United States District Court, D. Colorado
PHILIP A. PUNK JR., Applicant,
HAGGER, Director of CDOC, LOU ARCHULETA, Warden, F.C.F., and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Philip A. Punk Jr., a state prisoner in the custody of the Colorado Department of Corrections, currently is incarcerated at the Fremont Correctional Facility in Cañon 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 El Paso County District Court Case No. 2002-CR-2770.
On February 20, 2014, 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 Response on March 25, 2014. Applicant filed a Reply on the same day.
The Court must construe liberally the Application and Reply filed by Applicant 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 does not "assume the role of advocate for the pro se litigant." See Hall, 935 F.2d at 1110.
Following a jury trial, Applicant was found guilty of second degree murder and a crime of violence and was sentenced to forty-eight years of incarceration. Pre-Answer Resp., ECF No. 24-9, Ex. I at 2. The Colorado Court of Appeals (CCA) affirmed the conviction, id., ECF No. 24-4, Ex. D, and the Colorado Supreme Court (CSC) denied a petition for certiorari review, id., ECF No. 24-6, Ex. F. On September 25, 2006, Applicant filed a Colo. R. Crim. P. 35(c) postconviction motion alleging ineffective assistance of counsel. Id., ECF No. 24-1, Ex. A, at 2. The district court denied the motion, id., the CCA affirmed the order, id. at ECF No. 24-9, Ex. I, and on December 9, 2013, the CSC denied the petition for certiorari review, id., ECF No. 24-11, Ex. K.
Applicant raises three claims in this action, including: (1) faulty DNA testing; (2) failure to test clothing for DNA; and (3) fingerprints were found that did not match his or the victim's.
Respondents concede that the action is timely under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1), but they argue that (1) Applicant failed to raise any of the three claims in state court; (2) Applicant concedes in the Application that he did not raise the claims; and (3) the claims are procedurally defaulted because they are subject to dismissal as time-barred and successive. The Court has reviewed Applicant's opening briefs on direct appeal and in his appeal of the Rule 35(c) motion. The briefs do not address the claims that Applicant raises in this action.
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. 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. People, 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 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).
"The exhaustion requirement is not one to be overlooked lightly." Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). 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).
Claims are precluded from federal habeas review when the claims have been defaulted in state court on an independent and adequate state procedural ground. Steele v. Young, 11 F.3d 1518, 1521 (10th Cir. 1993) (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." See Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (internal quotations and citations omitted).
The Colorado Rules of Criminal Procedure prohibit successive postconviction Rule 35 motions with limited exceptions. See Colo. R. Crim. P. 35(c)(3)(VI) and (VII) (explaining that claims "raised and resolved" or "that could have been presented" in a prior appeal or post-conviction proceeding will generally be denied); see also People v. Bastardo, 646 P.2d 382, 383 (Colo. 1982) (stating that postconviction review is not available to address under a recently contrived constitutional theory issues that were raised previously). Rule 35 proceedings prevent injustices after conviction and sentencing but do not provide perpetual review. See People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (citing People v. Hampton, 528 P.2d 1311, 1312 (1974)).
Also, if it is obvious that an unexhausted claim would be procedurally barred in state court the claim is subject to an anticipatory procedural bar, see Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007), and is procedurally barred from federal habeas review, Steele, 11 F.3d at 1524 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Applicant's claims now are defaulted in state court because could have raised the claims in his direct appeal and he failed to raise the claims within the three-year time period. See Colo. Rev. Stat. § 16-5-402 (imposing three-year limitation on felonies other than a class 1 felony); Colo. R. Crim. P. 35(c)(3)(VII).
As a general rule, 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 (10th Cir. 1998). Application of this procedural default rule in the habeas corpus context is based on comity and federalism concerns. See Coleman, 501 U.S. at 730. A federal court may proceed to the merits of a procedurally defaulted habeas claim if the applicant establishes either cause for default and actual prejudice or fundamental miscarriage of justice if the merits of a claim are not reached. See Demarest v. Price, 130 F.3d 922, 941 (10th Cir. 1997). Applicant's pro se status does not exempt him from the requirement of demonstrating cause for the default and actual prejudice or ...