(c)(3)(VI)-(VII) (a court must deny any claim that was, or could have been, raised and resolved in a prior appeal or postconviction proceeding on behalf of the same defendant). ECF No. 11-4, p. 4. The CCA then proceeded to review Applicant's IAC claims and denied them on the merits. Consequently, Applicant's IAC claims raised in his post-conviction proceeding have been exhausted and are ripe for review by this Court. However, as discussed below, claims two through eight presented to the state courts in his postconviction proceeding have been procedurally defaulted (except his "for-cause" juror challenge, which was exhausted on direct review).
In this regard, the CCA rejected claims two through eight pursuant to an adequate and independent state ground; namely, that they were or could have been raised on direct appeal citing Crim. P. 35(c)(3)(VI)-(VII). Under Rule 35(c)(3)(VI), a postconviction court must deny a claim based on the same facts or legal ground as a claim addressed in an earlier appeal or postconviction proceeding. Under Crim. P. 35(c)(3)(VII), a postconviction court must deny any claim that could have been raised in an earlier appeal.
A petitioner's failure to present his claims to the Colorado state courts in the manner prescribed by Rule 35c constitutes a procedural default for purposes of federal habeas corpus review. See, e.g., Childs v. Zavaras 90 F.Supp.2d 1141, 1150 (D. Colo. 1999), appeal dismissed, 208. F.3d 225 (10
Applicant is not entitled to federal habeas review of the merits of his defaulted claims unless he can demonstrate cause for the default and resulting prejudice, or, that the dismissal of his federal habeas petition would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50. Petitioner's pro se status does not exempt him from these requirements. Ballinger v. Kerby, 3 F.3d 1371, 1375 (10
The discussion above indicates that Mr. Murphy has exhausted the IAC claims that he presented in his postconviction motion and his "for-cause" juror challenge claim concerning Juror K. Accordingly, this Court may review the substance of those claims.
In summary, Respondents do not raise the one-year limitation period as an affirmative defense. The Court finds that claims 1, 2 and 6 (as reorganized by Respondents in their Response) are exhausted. However, claims 3, 4 and 5 are procedurally defaulted. Accordingly,
IT IS HEREBY
IT IS FURTHER
IT IS FURTHER
Colo. App. R. 51.1. Pursuant to Colo. App. R. 51.1, the Court finds that review in the Colorado Supreme Court is not required to exhaust state remedies if the claim in question was presented fairly to, and relief was denied by, the Colorado Court of Appeals. See, e.g., Valenzuela v. Medina, Civil No. 10-cv-02681-BNB, 2011 WL 805787, at *4 (D. Colo. Feb. 28, 2011).
