United States District Court, D. Colorado
ROBERT H. DIXON, Applicant,
STEVE HARTLEY, THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
AMENDED ORDER TO DISMISS IN PART
MARCIA S. KRIEGER, Chief District Judge.
Applicant, Robert H. Dixon, is in the custody of the Colorado Department of Corrections (CDOC). He is incarcerated currently at the Arkansas Valley Correctional Facility in Ordway, Colorado. Mr. Dixon has filed an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 21) challenging the validity of his criminal conviction in the District Court of Denver County, Colorado. he has paid the $5.00 filing fee.
In a September 23, 2013 Order, Magistrate Judge Boyd N. Boland 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 November 4, 2013. In the Pre-Answer response, Respondents argued that the claims in the original Application were not adequately pleaded. The Court agreed and in a December 4, 2013 order, directed Mr. Dixon to file an Amended Application within thirty days. Applicant filed the Amended Application on January 21, 2014. (ECF No. 21). Thereafter, Magistrate Judge Boland ordered Respondents to file an Amended Pre-Answer Response. The Amended Pre-Answer Response was filed on January 30, 2014. (ECF No. 25). Mr. Dixon filed his Reply on April 7, 2014, after being granted an extension of time.
The Court must construe liberally the Amended Application filed by Mr. Dixon 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 act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the Amended Application, in part.
I. Background and State Court Proceedings
Mr. Dixon's first trial ended in a hung jury and mistrial. (ECF Nos. 15-1, at 6; 15-12, at 14). Following a second trial, Mr. Dixon was convicted by a jury of first degree sexual assault in Denver County District Court Case No. 06CR3022. (ECF No. 15-1, at 9). He was adjudicated a habitual offender and sentenced to a 48-year prison term in the CDOC. ( Id. ).
The Colorado Court of Appeals affirmed Mr. Dixon's convictions and sentence on direct appeal in People v. Dixon ( Dixon I ), No. 07CA1158 (Colo.App. Sept. 10, 2009) (unpublished decision). (Doc. No. 15-11). The Colorado Supreme Court denied Applicant's request for certiorari review on December 21, 2009. (ECF No. 15-9).
On April 12, 2010, Mr. Dixon filed a motion for sentence reconsideration pursuant to Colo. R. Crim. P. 35(b), which was denied by the state district court on July 7, 2010. (ECF No. 15-1, at 3). Applicant did not appeal that order.
On December 30, 2010, Mr. Dixon filed a motion for post-conviction relief pursuant to Colo. R. Civ. P. 35(c), which the state district court denied summarily on April 1, 2011. ( Id. at 2; ECF No. 15-8). The Colorado Court of Appeals affirmed the district court's order in People v. Dixon ( Dixon II ), 11CA0942 (Colo.App. Oct. 18, 2012) (unpublished). (ECF No. 15-6). The Colorado Supreme Court denied certiorari review on June 24, 2013. (ECF No. 15-4).
Mr. Dixon initiated this action on August 14, 2013. The Court discerns the following claims from the Amended Application:
1) Prosecutorial misconduct, in violation of Applicant's due process rights, as evidenced by: (a) the prosecution's strikes of "all African-Americans and women gender" from the panel, leaving an "all white jury with only one women [sic]" (ECF No. 21, at 7); (b) changes during the second trial, in the testimony of the Sexual Assault Nurse Examiner (SANE) who examined the victim; at the second trial, the SANE (i) "exaggerat[ed] the severity of [her] evidentiary medical findings" ( id. at 5); and, (ii) "alter[ed] a diagram she had prepared and used in the first trial, " to show "more cuts and injury's [sic] to the victim's labia ( id. ); (c) the prosecution's introduction of "false evidence" namely, crime scene photos alleged to have been, but actually were not, taken by the original detective ( id. at 6); (d) the prosecution's handling of other act evidence - namely, (i) mentioning, during opening statement, that Applicant had sexually assaulted two other victims (without the benefit of an immediate curative instruction) ( id. at 7); (ii) asserting that the other sexual assaults happened in the same way as the charged crime ( id. ); and, (iii) suggesting, during cross-examination of Applicant, that he had sexually assaulted two other victims ( id. at 6); (e) the prosecution's closing argument, which: (i) falsely exaggerated the SANE's findings ( id. at 6) (e.g., arguing that the victim's vagina was "shredded" and "torn open from top to bottom"); (ii) improperly stated that the jurors would have felt "cheated" if the prosecution had not introduced evidence of applicant's prior sexual assaults, as it had discussed in opening statements ( id. at 8); and, (iii) "[w]hat you have heard from SM confirmation by nurse Marquez tells you this was not consensual intercourse" ( id. ); and, (f) cumulative error ( id. ). 2) The trial court violated Applicant's due process rights when: (a) an expert prosecution witness who did not testify at the first trial testified at the second, even though the expert was not endorsed properly and the defense was unprepared for his testimony (ECF No. 21, at 8); (b) the SANE testified "as an expert on physical trauma without having any expertise in [the] field" ( id. at 9); (c) the trial court excluded evidence that: (i) a witness, Ms. E, who testified at the first trial that the victim's car was stolen, had since admitted that the victim gave Ms. E permission to use the car ( id. at 9), and, (ii) the victim's vaginal injury could have been caused by a sexual encounter she had with another person "within hours" of having sex with Applicant ( id. ); (d) the trial court erroneously admitted another sexual assault (i) in the absence of proof that Applicant actually committed that assault ( id. at 9-10); and, (ii) that, being nearly 20 years old, was too remote in time and unduly prejudicial ( id. at 10); (e) the trial court ruled that counsel appointed to investigate the validity of Applicant's prior convictions, alleged as habitual criminal counts, could not represent Applicant in the habitual criminal adjudication ( id. at 10); (f) the trial court refused to appoint new counsel after applicant complained "numerous times that his counsel would not listen to him and refused to let him participate in any way in his own defense" ( id. ); (g) the trial court refused to conduct a proportionality review ( id. at 11); and, (h) cumulative error ( id. ).
