Civil Action No. 19-cv-00707-GPG
RECOMMENDATION REGARDING APPLICATION FOR WRIT OF HABEAS CORPUS
This matter comes before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) ("the Application") filed pro se by Applicant on March 8, 2019. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 14.)
"(ECF # 1)" is an example of the convention I use to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). I use this convention throughout this Recommendation.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). --------
The Court must construe the Application and other papers filed by Mr. Hamilton 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.
The Court has reviewed the filings to date. The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Application be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Hamilton is challenging the validity of his conviction and sentence in Fremont County District Court case number 08CR122. On February 11, 2009, Mr. Hamilton agreed to plead guilty to one count of internet luring of a child. (See ECF No. 11-1 at pp.2-4, 8-9.) On May 6, 2009, he was sentenced to an indeterminate term of two years to life in prison. (See id. at 8.) Mr. Hamilton did not file a direct appeal.
On November 6, 2009, and again on August 9, 2010, Mr. Hamilton filed in the trial court letters requesting copies from the court file and free transcripts. (See id. at pp.7.) On April 13, 2012, he filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See id.; ECF No. 11-2.) On May 8, 2012, the trial court denied the Rule 35(c) motion. (See ECF No. 11-1 at p.7.) On April 24, 2014, the Colorado Court of Appeals affirmed the trial court's order denying the Rule 35(c) motion. (See ECF No. 11-4.) On May 11, 2015, the Colorado Supreme Court denied Mr. Hamilton's petition for writ of certiorari. (See ECF No. 11-5.)
The Application was filed on March 8, 2019. Mr. Hamilton asserts one claim contending his Fourth Amendment rights were violated because of an illegal wiretap of his cellular telephone. According to Mr. Hamilton, the police did not obtain a warrant and he did not consent to a search. He specifically asks the Court to remand the case to the state courts for a determination of the voluntariness of his consent under the new standards announced in People v. Delage, 418 P.3d 1178 (Colo. 2018).
On March 11, 2019, the Court 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 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 March 22, 2019, Respondents filed their Pre-Answer Response (ECF No. 11) arguing that the action is barred by the one-year limitation period and that Mr. Hamilton's Fourth Amendment claim is unexhausted and procedurally defaulted. Respondents also assert that the Fourth Amendment claim is not a cognizable habeas corpus claim. On April 17, 2019, in reply to the Pre-Answer Response, Mr. Hamilton filed a Motion for a Stay/and a Dismissal With Prejudice of the Habeas Corpus Pending Before This Court (ECF No. 12). Mr. Hamilton concedes that the Fourth Amendment claim is not exhausted and he asks the Court to stay this action so he can return to state court to exhaust state remedies. Because the Court finds that the action is subject to dismissal for reasons other than failure to exhaust as discussed below, the Court will recommend that the motion for stay be denied as moot.
A. ONE-YEAR LIMITATION PERIOD
Respondents first argue that the action is barred by the one-year limitation period in 28 U.S.C. § 2244(d). That statute provides as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d).
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
In order to apply the one-year limitation period the Court first must determine the date on which Mr. Hamilton's conviction became final. See 28 U.S.C. § 2244(d)(1)(A). The starting point for this determination is May 6, 2009, the date on which Mr. Hamilton was sentenced. (See ECF No. 11-1 at 8.) Pursuant to the version of Rule 4(b) of the Colorado Appellate Rules applicable at the time Mr. Hamilton was sentenced, he had forty-five days to file a notice of appeal following his sentencing but he did not do so. Therefore, his conviction became final when the time to appeal expired. Because the forty-fifth day after May 6, 2009, was Saturday, June 20, 2009, the time to appeal extended two additional days until Monday, June 22, 2009. See C.A.R. 26(a). Mr. Hamilton does not argue that his conviction became final on some other date.
Mr. Hamilton does not allege that he was prevented by unconstitutional state action from filing this action sooner and he knew or could have discovered the factual predicate for his Fourth Amendment claim before the conviction was final. See 28 U.S.C. § 2244(d)(1)(B) & (D). He also fails to allege facts that implicate § 2244(d)(1)(C) because, although he cites a Colorado Supreme Court case decided in 2018, People v. Delage, 418 P.3d 1178 (Colo. 2018), nothing in Delage is relevant to a constitutional right newly recognized by the United States Supreme Court that is retroactively applicable to cases on collateral review. Therefore, the Court finds the one-year limitation period began to run on June 22, 2009.
