GORDON P. GALLAGHER, Magistrate Judge.
This matter comes before the Court on the Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6)
The Court must construe the Amended Application and other papers filed by Applicant 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
The Court has reviewed the filings to date. The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Amended Application be denied.
Applicant, Daud Ali Mohamed, is a prisoner in the custody of the Colorado Department of Corrections, currently incarcerated at the Delta Correctional Center. Mr. Mohamed has filed pro se an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6), challenging the validity of his conviction in Arapahoe County District Court case number 2014CR1323.
On March 20, 2019, the Court ordered Respondents to file a Pre-Answer Response that addressed 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. 7). On March 29, 2019, Respondents filed their Pre-Answer Response (ECF No. 11) arguing that Mr. Mohamed's claims are unexhausted and procedurally barred. On April 12, 2019, Mr. Mohamed filed a reply (ECF No. 12) to the Pre-Answer Response.
Mr. Mohamed's convictions were a result of an incident with his teenage son. The Colorado Court of Appeals provides the following background:
(ECF No. 11-3 at 2) (People v. Mohamed, 2016CA 1467 (Colo. App. Aug. 30, 2018) (unpublished). Following a jury trial, Mr. Mohamed was found guilty of second degree assault, menacing, and two counts of child abuse. He was sentenced to five years in prison.
The Colorado Court of Appeals affirmed the conviction on August 20, 2018. (ECF No. 11-3), People v. Mohamed, (Colo. App. No. 16CA1467, Aug. 30, 2018) (unpublished), and the Colorado Supreme Court denied certiorari on December 17, 2018, (ECF No. 11-4). Prior to his direct appeal, Applicant filed a motion to reduce sentence, which was denied. (See ECF No. 11-1 at 6-7). He did not appeal. (See id.).
Mr. Mohamed initiated this action on February 22, 2019. (ECF No. 1). In his amended application, he asserts the following three claims:
(ECF No. 6).
Respondents do not argue that this action is barred by the one-year limitation period in 28 U.S.C. § 2244(d). (ECF No. 11 at 3).
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 (1999); Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10
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 (10
Finally, "[t]he exhaustion requirement is not one to be overlooked lightly." Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10
In claim one, Applicant argues that his Fifth Amendment rights were violated because the state court accepted a fraudulent entry of appearance. (ECF No. 6 at 4). Respondents argue that claim one is unexhausted. The claim was not presented on direct appeal by Mr. Mohamed. (See ECF No. 11 at 7). He has not filed any postconviction motions. (See ECF No. 11-1). Applicant argues that this claim is exhausted because he presented it to the Colorado Supreme Court, Attorney Regulation Counsel. The Supreme Court, Attorney Regulation Counsel dismissed Applicant's request for an investigation of the claim.
Although Applicant apparently presented a claim about a fraudulent entry of appearance to the Attorney Regulation Counsel, he did not present the claim on a direct appeal of his conviction or in a postconviction proceeding. A claim presented to the Attorney Regulation Counsel does not challenge Applicant's conviction and sentence. Therefore, Applicant has not exhausted state remedies. After reviewing the record, the Court agrees with the Respondents that claim one is not exhausted.
In his second claim, Applicant argues his Sixth Amendment rights were violated because the state court excluded defense witnesses. (ECF No. 6 at 7). Specifically, Applicant argues that "critical witnesses" were prevented from appearing before the jury. (Id.). He provides supporting factual allegations that specify one critical witness would have provided expert testimony and another critical witness would have provided an alibi for Applicant. (Id.).
Respondents argue that this claim, as it relates to an expert witness and an alibi witness, is unexhausted. (ECF No. 11 at 8-9). However, Respondents then argue that this claim, as it relates to a lay witness who was proffered to testify about events relating to the victim's motivation to lie, was raised in Applicant's direct appeal but that it is procedurally defaulted because it was denied by the Colorado Court of Appeals under the state's plain error standard. (Id. at 8-12).
The Court has reviewed the Amended Application (ECF No. 6), Applicant's Reply (ECF No. 12), as well as Applicant's opening brief on direct appeal (ECF No. 11-2). Claim two, as presented in the Amended Application, is challenging the exclusion of specific defense witnesses who would: (1) present expert testimony; and (2) alibi evidence. (ECF No. 6 at 7). The Amended Application and Applicant's Reply include no reference to a lay witness who was prevented from testifying as to the victim's motivation to lie. (See id. and ECF No. 12). Although Applicant exhausted a claim based on the exclusion of a lay witness proffered to testify as to the victim's motivation to lie (see ECF No. 11-2), such claim is not included in his Amended Application.
The federal habeas court is not required to search the record for constitutional error; it is the applicant's duty to point to a "real possibility" of such error. Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (citing Advisory Committee Notes to Rule 4, Rules Governing § 2254 Cases); see also Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). As discussed above, the Court construes the Amended Application liberally because Applicant is proceeding pro se. However, the Court is not an advocate for the Applicant and does not construct claims for Applicant that are not presented in his pleadings. Rule 2(c)(2) of the Rules Governing § 2254 Cases in the United States District Courts requires that the habeas application state the grounds supporting each claim for relief. Therefore, claim two does not include a challenge to the exclusion of a lay witness who was proffered to testify about the victim's motivation to lie.
