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Hodge v. Miller

United States District Court, Tenth Circuit

January 24, 2014

BLANCH HODGE, JR., Applicant,
v.
MICHAEL MILLER, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

RAYMOND P. MOORE, District Judge.

This matter is before the Court on the pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Application") (ECF No. 1), filed by Applicant Blanch Hodge, Jr., on March 18, 2013. Respondents answered the Application (ECF No. 38), and Applicant was afforded an opportunity to file a reply or traverse. After reviewing the pertinent portions of the record in this case including the Application, the Answer, and the state court record, the Court concludes that the Application should be denied.

I. BACKGROUND

On May 26, 1999, Applicant was convicted, pursuant to his guilty plea, of first degree burglary and third degree sexual assault in El Paso County District Court Case No. 99CR147. (ECF No. 16-1, at 2 of 26). He was sentenced to a 30-year prison term with the Colorado Department of Corrections. ( Id. at 25). Applicant did not file a direct appeal from his conviction.

On October 12, 1999, Applicant filed a motion to reconsider his sentence pursuant to Colo. R. Crim. P. 35(b). ( Id. at 25). The trial court denied the motion and Applicant did not appeal. ( Id. at 24-25).

On October 31, 2001, Applicant filed a motion to correct an illegal sentence, which was denied by the trial court. ( Id. at 23). On appeal, the Colorado Court of Appeals vacated Applicant's sentence and remanded for sentencing. See People v. Hodge, 02CA0341 (Colo.App. Sept. 4, 2003) (unpublished). (ECF No. 16-2). On April 22, 2004, the trial court resentenced Applicant to twenty-four years in the CDOC. (ECF No. 16-1, at 19).

On May 12, 2004, Applicant filed a motion to withdraw his plea and to set aside his sentence. ( Id. ). The trial court denied the motion on June 14, 2004. ( Id. ). Applicant appealed, claiming that he was denied his constitutional right to counsel and a hearing at resentencing. (ECF No. 16-4). Applicant also raised several challenges to the validity of his guilty plea. ( Id. ). The Colorado Court of Appeals affirmed the trial court's ruling that Applicant's challenges to his guilty plea were time-barred in People v. Hodge, 04CA1255 (Colo.App. March 30, 2006) (unpublished). (Doc. No. 16-7, at 5-8). However, the state appellate court also vacated Applicant's sentence and remanded for resentencing on the bases that Applicant was improperly denied counsel at the resentencing hearing and the district court incorrectly believed that the twenty-four year sentence was automatic. ( Id. at 4-5). The state district court resentenced Applicant to a twenty-four year prison term on August 25, 2006. ( Id. at 15).

In the meantime, Applicant filed another post-conviction motion on July 20, 2004. (ECF No. 16-1, at 19). The trial court denied the motion and Applicant's appeal was dismissed on December 8, 2004. ( Id. at 17).

On August 22, 2006, Applicant filed a motion to withdraw his guilty plea pursuant to Colo. Crim. P. 32(d). The trial court denied the motion on August 25, 2006. ( Id. at 15). On appeal, the Colorado Court of Appeals held that Applicant's advisement at the providency hearing concerning his possible sentence was defective, and remanded the case to the trial court for an evidentiary hearing to determine whether the error was harmless. See People v. Hodge, 205 P.3d 481 (Colo.App. 2008).

On remand, the trial court denied the motion following an evidentiary hearing. (ECF No. 16-1, at 12). During the remand proceeding, Applicant also raised a claim under Colo. Crim. P. 35(a) that his sentence was illegal, which the trial court denied on October 20, 2009. ( Id. at 11-12). The Colorado Court of Appeals affirmed both orders on direct appeal in People v. Hodge, 09CA2580 (Colo.App. July 5, 2012) (unpublished). (ECF No. 16-21). The Colorado Supreme Court denied Applicant's petition for certiorari review on December 20, 2012. (ECF No. 16-23).

Applicant initiated this action on March 18, 2013, asserting three claims for relief: (1) that his guilty plea was not knowing, intelligent and voluntary, in violation of due process; (2) that his aggravated range sentence violates his constitutional rights as articulated in Blakely v. Washington, 542 U.S. 296 (2004), because the only factor relied on by the sentencing court to aggravate his sentence was his probationary status, and the probationary sentence was found to be illegal; and, (3) the trial court erred in failing to vacate his sentence before conducting a Colo. Crim. P. 32(d) hearing on a motion to withdraw his guilty plea on remand from the Colorado Court of Appeals. (ECF No. 1, at 47-52).

Respondents raised the following arguments in their Pre-Answer Response: (1) the Application is barred by the one-year limitation period in 28 U.S.C. § 2244(d); (2) claim two was procedurally defaulted in the state courts; and, (3) claim three does not present a federal question cognizable on federal habeas corpus review. (ECF No. 16). In a previous order, the Court determined that claim one is time-barred and that claim three fails to invoke this Court's federal habeas jurisdiction. (ECF No. 27). The Court thus dismissed claims one and three. ( Id. ). The Court further found that Applicant exhausted state remedies for his second claim. ( Id. at 11). The Court addresses the merits of claim two below.

II. LEGAL STANDARDS

A. 28 U.S.C. ...


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