The Court next will address tolling. Pursuant to § 2244(d)(2), a properly filed state court postconviction motion tolls the one-year limitation period while the motion is pending. An application for postconviction review is properly filed within the meaning of § 2244(d)(2) "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). These requirements include:
(1) the place and time of filing; (2) the payment or waiver of any required filing fees; (3) the obtaining of any necessary judicial authorizations that are conditions precedent to filing, such as satisfying any filing preconditions that may have been imposed on an abusive filer; and (4) other conditions precedent that the state may impose upon the filing of a post-conviction motion.Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000) (footnote omitted).
The issue of whether a state court postconviction motion is pending for the purposes of § 2244(d)(2) is a matter of federal law, but "does require some inquiry into relevant state procedural laws." See Gibson v. Klinger, 232 F.3d 799, 806 (10th Cir. 2000). The term "pending" includes "all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application." Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999). Furthermore, "regardless of whether a petitioner actually appeals a denial of a post-conviction application, the limitations period is tolled during the period in which the petitioner could have sought an appeal under state law." Gibson, 232 F.3d at 804.
In addition to statutory tolling under § 2244(d)(2), the one-year limitation period also may be tolled for equitable reasons. Holland v. Florida, 560 U.S. 631, 649 (2010). Generally, equitable tolling is appropriate if the petitioner shows both "that he has been pursuing his rights diligently" and "that some extraordinary circumstance stood in his way" and prevented him from filing in a timely manner. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). A showing of excusable neglect is not sufficient to justify equitable tolling. See Gibson, 232 F.3d at 808. Furthermore, in order to demonstrate he pursued his claims diligently, the petitioner must "allege with specificity 'the steps he took to diligently pursue his federal claims.'" Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008) (quoting Miller, 141 F.3d at 978).
Mr. Hamilton did not file any postconviction motions within one year after June 22, 2009, that could have tolled the one-year limitation period pursuant to § 2244(d)(2). The letters Mr. Hamilton filed seeking copies of state court filings and transcripts did not toll the one-year limitation period under § 2244(d)(2) because Mr. Hamilton fails to demonstrate, and there is no indication in the record before the Court, that either motion included a substantive claim for relief with respect to the pertinent judgment. See, e.g., May v. Workman, 339 F.3d 1236, 1237 (10th Cir. 2003) (finding that postconviction motions for transcripts and petitions for writs of mandamus relating to those motions do not toll the one-year limitation period pursuant to § 2244(d)(2)); Pursley v. Estep, 216 F. App'x 733, 734 (10th Cir. 2007) (finding that motions for appointment of counsel in postconviction proceedings pursuant to Colorado Rule 35(c) that did not state adequate factual or legal grounds for relief did not toll the one-year limitation period). "The simple fact that [Mr. Hamilton] mailed something to the court is surely insufficient to trigger § 2244(d)(2)'s tolling provision." Sibley v. Culliver, 377 F.3d 1196, 1200 (11th Cir. 2004). In addition, the August 9, 2010 letter also could not toll the one-year limitation period under § 2244(d)(2) because that letter was filed after the one-year limitation period already had expired. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (stating that properly filed state court postconviction motions toll the one-year limitation period only if they are filed within the one-year limitation period). Mr. Hamilton's postconviction Rule 35(c) motion filed on April 13, 2012, also was filed after the one-year limitation period already had expired and could not toll the one-year limitation period under § 2244(d)(2). See id.
The Court also finds no basis for equitable tolling of the one-year limitation period because Mr. Hamilton fails to identify the existence of any extraordinary circumstances beyond his control that prevented him from filing a timely application. Therefore, the action is barred by the one-year limitation period in § 2244(d).
B. EXHAUSTION AND PROCEDURAL DEFAULT
Respondents also contend that Mr. Hamilton's Fourth Amendment claim has not been fairly presented to the Colorado state courts and now is procedurally defaulted. Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus may not be granted unless it appears that the applicant has exhausted state remedies or that no adequate state remedies are available or effective to protect the applicant's rights. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is satisfied once the federal claim has been presented fairly to the state courts. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the federal issue be presented properly "to the highest state court, either by direct review of the conviction or in a postconviction attack." Dever, 36 F.3d at 1534.
Finally, "[t]he exhaustion requirement is not one to be overlooked lightly." Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). A state prisoner bringing a federal habeas corpus action bears the burden of showing he has exhausted all available state remedies for each particular claim. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992). A blanket statement that state remedies have been exhausted does not satisfy this burden. See Olson v. McKune, 9 F.3d 95 (10th Cir. 1993); see also Fuller v. Baird, 306 F. App'x 430, 431 n.3 (10th Cir. 2009) (stating a bald assertion unsupported by court records is insufficient to demonstrate state remedies are exhausted).
