United States District Court, D. Colorado
ORDER TO DISMISS IN PART
CRAIG B. SHAFFER, Magistarte Judge.
This case is before this Court pursuant to the Order of Reference entered February 9, 2015, and the parties' unanimous consent to disposition of this action by a United States Magistrate Judge.
Applicant Jason Brooks is a prisoner in the custody of the Colorado Department of Corrections at the Fremont Correctional Facility in Cañon City, Colorado. Mr. Brooks has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) ("the Application") challenging the validity of his conviction and sentence in Weld County District Court case number 09CR959. On September 3, 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 October 22, 2014, Respondents filed their Pre-Answer Response (ECF No. 12). On November 4, 2014, Mr. Brooks filed a reply (ECF No. 13) to the Pre-Answer Response.
The Court must construe the Application and other papers filed by Mr. Brooks 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.
The relevant factual background was described by the Colorado Court of Appeals as follows:
Defendant was indicted on twenty-five counts of securities fraud and one count of theft. He pleaded guilty to four of the securities fraud counts and agreed to pay a set amount of itemized restitution. In exchange, the People agreed to dismiss the remaining charges. The parties also stipulated to a sentencing cap of thirty-six years for the four counts to which defendant pleaded guilty. The court conducted a providency hearing and accepted defendant's plea. At the sentencing hearing, the court considered statements from victims of the four nondismissed counts as well as victims of the dismissed counts. The court sentenced defendant to a combined thirty-two years in the Department of Corrections. Defendant's motion for reconsideration of his sentence was denied.
People v. Brooks, No. 12CA1781, slip op. at 1 (Colo.App. Mar. 6, 2014) (ECF No. 12-6 at 2). Although Mr. Brooks filed a direct appeal, he later moved to dismiss the appeal and that motion was granted on January 28, 2011. ( See ECF No. 12-4.)
On February 16, 2011, Mr. Brooks filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. ( See ECF No. 12-2.) Counsel was appointed to represent Mr. Brooks and counsel filed a supplement to the Rule 35(c) motion. ( See ECF No. 12-3.)
In his postconviction motion, defendant claimed that his Crim. P. 11 advisement was inadequate and that his trial counsel provided ineffective assistance by (1) misadvising defendant of the effect of his plea; (2) failing to consult or employ a securities fraud, business law, or contract law expert; and (3) providing inadequate representation at sentencing. He also alleged his trial counsel erroneously told him he could not withdraw his guilty plea prior to the sentencing hearing.
In a written order, the district court discussed the majority of defendant's postconviction allegations but did not expressly address trial counsel's advice regarding withdrawal of the plea. The court concluded that defendant's claims did not warrant relief and denied his postconviction motions without a hearing.
(ECF No. 12-6 at 2-3.) On appeal, Mr. Brooks "challenge[d] only the district court's summary dismissal of his allegation that counsel told him he could not withdraw his plea." (Id. at 3.) The Colorado Court of Appeals deemed abandoned "[a]ny issues raised in the postconviction motion but not reasserted on appeal." (Id. ) On March 6, 2014, the trial court's order denying the Rule 35(c) motion was affirmed. ( See id. ) Mr. Brooks did not seek certiorari review in the Colorado Supreme Court.
The Application was filed on August 15, 2014, and Mr. Brooks asserts the following eight claims for relief: (1) trial counsel was ineffective "by failing to consult or employ a securities fraud, business law, or contract law expert because counsel was not proficient in the... applicable substantive and procedural laws of securities fraud" (ECF No. 1 at 5); (2) trial counsel was ineffective "by misadvising the applicant of the effect of his plea" ( id. at 12); (3) trial counsel was ineffective "by providing inadequate representation at sentencing" ( id. at 14); (4) trial counsel was ineffective and violated due process "by erroneously telling the applicant he could not withdraw his guilty plea prior to sentencing" ( id. at 18); (5) the trial court violated due process "by failing to properly advise the applicant of the effect of his plea due to a deficient Rule 11 advisement" ( id. at 19); (6) the trial court violated due process "by denying [the applicant] post-conviction relief based upon inaccurate and incomplete information" ( id. at 25); (7) the Colorado Court of Appeals violated due process "by deciding to deny [the applicant] post-conviction relief based upon inaccurate and incomplete information" ( id. at 26); and (8) trial counsel was ineffective "when the errors are considered cumulatively" ( id. at 27).
The Court notes initially that claims 6 and 7 may not be raised in this habeas corpus action because there is no federal constitutional right to postconviction review in the state courts. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Thus, a claim of constitutional error that "focuses only on the State's post-conviction remedy and not the judgment which provides the basis for [the applicant's] incarceration... states no cognizable federal habeas claim." Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998); see also Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (noting that petitioner's challenge to state "post-conviction procedures on their face and as applied to him would fail to state a federal constitutional claim cognizable in a federal habeas proceeding"). Mr. Brooks contends in claims 6 and 7 only that the trial court and the ...