United States District Court, D. Colorado
JONATHAN N. ESTES, Petitioner,
T. G. WERLICH, M. D. CARVAJAL, RICK RAEMISCH, and CYNTHIA COFFMAN, Respondents.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty United States Magistrate Judge.
the Court is an Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 [filed February 8,
2016; ECF No. 9] and Petitioner's Request for Oral
Argument and for the Court to Appoint Counsel [filed
December 30, 2016; ECF No. 70]. Petitioner alleges he is
entitled to relief, because his trial counsel was ineffective
under Strickland v. Washington, 466 U.S. 668 (1984).
On March 31, 2016, Respondents filed an Answer to
Petitioner's Application. After Petitioner filed his
Reply, the Honorable William J. Martinez referred the case to
this Court for issuance of a report and recommendation. ECF
No. 55. The Court finds that oral argument or an evidentiary
hearing will not assist it in the adjudication of the
Application and, thus, Petitioner's request for oral
argument will be denied. Because the Court holds that some of
Petitioner's unexhausted claims are not clearly barred by
a Colorado procedural rule, the Court recommends denying
Petitioner's Application for failure to exhaust state
remedies, and staying the case until Petitioner has asserted
his claims in state court.
2006, a jury in the Denver District Court convicted
Petitioner of attempted first degree murder and attempted
robbery. Am. Appl. for Writ of Habeas Corpus 1-2, ECF No. 9.
After Petitioner's direct appeals concluded on May 17,
2010, Petitioner filed a timely application for collateral
review in state court under Colo. R. Crim. P. 35(c). Public
Documents 288-95. The district court appointed counsel for
Petitioner, who amended the application and alleged
ineffective assistance of trial counsel based on
counsel's failure to introduce relevant evidence,
conflict of interest, and failure to raise the marital
privilege. Id. at 309-20.
the district court held an evidentiary hearing, but while the
application was still pending, Petitioner filed a letter and
supplemental, which requested a supplemental evidentiary
hearing on additional claims for ineffective assistance of
trial counsel. Id. at 373-91. Petitioner claimed he
was entitled to a rehearing, because his postconviction
counsel was ineffective for failing to raise his
newly-asserted claims. Id. Additionally,
Petitioner's postconviction counsel acknowledged to the
district court that she provided ineffective assistance by
missing a critical piece of evidence, which would have led
her to pursue different claims. Public Documents 438-39.
April 28, 2012, the district court denied Petitioner's
Rule 35(c) application and his request for a rehearing
without analyzing the merits of Petitioner's
ineffective-assistance-of-postconviction-counsel claim. ECF
No. 20-13; Public Documents 455-61. The Colorado Court of
Appeals affirmed the district court's decision on June
19, 2014. ECF No. 20-10. The court held that the district
court did not err when it denied Petitioner's request for
a rehearing, because Petitioner's request raised
which can be determined only after the conclusion of initial
postconviction relief proceedings. Id. at 9. Because
the Court had not decided Petitioner's postconviction
appeal, Petitioner's claim was not yet proper.
the Colorado Supreme Court denied certiorari, Petitioner
filed the present Application on February 8, 2016. Am. Appl.
for Writ of Habeas Corpus, ECF No. 9. Petitioner's
Application asserts five claims for ineffective assistance of
trial counsel: (1) failure to interview or call critical
witnesses at trial, (2) failure to effectively cross examine
witnesses' testimony and correct false testimony, (3)
failure to object to prejudicial and inadmissible evidence or
request a limited-purpose jury instruction, (4) failure to
object when the prosecution did not present a witness it said
would testify, and (5) pretrial counsel's conflict of
interest stemming from the public defenders' concurrent
representation of an alternative suspect. Id. at
filed an Answer to Petitioner's Application on March 31,
2016. Answer to Am. Appl. for Writ of Habeas Corpus, ECF No.
47. Respondents assert that although Petitioner has not
exhausted his present claims for ineffective assistance of
trial counsel, the claims are procedurally barred by two
provisions of Colorado law: Colorado's three-year statute
of limitations on felony postconviction collateral attacks
and Colorado's prohibition on claims that a petitioner
could have presented in an earlier motion. Id. at
8-9. According to Respondents, because Petitioner cannot
establish cause and actual prejudice for the procedural
default, the Court should deny his Application. Id.
filed a Reply in Support of his Application on June 20, 2016.
