United States District Court, D. Colorado
MICHAEL A. BOETGER, Applicant,
ACTING WARDEN BURNELL, Buena Vista Correctional Facility, and JOHN SUTHERS, the Attorney General of the State of Colorado, Respondents.
ORDER TO DISMISS IN PART AND FOR ANSWER
PHILIP A. BRIMMER, District Judge.
Applicant, Michael Boetger, is in the custody of the Colorado Department of Corrections ("CDOC") at the Correctional Complex in Buena Vista, Colorado. He has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 1] challenging the validity of his conviction and sentence imposed in the District Court of Teller County, Colorado. Mr. Boetger has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On March 21, 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 Pre-Answer Response [Docket No. 10] on April 11, 2014. Applicant filed a Reply [Docket No. 19] on September 22, 2014, after obtaining an extension of time.
The Court construes Mr. Boetger's filings 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 act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the Application, in part.
I. BACKGROUND AND STATE COURT PROCEEDINGS
In People v. Boetger, 12CA688 (Colo.App. Dec. 26, 2013) (unpublished) ( Boetger II), the Colorado Court of Appeals summarized the procedural history of Teller County District Court Case No. 06CR185 as follows:
After his first trial resulted in a hung jury, defendant pleaded guilty to sexual assault on a child by one in a position of trust.
Before he was sentenced, defendant filed two letters requesting that the court allow him to withdraw his guilty plea. The court treated the letters as a Crim. P. 32(d) motion and appointed conflict-free counsel to represent him.
Thereafter, defendant filed a supplemental Crim. P. 32(d) motion, arguing that his plea was not made knowingly and voluntarily because (1) plea counsel told him he would not endorse an expert witness or obtain the transcript from the first trial as he could not afford them; (2) plea counsel assured him that he would be released from prison in six to eight years if he completed sex offender classes; and (3) he was not advised that he could be reincarcerated for life if his parole was revoked.
After holding an evidentiary hearing, the court denied the Crim. P. 32(d) motion, finding that defendant did not establish that there was a fair and just reason to withdraw the guilty plea.
The court then sentenced defendant to eight years to life in the custody of the Department of Corrections (DOC).
On direct appeal, a division of this court upheld the district court's order denying defendant's Crim. P. 32(d) motion. See People v. Boetger, (Colo.App. No. 08CA2011, Aug. 26, 2010) (not published pursuant to C.A.R. 35(f)) ( Boetger I ).
In February 2012, defendant filed a pro se Crim. P. 35(c) motion, seeking to set aside his guilty plea. He argued that his plea was not made knowingly and voluntarily because:
defense counsel were ineffective when they violated various rules of professional conduct and failed to:
▪ prepare for his second trial by: obtaining a transcript of the first trial, endorsing exculpatory witnesses, and obtaining exculpatory evidence; and
▪ advise him that very few sex offenders who had been sentenced to an indeterminate sentence had been paroled;
the district court failed to advise him that:
▪ he likely would not be paroled after he served the minimum term of his sentence;
▪ he was giving up his Fifth Amendment right against self-incrimination for the rest of his life;
▪ he could not have contact with any family member or friend under the age of 18;
▪ he would have to register as a sex offender; and
▪ the DOC did not have the funding to provide treatment for all sex offenders;
when he entered the plea, he reasonably believed that the minimum term of the sentence had a "very real meaning and would be a real force in his release from prison, " but he has since learned that it is "worthless and devoid of any effective significance or influence"; and
the prosecutor enticed him into taking the plea by reducing the offer of the minimum term of the sentence from twelve to eight years while knowing it was meaningless because the DOC had not been releasing sex offenders on parole.
Defendant also argued that (1) the district court abused its discretion when it denied his Crim. P. 32(d) motion; (2) Crim. P. 32(d) counsel was ineffective when she failed to: (a) argue that he agreed to the plea because defense counsel were not prepared for trial; and (b) advise him to plead the words "legal innocence"; (3) one of his defense counsel committed perjury during the Crim. P. 32(d) hearing when he testified that he hired a representative to attend each day of his first trial and report to him when there was no such representative; and (4) there was cumulative error based on (a) defense counsel's failure to prepare for trial, (b) Crim. P. 32(d) counsel's ineffectiveness, (c) his belief that he would only serve six to eight years, and (d) defense counsel's perjury during the Crim. P. 32(d) hearing.
The district court denied the Crim. P. 35(c) motion, finding that the issues in the motion had been "previously raised and litigated" and had been "considered and rejected" in the district court and in Boetger I.
Docket No. 10-8 at 2-5.
The Colorado Court of Appeals affirmed the district court's order denying post-conviction relief, determining that all of Applicant's claims, except for his ineffective assistance of Crim. P. 32(d) counsel claim, were procedurally barred, and that the ineffective assistance claim failed as a matter of law because applicant "failed to sufficiently allege that there was prejudice." Id. at 7-11. Applicant thereafter filed a petition for certiorari review in the Colorado Supreme Court, which was denied on November 3, 2014. Docket No. 22-1.
On March 4, 2014, Mr. Boetger filed his federal application under 28 U.S.C. § 2254 asserting 12 claims for relief. Docket No. 1.
In the Pre-Answer Response, Respondents concede that the Application is timely. Docket No. 10 at 6-8. Respondents argue, however, that claims 2, 5, 9, 10, and 11 are not cognizable on federal habeas review. Id. at 14, 29-30. Respondents maintain that the ...