Respondents contend that Mr. Hamilton has not exhausted state remedies because, although he presented the Fourth Amendment claim to the trial court in the postconviction Rule 35(c) motion, he did not present the claim on appeal to the Colorado Court of Appeals. (See ECF No. 11-3.) As noted above, Mr. Hamilton concedes that the Fourth Amendment claim was not fairly presented to the state's highest court and is not exhausted. However, the unexhausted claim may not be dismissed for failure to exhaust state remedies if Mr. Hamilton no longer has an adequate and effective state remedy available to him. See Castille, 489 U.S. at 351. Respondents contend, and the Court agrees, that Mr. Hamilton no longer has an adequate and effective state remedy available to him to raise the unexhausted claim because any new postconviction motion would be subject to dismissal for at least two procedural reasons. First, a new postconviction motion would be untimely under state law. See Colo. Rev. Stat. § 16-5-402 (providing that a defendant convicted of felony other than a class 1 felony has three years to seek relief under Rule 35(c) unless he establishes good cause). Second, a new postconviction motion would be barred by Rule 35(c)(3)(VII) of the Colorado Rules of Criminal Procedure, which provides that, with limited exceptions not applicable to Mr. Hamilton, the state court must dismiss any claim that could have been presented in a prior appeal or postconviction proceeding.
Federal courts "do not review issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the default is excused through a showing of cause and actual prejudice or a fundamental miscarriage of justice." Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998). Even if an unexhausted claim has not actually been raised and rejected by the state courts on a procedural ground, the claim still is subject to an anticipatory procedural default if it is clear that the claim would be rejected because of an independent and adequate state procedural rule. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Application of this procedural default rule in the habeas corpus context is based on comity and federalism concerns. See id. at 730.
"A state procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision." English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). A state procedural ground is adequate if it "was firmly established and regularly followed." Beard v. Kindler, 558 U.S. 53, 60 (2009) (internal quotation marks omitted).
Colorado's statute of limitations for collateral attacks is an independent and adequate state procedural ground. See Klein v. Neal, 45 F.3d 1395, 1398 (10th Cir. 1995). Similarly, Rule 35(c)(3)(VII) of the Colorado Rules of Criminal Procedure also is an independent and adequate state procedural ground. See LeBere v. Abbott, 732 F.3d 1224, 1233 n.13 (10th Cir. 2013) (noting that several unpublished cases have indicated Colorado's rule barring claims that could have been raised previously is an independent and adequate state ground precluding federal habeas review). Therefore, Mr. Hamilton's Fourth Amendment claim is procedurally defaulted and cannot be considered unless he demonstrates cause and prejudice or a fundamental miscarriage of justice. See Jackson, 143 F.3d at 1317.
To demonstrate cause for his procedural default, Mr. Hamilton must show that some objective factor external to the defense impeded his ability to comply with the state's procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). "Objective factors that constitute cause include interference by officials that makes compliance with the State's procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to [applicant]." McCleskey v. Zant, 499 U.S. 467, 493-94 (1991) (internal quotation marks omitted). If Mr. Hamilton can demonstrate cause, he also must show "actual prejudice as a result of the alleged violation of federal law." Coleman v. Thompson, 501 U.S. 722, 750 (1991). A fundamental miscarriage of justice occurs when "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. Mr. Hamilton's pro se status does not exempt him from the requirement of demonstrating either cause and prejudice or a fundamental miscarriage of justice to overcome a procedural default. See Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994).
Mr. Hamilton fails to demonstrate cause and prejudice for his procedural default or that a fundamental miscarriage of justice will result if the Court does not consider the merits of his Fourth Amendment claim. Therefore, the claim is procedurally barred.
Finally, the Court agrees with Respondents that Mr. Hamilton's Fourth Amendment claim does not present a cognizable habeas corpus issue. "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973). Mr. Hamilton's Fourth Amendment claim relates to an alleged deprivation of his constitutional rights that occurred prior to his guilty plea. Therefore, the Application also is subject to dismissal for this reason.
For the reasons set forth herein, this Magistrate Judge respectfully
RECOMMENDS that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) be denied and the action be dismissed because the Fourth Amendment claim is untimely, procedurally barred, and not cognizable. It is
FURTHER RECOMMENDED that the Motion for a Stay/and a Dismissal With Prejudice of the Habeas Corpus Pending Before This Court (ECF No. 12) be denied as moot.
DATED at Grand Junction, Colorado, this 22nd day of April, 2019.
BY THE COURT:
Gordon P. Gallagher
United States Magistrate Judge