Reply, ECF No. 49. Petitioner acknowledges that his claims
are procedurally defaulted, but argues that he can establish
cause and prejudice. Id. Petitioner claims the
actual innocence exception entitles him to review on the
merits, because witnesses have submitted affidavits to the
court attesting to his innocence. Id. at 1-2.
Additionally, Petitioner asserts he can establish cause under
Martinez v. Ryan, 132 S.Ct. 1309 (2012), because his
ineffective-assistance claims are substantial and his
postconviction counsel was ineffective. Reply 2-14.
an initial review of the issues in Petitioner's
Application, the Court requested supplemental briefing on
whether Colorado law would procedurally bar Petitioner from
asserting his claims in a subsequent postconviction petition.
Order Requesting Suppl. Briefing, ECF No. 68. The Court
acknowledged that the procedural rules Respondents asserted
apply to Petitioner's claims. Id. at 4. However,
the Court noted that both procedural bars contain exceptions,
which the parties did not discuss in their briefs.
Id. at 3-5. The Court requested briefing on whether
ineffective assistance of postconviction counsel satisfies
any of these exceptions.
December 27, 2016, Petitioner filed his supplemental brief.
Pet'r's Suppl. Br., ECF No. 69. Petitioner argues the
Court should not require him to return to state court,
because Martinez does not require exhaustion of
postconviction-counsel claims. Id. at 2-3.
Additionally, Petitioner asserts Colorado courts would not
excuse his failure to raise the present
ineffective-assistance claims in a successive postconviction
petition that he filed before he appealed his initial
petition. Id. at 5.
filed their supplemental brief on January 3, 2017.
Resp'ts' Suppl. Br., ECF No. 72. Respondents assert
the Court should first analyze whether Petitioner has stated
a successful Martinez claim,  because Colorado
courts will not find justifiable excuse for failure to assert
his ineffective-assistance-of-trial-counsel claims unless his
postconviction counsel was ineffective. Id. at 4.
However, Respondents acknowledge that if Petitioner has
asserted a meritorious Martinez claim, “his
underlying trial-counsel claims are not ‘clearly'
procedurally barred in state court, because there is some
arguable merit to the notion that he is entitled to a
reinstated postconviction hearing.” Id.
after full briefing of Petitioner's Application, the
issues pending before the Court are whether Colorado
procedural law would prevent Petitioner from raising his
unexhausted ineffective-assistance claims in state court, and
if so, whether Petitioner has established cause and prejudice
for his procedural default under the actual innocence
exception or Martinez. The Court may address the
merits of Petitioner's claims only if they are
procedurally barred from state-court review and Petitioner
has established cause and prejudice for the procedural
of available and adequate state court remedies is a
prerequisite to habeas corpus applications in federal court.
28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S.
509 (1982). Generally, state remedies are not exhausted until
the highest state appellate court has had an opportunity to
consider the merits of the claim. See Pitchess v.
Davis, 421 U.S. 482 (1975); Qureshi v.
Diesslin, 654 F.Supp. 555 (D. Colo. 1987). However, a
Colorado statute states that federal courts may consider a
claim exhausted if it has been fairly presented to the
Colorado Court of Appeals; it need not be raised to the
Colorado Supreme Court. Colo.App. R. 51.1; Garrett v.
Werholtz, No. 13-cv-001379-MSK, 2013 WL 5289570 (D.
Colo. Sept. 18, 2013). Because of the “‘strong
presumption' in favor of requiring exhaustion of state
remedies, ” federal habeas courts should require
exhaustion if available state remedies might exist. See
Anderson v. Sirmons, 476 F.3d 1131, 1137 (10th Cir.
where requiring a petitioner to exhaust his state remedies
would be futile because it is clear that an independent and
adequate state procedural rule would bar the petitioner's
claims, federal habeas courts should not require the
petitioner to return to state court. See Id. at
1137-38; Castille v. Peoples, 489 U.S. 346, 351
(1989) (stating that anticipatory procedural default applies
only “if it is clear that [the] claims are now
procedurally barred under [state] law”). A state
procedural rule “is independent if it is separate and
distinct from federal law.” Maes v. Thomas, 46
F.3d 979, 985 (10th Cir. 1995). A rule is adequate if it has
been applied evenhandedly “in the vast majority of
cases.” Id. If the rule is adequate and
independent, federal courts must treat the claim as
procedurally defaulted. Id. If a claim is