United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Craig Robledo-Valdez, filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 4) (the "Application"). Mr. Robledo-Valdez is challenging the validity of his convictions in Park County District Court case numbers 08CR19 and 08CR21. Although Mr. Robledo-Valdez lists the United States of America as a Respondent in the caption of the Application, the United States is not a proper Respondent and has not been ordered to file a response in this action. All references to "Respondents" exclude the United States.
On October 21, 2013, Magistrate Judge Boyd N. Boland ordered Respondents to file a Pre-Answer Response limited to addressing 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 intend to raise either or both of those defenses in this action. On October 30, 2013, Respondents filed their Pre-Answer Response (ECF No. 13). On December 23, 2013, the Court entered an Order of Dismissal (ECF No. 15). On January 7, 2014, Mr. Robledo filed a Petition for Rehearing (ECF No. 19) requesting an opportunity to file a late response to the Pre-Answer Response because he had not received a copy of the Pre-Answer Response. Mr. Robledo also included in the Petition for Rehearing various arguments addressing the Court's reasoning in the Order of Dismissal. On January 10, 2014, the Court entered an Order Reinstating Action (ECF No. 20) because it was not clear whether Mr. Robledo had received a copy of the Pre-Answer Response. Also on January 10, 2014, Magistrate Judge Boland entered a Minute Order (ECF No. 21) directing Respondents to serve a copy of the Pre-Answer Response on Mr. Robledo at his current address and directing Mr. Robledo to file a reply to the Pre-Answer Response within twenty-one days from the date of service. Respondents then filed a Certificate of Re-Service of Pre-Answer Response (ECF No. 22) that indicates a copy of the Pre-Answer Response was mailed to Mr. Robledo at the Denver County Jail that same day. On January 27, 2014, while he still was confined at the Denver County Jail, Mr. Robledo filed a Notice of Change of Address (ECF No. 23) dated January 20, 2014, stating that his parole was revoked following a hearing on January 17, 2014, and that he would be moved to the Denver Reception and Diagnostic Center on or about January 24, 2014. Other than the arguments Mr. Robledo-Valdez included within his Petition for Rehearing, he has not filed a reply to the Pre-Answer Response.
The Court must construe the Application and other papers filed by Mr. Robledo-Valdez 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 should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the action because the claims in the Application are procedurally barred.
The Colorado Court of Appeals summarized the plea agreement and the state court proceedings relevant to the convictions and sentence Mr. Robledo-Valdez is challenging in the Application as follows:
Defendant was charged with tampering with a witness in 2008 while separate charges were pending against him in another jurisdiction. Both cases were resolved by plea agreements. In this case, defendant agreed that he would serve two years in the Department of Corrections (DOC), consecutive to his sentence from the first jurisdiction. He filed a motion to withdraw his plea immediately thereafter, and the motion was denied in August 2009; he did not pursue a direct appeal.
Defendant filed a Crim. P. 35(c) motion in September 2009 alleging ineffective assistance of plea counsel and requesting counsel. Postconviction counsel filed an amended motion asking that (1) defendant be allowed to withdraw his plea; (2) the prosecution be required to reinstate an earlier offer of a different plea disposition; and (3) the court impose a concurrent, rather than consecutive, sentence. This motion was denied following a hearing in April 2010, and defendant did not appeal the order denying the motion.
In October 2011, defendant filed a pleading entitled "Motion to Set Hearing." This motion alleged that new evidence called into question the validity of his plea agreement, and asked the court to conduct a hearing on this allegation. In a November 2011 order, the trial court summarily denied the motion, concluding that it was a variation of previous motions. Defendant filed a letter asking the court to reconsider this order because the Motion to Set Hearing raised a new issue. The trial court did not rule on the request in defendant's letter and defendant did not appeal the order.
In April 2012, defendant filed a third Crim. P. 35(c) motion that again alleged that there was newly discovered evidence that undercut the validity of his guilty plea in this case. The trial court denied this motion, concluding that it was successive to defendant's first Crim. P. 35(c) motion.
People v. Robledo, No. 12CA1348, slip op. at 1-2 (Colo.App. Oct. 3, 2013) (unpublished) (ECF No. 13-5 at 2-3). The Colorado Court of Appeals affirmed the trial court's order denying the third Rule 35(c) motion as successive. See id.
Mr. Robledo-Valdez initiated the instant action on September 18, 2013, and the Application was filed on October 17, 2013. He asserts three claims in the Application, each of which presents the same argument that his guilty plea was not entered knowingly and voluntarily because his decision to accept a consecutive sentence was premised on a factual error by the Department of Corrections in calculating his mandatory release date for a prior sentence. According to Mr. Robledo-Valdez, he would have completed both prison sentences no later than August 2012 if he had been advised accurately regarding his mandatory release date for the prior sentence. The Court construes the Application liberally as raising a constitutional due process claim. Mr. Robledo-Valdez alleges in the Application that he has completed his original prison sentences. As noted above, he currently is incarcerated as a result of a parole violation.
Respondents argue that the Application is barred by the one-year limitation period in 28 U.S.C. § 2244(d) and that the Application should be denied because the due process claim Mr. Robledo-Valdez asserts is either unexhausted or procedurally barred. The Court will dismiss the due process claim as procedurally barred.
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 (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). Fair presentation requires that the federal issue be presented properly "to the highest state court, either by direct review of the conviction or in a postconviction attack." Dever, 36 F.3d at 1534.
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). 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." Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). A claim must be ...