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Estes v. Werlich

United States District Court, D. Colorado

March 6, 2017

JONATHAN N. ESTES, Petitioner,



         This is an action for Writ of Habeas Corpus by Jonathan N. Estes (“Petitioner”) pursuant to 28 U.S.C. § 2254. This matter is before the Court on the January 20, 2017 Recommendation by United States Magistrate Judge Michael E. Hegarty (“Recommendation, ” ECF No. 75) that Petitioner's Application for Writ of Habeas Corpus (“Application, ” ECF No. 9) be denied and stayed pending Petitioner's exhaustion of state court remedies. Rick Raemisch and Cynthia Coffman (collectively, “Respondents”) filed an objection to the Recommendation (ECF No. 76), but later withdrew that objection (ECF No. 81). Petitioner also filed an objection to the Recommendation. (“Objection, ” ECF No. 78.) For the reasons set forth below, Petitioner's Objection is overruled, the Magistrate Judge's Recommendation is adopted, and Petitioner's Application is denied.

         I. BACKGROUND

         The facts relevant to a resolution of Petitioner's Application are detailed in the Recommendation. (See ECF No. 75 at 2-5.) Briefly, Petitioner, proceeding pro se, initiated this action by filing an Application on January 19, 2016, attacking the validity of his underlying state court conviction. (ECF No. 1 (citing 28 U.S.C. § 2254).)

         On February 10, 2006, a jury in the Denver District Court convicted Petitioner of attempted first degree murder and attempted aggravated robbery. (State Court Docket.[1]) After Petitioner's direct appeals concluded on May 17, 2010, Petitioner filed a timely petition, pro se, for collateral review in state court under Colo. R. Crim. P. 35(c). (ECF No. 39, Public Records at 288.) Around the same time, Petitioner also filed a Rule 35(b) petition. (See State Court Docket.) The district court appointed counsel for Petitioner, who amended his Rule 35(c) petition and alleged ineffective assistance of trial counsel based on trial counsel's failure to introduce relevant evidence, conflict of interest, and failure to raise marital privilege. (Id. at 311-12.) After the district court held an evidentiary hearing, but while the Rule 35(c) petition was still pending, Petitioner filed a letter and supplemental pleading, which requested a supplemental evidentiary hearing on additional claims for ineffective assistance of trial counsel. (Id. at 373-91.) Petitioner asserted that he was entitled to a rehearing because his post-conviction counsel was ineffective for failing to raise his newly-asserted claims. (Id.) On April 28, 2012, the district court denied Petitioner's Rule 35(c) petition and his request for a rehearing without analyzing the merits of Petitioner's ineffective assistance of post-conviction counsel claim. (Id. at 455-61.) Petitioner appealed to the Colorado Court of Appeals. (State Court Docket.)

         On June 6, 2012, while that appeal was pending, Petitioner filed a successive Rule 35(c) petition with an accompanying supplemental letter. (State Court Docket.) On June 29, 2012, Senior Judge Frank Plaut issued a minute order noting that due to the appeal, the court lost jurisdiction to hear Petitioner's Rule 35(b) petition and any other pending motions (which may or may not have included consideration of his successive Rule 35(c) petition). (State Court Docket.[2])

         On June 19, 2014, the Colorado Court of Appeals affirmed the district court's decision on the original Rule 35(c) petition, finding no error when the district court denied that petition, as well as when it denied his request for a rehearing because his request raised ineffective assistance of post-conviction counsel issues, which can only be determined after the conclusion of initial post-conviction relief proceedings. (ECF No. 20-10 at 10-11 (citing People v. Clouse, 74 P.3d 336, 341 (Colo.App. 2002) (noting that, in previous cases, ineffective assistance of post-conviction counsel claims were “either initiated or to be initiated after the conclusion of post-conviction relief appeals” and recognizing “the impossibility of asserting ineffective post-conviction counsel claims until the conclusion of post-conviction proceedings”)).)

         The Colorado Supreme Court denied certiorari on February 9, 2015. (ECF No. 20-12 at 1.) Petitioner then filed the present action, asserting 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 another suspect. (ECF No. 9 at 12-17.) In his Application, Petitioner notes that his present claims for ineffective assistance of trial counsel “were not presented to the states [sic] highest court due to errors caused by initial-collateral-review counsel.” (Id. at 3.)

         On March 31, 2016, Respondents filed an Answer asserting that Petitioner has not exhausted his claims in state court, and further, his claims are now procedurally defaulted. (ECF No. 47 at 8-9.) Specifically, Respondents contend that Petitioner's claims are procedurally barred by two provisions of Colorado law: (1) Colo. Rev. Stat. § 16-5-402, which establishes a three-year statute of limitations on felony post-conviction collateral attacks, and (2) Colo. R. Crim. P. 35(c)(3)(VII), which prohibits successive petitions asserting claims that could have previously been brought in a prior petition. (Id. at 9.)

         On June 20, 2016, Petitioner replied agreeing that his claims have not been exhausted and are now procedurally defaulted; however, Petitioner contends that he can establish “cause and prejudice” to excuse the default. (ECF No. 49.) Specifically, Petitioner claims that the actual innocence exception entitles him to review on the merits and, separately, that he can establish cause under Martinez v. Ryan, 566 U.S. 1, 17 (2012), because his ineffective assistance claims are substantial and his post-conviction counsel was ineffective. (Id. at 2-14.) Judge Hegarty then requested supplemental briefing on whether Colorado law would procedurally bar Petitioner from asserting his claims in a subsequent post-conviction proceeding in state court.


         A. Standard of Review

         When a magistrate judge issues a recommendation on a prisoner petition, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection to a recommendation is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). Here, Petitioner filed a timely objection to Judge Hegarty's Recommendation. (See ECF No. 78.) Therefore, this Court reviews the issues before it de novo.

         Further, in considering Judge Hegarty's Recommendation, the Court is also mindful of Petitioner's pro se status, and accordingly, reads his pleadings and filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as advocate for Petitioner, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall ...

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