United States District Court, D. Colorado
KENNETH D. MACKEY, Applicant,
v.
MATTHEW HANSON, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
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 ...