United States District Court, D. Colorado
ORDER TO DISMISS IN PART
CHRISTINE M. ARGUELLO, District Judge.
Applicant, Gabriel Esparza, is a prisoner in the custody of the Colorado Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr. Esparza has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. # 1) ("the Application") challenging the validity of his conviction and sentence in Arapahoe County District Court case number 04CR1256.
On April 29, 2014, 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 May 9, 2014, Respondents filed a Pre-Answer Response (the "Response") (Doc. # 8). In the Response, Respondents concede that the instant action is timely and that Claims 1, 2, 3, 4, 5, 6, and 7(d) are exhausted but argue that Claims 7(a) and (b) are unexhausted and Claim 7(c) is procedurally defaulted. On May 29, 2014, Mr. Esparza filed his "Reply to Pre-Answer Response" (the "Reply") (Doc. # 9).
The Court must construe the Application and the Reply filed by Mr. Esparza 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, in part.
After a jury trial, Mr. Esparza was convicted of first degree murder of his estranged wife, aggravated motor vehicle theft, and violation of a protective order. (Doc. # 8-13 at 3). He was sentenced to life without parole. ( Id. ). He appealed the judgment of conviction, and the Colorado Court of Appeals affirmed. See People v. Esparza, No. 05C1952, slip op. at 1 (Colo.App. Apr. 30, 2009) (Doc. # 1-1 at 2). On July 20, 2009, the Colorado Supreme Court denied Mr. Esparza's petition for writ of certiorari on direct appeal. ( See Doc. # 1-2).
On December 7, 2009, Mr. Esparza filed in the state district court a post-conviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. ( See Doc. # 8-1 at 4). Mr. Esparza also requested that postconviction counsel be appointed, but the state district court denied the request and summarily denied his Rule 35(c) motion. ( See Doc. # 1-3). On January 19, 2012, the Colorado Court of Appeals affirmed the trial court's order denying the Rule 35(c) motion. ( See Doc. # 1-4 at 2). On September 23, 2013, the Colorado Supreme Court denied Mr. Esparza's petition for writ of certiorari in the state court postconviction proceedings. ( See Doc. # 1-5.)
On April 28, 2014, Mr. Esparza filed the § 2254 Application asserting seven claims for relief. He asserts in Claim 1 that his Fourth Amendment rights were violated when he was arrested without a warrant and searched. He contends in Claim 2 that the trial court violated his Fourth Amendment rights by denying his motion to suppress evidence from invalid searches. Mr. Esparza asserts in Claim 3 that he was tried before a biased judge who should have recused himself in violation of his due process rights under the Fifth and Fourteenth Amendments. He asserts in Claim 4 that the trial court violated his due process rights under the Sixth and Fourteenth Amendments by making prejudicial evidentiary rulings. He alleges in Claim 5 that his due process rights were violated because the prosecution misled defense counsel and the trial court refused to hold a suppression hearing. Mr. Esparza also asserts in Claim 6 his due process rights were violated by prosecutorial misconduct. Mr. Esparza finally contends in Claim 7 that he received ineffective assistance of trial counsel because (a) counsel did not conduct a sufficient investigation into his casino alibi defense; (b) counsel failed to secure a Gun Shot Residue expert to challenge the State's interpretation of the CBI test results; (c) counsel did not represent him during the motions hearing concerning a forced handwriting exemplar; and (d) counsel infringed on his right to plead not guilty and to testify on his own behalf by admitting his guilt to the jurors in opening statements.
II. ONE-YEAR LIMITATION PERIOD
Respondents concede that this action is not barred by the one-year limitation period in 28 U.S.C. § 2244(d).
III. EXHAUSTION OF STATE REMEDIES
Respondents also concede that Claims 1, 2, 3, 4, 5, 6, and 7(d) are exhausted. However, Respondents argue that Claims 7(a) and (b) are unexhausted and Claim 7(c) is procedurally defaulted.
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 ...