3). Trial counsel was ineffective in failing to: (a) introduce and use evidence of the alleged victim's clothing to prove that the victim was not dragged 10 feet through dirt and grass, held down, and assaulted; (b) introduce the victim's videotaped statement to the police in which she admitted to having consented to having sex with the Applicant; (c) investigate and use telephone records to show that the victim and her friend were in contact with the Applicant the day of the assault, and afterward; (d) introduce preliminary hearing transcripts to impeach the victim's testimony; and, (e) introduce Nurse Marquez's prior statements into evidence that she did not know how the victim's injury occurred. (ECF No. 21, at 11-13).
4). Trial counsel was ineffective in failing to: (a) interview or subpoena Detective Castro to testify at trial that he did not believe that a crime had been committed; (b) investigate and call the victim's friend, a known prostitute, as a witness to testify that on the night of the assault she and the victim had been drinking and smoking crack cocaine, and that the victim had engaged in prostitution; (c) investigate witnesses John L. and Suzanne S. "on behalf of the petitioner[s] defense and credibility"; (d) endorse and use a criminal investigator; and, (e) endorse a physical trauma expert to evaluate and testify about the physical evidence. ( Id. at 13-14).
5). Trial counsel was ineffective in: (a) suggesting that Applicant was guilty of the sexual assault; (b) communicating privately with a juror; (c) failing to impeach the victim after she committed perjury; (d) failing to impeach witness Detective Colaizzi after he lied about not having video evidence that would have exonerated Applicant; (e) failing to adequately cross-examine Officer Ortega about the victim's statements to him; (f) bringing up "the pet criminal past" to the jury; (g) failing to make objections to certain evidence and to prosecutorial arguments; (h) refusing Applicant access to discovery; (i) failing to advise Applicant whether to testify on his own behalf at trial and in the habitual criminal trial; (j) in continuing to represent Applicant even though there was a conflict-of-interest and in failing to advise the court that a different attorney was representing Applicant in the habitual criminal proceeding; and, (k) failing to conduct an investigation and present mitigating evidence. ( Id. at 15-17). Direct appeal counsel was constitutionally ineffective in failing to present on appeal numerous constitutional errors that occurred at Applicant's trial. ( Id. at 18). The evidence to support the sexual assault conviction was insufficient because the prosecution relied on inadmissible other acts evidence and prejudicial arguments to convict Applicant. ( Id. ). The habitual criminal convictions were unconstitutionally obtained. ( Id. ).
II. Timeliness of Application
Respondents do not challenge the timeliness of the Application under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). ( See ECF No. 25, at 5-6).
III. Exhaustion of State Remedies and Procedural Default
Respondents concede that Mr. Dixon exhausted state remedies for claims 1(b)(i), 1(b)(ii), 1(e)(i), and 2(c)(ii). (ECF No. 25, at 21). Respondents contend, however, that the remainder of Applicant's claims are barred from federal habeas review based on the doctrines of procedural default and anticipatory procedural default. ( Id. at 19-36).
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, 843 (1999); Dever v. Kansas 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). 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).
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 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 (10th Cir. 1992).
If a habeas petitioner "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 v. Thompson, 501 U.S. 722, 735 n.1 (1991); Anderson v. Sirmons, 476 F.3d 1131, 1139-40 n.7 (10th Cir. 2007) (applying anticipatory procedural bar). A claim that has been procedurally defaulted in the state courts on an independent and adequate state procedural ground is precluded from federal habeas review, unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the federal violation, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007).