Instead, the claim only includes a challenge to the exclusion of the "critical witnesses" that were to provide expert testimony and alibi evidence. These claims were not included in Applicant's opening brief on direct appeal. (See ECF No. 11-2). In his Reply, Applicant argues that this claim was exhausted and cites to his "Reply Brief" on direct appeal. (ECF No. 12 at 3 (citing to Reply Brief on Direct Appeal at 1)). Applicant's Reply Brief on direct appeal was not provided to the Court. According to Applicant, his Reply Brief on direct appeal stated that "defendant sufficiently preserved his constitutional claim to call witnesses in his defense when defense counsel attempted to have an expert witness's testimony admitted, the prosecution objected, and the court found the testimony inadmissible." (Id.). This argument by Applicant only applies to the expert witness. Moreover, even assuming that Applicant included claims relating to the expert witness and alibi witness in his Reply Brief on direct appeal, the claims are not exhausted. A claim must be presented to the state courts in such a manner that the court can be expected to address its merits. See Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (claim is not fairly presented to the state court if the "court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so."). Thus, a claim asserted for the first time in a reply brief does not fairly present the claim to the state court. See e.g., Bethurum v. Zavaras, 352 F. App'x 260, 263-64 (10th Cir. 2009) (noting that a claim raised in a reply brief in state court is not exhausted because issues not asserted in an appellant's initial brief will not normally be considered by a Colorado appellate court) (citations omitted). Therefore, claim two was not exhausted.
In claim three, Applicant argues that his Fourteenth Amendment rights were violated because the state court denied him equal protection of the law. (ECF No. 6 at 7). Respondents argue that this claim, which does not contain any supporting factual allegations, was not exhausted in Applicant's direct appeal. In his Reply, Applicant argues that claim three is exhausted because "[t]here are no state remedies available for acts of fraud committed by an attorney." (ECF No. 12 at 3). He then argues that he did not retain Attorney Kaufman, nor was he appointed by the Court. (Id.). In conclusion, Applicant argues that "[a]ny constitutional violation discovered by this Court, validates that an equal protection of the laws violation has occurred." (Id. at 3-4).
Applicant's arguments do not demonstrate that he exhausted claim three. Therefore, the Court agrees with Respondents that claim three contains no supporting factual allegations and has not been exhausted.
The Court may not dismiss Mr. Mohamed's unexhausted claims for failure to exhaust state remedies if he no longer has an adequate and effective state remedy available to him. See Castille, 489 U.S. at 351. Respondents contend, and the Court agrees, that Mr. Mohamed no longer has an adequate and effective state remedy available to him to raise his unexhausted claims. In particular, Rules 35(c)(3)(VII) of the Colorado Rules of Criminal Procedure provide that, with limited exceptions not applicable to Applicant, the state court must dismiss any claim that could have been presented in a prior appeal or postconviction proceeding.
Federal courts "do not review issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the default is excused through a showing of cause and actual prejudice or a fundamental miscarriage of justice." Jackson v. Shanks, 143 F.3d 1313, 1317 (10
"A state procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision." English v. Cody, 146 F.3d 1257, 1259 (10
Mr. Mohamed fails to demonstrate that Rule 35(c)(3)(VII) of the Colorado Rules of Criminal Procedure is not an independent and adequate state procedural rule. In any event, the court finds that the rule is independent because it relies on state rather than federal law. Rule 35(c)(3)(VII) also is adequate because it is applied evenhandedly by Colorado courts. See, e.g., People v. Vondra, 240 P.3d 493, 494-95 (Colo. App. 2010) (applying Crim. P. Rules 35(c)(3)(VI) and (VII) to reject claims that were or could have been raised in a prior proceeding); see also LeBere v. Abbott, 732 F.3d 1224, 1233 n.13 (10
To demonstrate cause for his procedural default, Mr. Mohamed must show that some objective factor external to the defense impeded his ability to comply with the state's procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). "Objective factors that constitute cause include interference by officials that makes compliance with the State's procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to [applicant]." McCleskey v. Zant, 499 U.S. 467, 493201194 (1991) (internal quotation marks omitted). If Mr. Mohamed can demonstrate cause, he also must show "actual prejudice as a result of the alleged violation of federal law." Coleman, 501 U.S. at 750.
Even when a claim is procedurally defaulted and the applicant cannot establish cause and prejudice to excuse the default, the federal habeas court may still address the merits of the claim if not doing so "will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. A "fundamental miscarriage of justice," means that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 91 L. Ed. 2d 397 (1986). That standard requires an applicant to "support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L. Ed. 2d 808 (1995). As a result, fundamental miscarriages of justice are "extremely rare." Id. The petitioner bears the burden to present new evidence so persuasive that "more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt." House v. Bell, 126 S.Ct. 2064, 2077, 165 L. Ed. 2d 1 (2006).
Mr. Mohamed fails to provide any arguments that there was cause and prejudice for the procedural default of his claims or that failure to reach the merits would result in a fundamental miscarriage of justice.
For the reasons set forth herein, this Magistrate Judge respectfully
RECOMMENDS that the Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) be denied and the action be dismissed as procedurally barred.
