Mackey v. Hanson

          ORDER TO DISMISS IN PART AND FOR ANSWER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.

         Applicant Kenneth D. Mackey is a prisoner in the custody of the Colorado Department of Corrections. Mr. Mackey has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, Docket No. 1, challenging the validity of his conviction in Arapahoe County District Court, Case Number 2013CR2631.

         On April 11, 2019, Magistrate Judge Gordon P. Gallagher 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 April 26, 2019, Respondents filed their Pre-Answer Response, Docket No. 7, arguing that claim two in the Application should be dismissed. On May 9, 2019, Mr. Mackey filed a Pre-Answer Response Reply, Docket No. 8.

         The Court must construe the Application and other papers filed by Mr. Mackey 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. Mackey was convicted by a jury of first degree murder after deliberation, felony murder, attempted first degree murder after deliberation, two counts of aggravated robbery, first degree burglary, conspiracy to commit aggravated robbery, conspiracy to commit first degree burglary, and second degree aggravated motor vehicle theft. He was sentenced to life in prison without the possibility of parole. On March 29, 2018, the Colorado Court of Appeals affirmed the judgment of conviction. See Docket No. 7-4. On September 10, 2018, the Colorado Supreme Court denied Mr. Mackey's petition for writ of certiorari on direct appeal. See Docket No. 7-3.

         Mr. Mackey asserts three claims in the Application. Claim one is a Fourth Amendment claim in which he contends the trial court erroneously denied his motion to suppress GPS data procured by an allegedly illegal search. Mr. Mackey contends in claim two that his state and federal constitutional right to a fair trial was violated by admission of prejudicial evidence of other misconduct. Finally, he contends in claim three that his Sixth Amendment right to counsel was violated when the trial court denied his motion for substitution of counsel.

         II. FEDERAL CONSTITUTIONAL VIOLATION

         Respondents first argue that claim two must be dismissed because the claim is not a federal constitutional claim. Claim two relates to the admission of evidence that Mr. Mackey was involved in the robbery of a Subway sandwich store the day before the crimes for which he was charged in Case Number 2013CR2631. Mr. Mackey specifically argues that evidence of the Subway robbery was admitted at his trial in violation of the Colorado Rules of Evidence and People v. Spoto, 795 P.2d 1314 (Colo. 1990). See Docket No. 1 at pp.22-26. Mr. Mackey also indicates in the heading of claim two that his state and federal constitutional right to a fair trial was violated by admission of prejudicial evidence of other misconduct, and he concludes his argument in support of claim two by asserting that “the district court's ruling violated [his] constitutional right to a fair trial.” Docket No. 1 at pp.22, 26. However, Mr. Mackey cites no federal law in support of claim two and he makes no reasoned argument that his federal constitutional rights were violated by admission of evidence of the Subway robbery.

         Relief under § 2254 is not available for violations of state law. See Richmond v. Embry, 122 F.3d 866, 870 (10th Cir. 1997). Instead, a federal habeas court is limited to deciding whether there has been a violation of “the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). Thus, habeas corpus relief is available for an alleged violation of state evidentiary rules only if the “state law decision is so fundamentally unfair that it implicates federal due process.” Leatherwood v. Allbaugh, 861 F.3d 1034, 1043 (10th Cir. 2017). However, “[a] habeas applicant cannot transform a state law claim into a federal one merely by attaching a due process label.” Id.

         Mr. Mackey's conclusory references in claim two to a constitutional right to a fair trial are not sufficient to transform the state law evidentiary claim into a federal constitutional claim. See Shelman v. Whitten, No. 19-7002, 2019 WL 2120772 at *2 (10th Cir. May 14, 2019) (attaching a federal constitutional “due process label” to a state claim does not transform a state law claim into a federal claim). Therefore, claim two is not a cognizable federal habeas corpus claim and must be dismissed. In any event, even assuming claim two could be construed liberally as asserting a federal constitutional claim, the claim was not fairly presented to the state courts as a federal constitutional claim and also is subject to dismissal for the reasons discussed below.

         III. ONE-YEAR LIMITATION PERIOD

         Respondents do not argue that this action is barred by the one-year limitation period in 28 U.S.C. § 2244(d).

         IV. EXHAUSTION ...