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Estes v. Werlich

United States District Court, D. Colorado

January 20, 2017

JONATHAN N. ESTES, Petitioner,


          Michael E. Hegarty United States Magistrate Judge.

         Before 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.[1]


         In 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.

         After 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.

         On 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 ineffective-assistance-of-postconviction-counsel issues, 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. Id.

         After 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 12-17.

         Respondents 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. at 13-55.

         Petitioner 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.

         After 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.

         On 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.

         Respondents 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, [2] 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.

         Therefore, 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 default.


         Exhaustion 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. 2007).

         However, 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 ...

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