United States District Court, D. Colorado
ORDER DRAWING CASE
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Troy Jamison Kelly, is in the custody of the Colorado Department of Corrections at the Limon, Colorado, Correctional Facility. Mr. Kelly, through counsel, has filed a Petition for Relief Pursuant to 28 U.S.C. § 2254 challenging the validity of his criminal conviction in the District Court of Arapahoe County, Colorado. He has paid the $5.00 filing fee.
In an October 29, 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 December 3, 2013. After requesting and obtaining four extensions of time, Applicant filed a reply on May 12, 2014. For the reasons stated below, the Application will be drawn to a presiding judge, and, if appropriate, to a magistrate judge.
I. Background and State Court Proceedings
On August 9, 2002, Mr. Kelly was convicted by a jury of first degree murder of his girlfriend and related offenses in Arapahoe County District Court Case No. 00CR1636. (ECF No. 1, at 1-2; No. 9-1, at 4). He was sentenced to a term of life in prison without parole. ( Id. ).
The Colorado Court of Appeals affirmed Mr. Kelly's conviction on direct appeal in People v. Kelly ( Kelly I ), No. 02CA1839 (Colo.App. Dec. 29, 2005) (unpublished decision). (ECF No. 9-10). The Colorado Supreme Court granted certiorari review as to a confrontation clause claim and denied the petition as to all other claims on November 6, 2007. (ECF No. 9-8). The Colorado Supreme court later vacated the grant of certiorari as to the confrontation clause claim on February 8, 2007. (ECF No. 9-7).
Mr. Kelly filed a motion for post-conviction relief in the state district court pursuant to Colo. R. Crim. P. 35(c) on March 3, 2008. (ECF No. 1, at 6). The district court denied the motion without an evidentiary hearing on May 15, 2010. ( Id. at 7). The Colorado Court of Appeals affirmed the state district court's order in People v. Kelly ( Kelly II ), No. 10CA1323 (Colo.App. Sept. 13, 2012) (unpublished). (ECF No. 9-4). The Colorado Supreme Court denied Mr. Kelly's petition for certiorari review on August 26, 2013. (ECF No. 9-2).
Mr. Kelly initiated this action on October 25, 2013. He asserts two claims in the Application:
(1) "The trial court erroneously instructed the jury regarding its consideration of the evidence of self-induced intoxication on the issue of the culpable mental state for first degree murder thereby lessening the prosecution's burden of proof on that issue in violation of Petitioner Kelly's right to due process of law under the United States constitution and the error was not harmless. U.S. Const., amends. VI and XIV." (ECF No. 1, at 8).
(2) "Petitioner Kelly's trial counsel provided ineffective assistance of counsel by failing to object to the erroneous voluntary intoxication jury instruction that lessened the prosecution's burden of proof in violation of his federal constitutional right to due process and fair trial. Trial counsel's failure to object and thereby preserve the constitutional error for direct appeal prejudiced Petitioner Kelly because the court on direct appeal applied the less favorable standard of review for plain error rather than the standard for harmless error." ( Id. at 12).
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. 4, at 23).
III. Exhaustion of State Remedies and Procedural Default
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. 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 ...