A petitioner's pro se status does not exempt him from the requirement of demonstrating either cause and prejudice or a fundamental miscarriage of justice. See Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994).
A. Claim 1
Mr. Dixon first asserts a claim of prosecutorial misconduct, in violation of his due process rights, as evidenced by the following: (a) the prosecution's strikes of "all African-Americans and women gender" from the panel, leaving an "all white jury with only one women [sic]" (ECF No. 21, at 7); (b) changes during the second trial, in the testimony of the Sexual Assault Nurse Examiner (SANE) who examined the victim; at the second trial, the SANE (i) "exaggerat[ed] the severity of [her] evidentiary medical findings" ( id. at 5); and, (ii) "alter[ed] a diagram she had prepared and used in the first trial, " to show "more cuts and injury's [sic] to the victim's labia ( id. ); (c) the prosecution's introduction of "false evidence" namely, crime scene photos alleged to have been, but actually were not, taken by the original detective ( id. at 6); (d) the prosecution's handling of other act evidence - namely, (i) mentioning, during opening statement, that Applicant had sexually assaulted two other victims (without the benefit of an immediate curative instruction) ( id. at 7); (ii) asserting that the other sexual assaults happened in the same way as the charged crime ( id. ); and, (iii) suggesting, during cross-examination of Applicant, that he had sexually assaulted two other victims ( id. at 6); (e) the prosecution's closing argument, which: (i) falsely exaggerated the SANE's findings ( id. at 6) (e.g., arguing that the victim's vagina was "shredded" and "torn open from top to bottom"); (ii) improperly stated that the jurors would have felt "cheated" if the prosecution had not introduced evidence of applicant's prior sexual assaults, as it had discussed in opening statements ( id. at 8); and, (iii) "[w]hat you have heard from SM confirmation by nurse Marquez tells you this was not consensual intercourse" ( id. ); and, (f) cumulative error ( id. ).
1. Sub-claims 1(b)(i), 1(b)(ii), 1(e)(i)
Respondents concede that Mr. Dixon exhausted state remedies for claims 1(b)(i), 1(b)(ii), 1(e)(i). (ECF No. 25, at 14).
2. Sub-claims 1(a), 1(c), 1(d)(i), 1(d)(ii), 1(e)(ii) and 1(e)(iii)
Respondents argue, and the Court so finds, that Mr. Dixon failed to exhaust state remedies for sub-claims 1(a), 1(c), 1(d)(i), 1(d)(ii), 1(e)(ii) and 1(e)(iii) because he did not present those claims to the Colorado Court of Appeals on direct appeal or in his state post-conviction proceeding. ( See ECF Nos. 15-12; 15-7). The Court further agrees with Respondents' contention that Applicant has committed an anticipatory procedural default of sub-claims 1(a), 1(c), 1(d)(i), 1(d)(ii), 1(e)(ii) and 1(e)(iii) because if he attempted to raise the claims in a new state post-conviction proceeding, the motion would be dismissed on procedural grounds.
The Colorado Rules of Criminal Procedure provide that in deciding a motion for postconviction relief, "[t]he court shall deny any claim that could have been presented in an appeal previously brought or postconviction proceeding previously brought." See Colo. R. Crim. P. 35(c)(3)(VII) (stating that the court shall deny any claim that could have been raised in a prior appeal or post-conviction proceeding); see also People v. Valdez, 178 P.3d 1269, 1275 (Colo.App. 2007); People v. Vondra, 240 P.3d 493, 494-95 (Colo.App. 2010); accord Turman v. Buckallew, 784 P.2d 774, 780 (Colo. 1989) ("We have emphasized that where a post-conviction application is filed, it should contain all factual and legal contentions of which the applicant knew at the time of filing, and failure to do so will, unless special circumstances exist, ordinarily result in a second application containing such grounds being summarily denied.") (internal quotation marks omitted). Colo. R. Crim. P. 35(c)(3)(VII) is an adequate state procedural ground for rejecting a claim. See Burton v. Zavaras, No. 09-1094, 340 F.App'x 454-55 (10th Cir. Aug. 4, 2009) (unpublished) (applying Colorado's bar against successive claims); Williams v. Broaddus, No. 08-1254, 331 F.App'x 560, 563 (10th Cir. May 20, 2009) (unpublished).
Mr. Dixon is not entitled to have this Court review the merits of his defaulted claims unless he meets the cause and prejudice standard or demonstrates that he is actually innocent of the crime. See Coleman, 501 U.S. at 750; Cummings, 506 F.3d at 1224. Mr. Dixon asserts, as cause for his procedural default, that appellate counsel was ...