Opinion
Civil Action 16-cv-00141-WJM-MEH
10-22-2021
JONATHAN N. ESTES, Petitioner, v. T. G. WERLICH, Warden, M. D. CARVAJAL, Complex Warden, DEAN WILLIAMS, Director of C.D.O.C., and PHILIP J. WEISER, Attorney General of the State of Colorado, Respondents.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Before the Court are Petitioner's Letter asking the Court to excuse the statutory exhaustion requirement for claims one through four, lift the stay, and appoint counsel to represent him (“Motion to Excuse Exhaustion”) [filed July 13, 2021; ECF 159] and Letter requesting leave to amend the Amended Application to assert a new claim for relief and to add additional allegations in support of claim five (“Motion to Amend”) [filed August 9, 2021; ECF 169]. District Judge William J. Martinez has referred these motions for an order on the non-dispositive issues raised and for a report and recommendation on dispositive issues. ECF 171. The Court recommends denying the Motion to Excuse Exhaustion as moot. The Court further recommends that the Motion to Amend be granted in part and denied in part.
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. 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 and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
BACKGROUND
The procedural background of this case, as pertinent to the pending motions, is summarized below.
Petitioner initiated this action on January 19, 2016, by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. ECF 1. He filed an Amended Application on February 8, 2016. ECF 9. The Amended Application asserted five claims for relief. Claims one through four were based on counsel's alleged ineffective assistance in failing: (1) to interview or call critical witnesses at trial; (2) to effectively cross examine witnesses' testimony and correct false testimony; (3) to object to prejudicial and inadmissible evidence or request a limited-purpose jury instruction; and (4) to object when the prosecution did not present a witness it said would testify. Id. at 12-16. In claim five, Petitioner maintains that pre-trial counsel labored under a conflict of interest stemming from the Denver Office of the Public Defender's (“DOPD”) concurrent representation of an alternative suspect. Id. at 17.
Following initial review by the pro se division, the Amended Application was drawn to District Judge William J. Martinez and the undersigned. Judge Martinez issued an order of reference to the undersigned for a report and recommendation on the merits of the amended Application. ECF 55.
On January 20, 2017, this Court recommended that Judge Martinez find that the Amended Application was a mixed petition because claims one through four had not been exhausted in the state courts and it was not clear that Petitioner no longer had an available state court remedy, but claim five was likely procedurally defaulted, and, therefore, technically exhausted. ECF 75. The Court recommended that this action be stayed to allow Petitioner an opportunity to exhaust claims one through four in the state courts. Id. On March 6, 2017, Judge Martinez accepted the Recommendation, denied the amended Application without prejudice, and stayed the proceeding pending state court exhaustion. ECF 83. Petitioner was directed to notify the Court upon completion of the exhaustion process. Id. This case was then administratively closed on August 15, 2017, briefly re-opened to address the Petitioner's Fed.R.Civ.P. 60(b) motion, and closed again on January 6, 2020. ECF 92, 116, 132.
Following the March 6, 2017 Order, Petitioner filed a motion for post-conviction relief pursuant to Colo. Crim P. 35(c) in the state district court asserting the four unexhausted ineffective assistance of counsel claims. ECF 93 at 2. On March 10, 2020, the state district court denied the ineffective assistance claims on the merits following an evidentiary hearing. ECF 135-2. Petitioner then filed an appeal with the Colorado Court of Appeals which is pending. ECF 156 at 2.
Petitioner filed a Motion to Voluntarily Dismiss on January 26, 2021. ECF 139. In the motion, Petitioner requested the dismissal of claims one through four of the amended Application, and asked the Court to lift the stay so that he may proceed only on claim five (conflict of interest claim). Id. On June 23, 2021, the Court recommended that the Motion to Voluntarily Dismiss be granted. ECF 157. Although Petitioner requested and was granted an extension of time to file written objections to the June 23 Recommendation, ECF 167 at 7, he did not file any written objections.
On September 20, 2021, District Judge Martinez adopted the June 23 Recommendation. ECF 170. The Amended Application was reinstated, claims one through four of the Amended Application were dismissed without prejudice, the stay order was lifted, and the case reopened. Id. Remaining for disposition is claim five of the Amended Application.
LEGAL STANDARDS
A habeas application “may be amended or supplemented as provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Rule 15 of the Federal Rules of Civil Procedure governs the addition of new claims in a habeas corpus proceeding. Mayle v. Felix, 545 U.S. 644, 655 (2005). See Fed.R.Civ.P. 81(a)(4) (rules of civil procedure govern habeas cases to the extent not inconsistent with other governing law); Rule 12, Rules Governing § 2254 Cases (rules of civil procedure may be applied in habeas cases to the extent not inconsistent with § 2254 rules).
Under Rule 15(a)(1), a party may amend its pleading once as a matter of course. With regard to a second amendment, Rule 15(a)(2) provides that “a party may amend its pleading only with the opposing party's written consent or the court's leave” and further states that a district court should “freely give leave when justice so requires.” Leave to amend may be denied because of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). See also Duncan v. Manager, Dep't of Safety, City and Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005); Stafford v. Saffle, 34 F.3d 1557, 1560 (10th Cir. 1994).
“Untimeliness alone may be a sufficient basis for denial of leave to amend.” Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th Cir. 1990), especially when “the party filing the motion has no adequate explanation for the delay.” Woolsey v. Marion Laboratories, Inc., 934 F.2d 1452, 1462 (10th Cir.1991). See also Stafford, 34 F.3d at 1560 (concluding that district court did not abuse its discretion in denying motion to amend habeas petition where “the motion was not made until approximately seven years after the federal habeas action was commenced and no credible reasons were advanced as to why this claim was not asserted at that time.”); Cleveland v. Havenek, No. 12-6293, 509 Fed.Appx. 703, 705 (10th Cir. 2013) (denying prisoner's motion to amend habeas petition based on inexplicable undue delay).
ANALYSIS
I. Motion to Amend
A. Request to add new claim
Petitioner requests permission to add a new ineffective assistance of counsel claim premised on trial counsel's alleged failure to advise him of a five-year plea deal pursuant to which he would have received “18 months time served or been eligible for parole in less than 1 year.” ECF 169 at 1. Petitioner acknowledges that the new claim is procedurally defaulted because he failed to present it to the state courts. He argues, however, that the procedural default should be excused under the rule of Martinez v. Ryan, 566 U.S. 1 (2012) due to post-conviction counsel's ineffective representation. Id. at 3.
In Martinez, the Supreme Court held:
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.566 U.S. at 17.
Respondents object to the motion to add a new ineffective assistance of counsel claim based on Petitioner's undue delay in seeking leave to amend and further maintain that they would be prejudiced by the late amendment. ECF 173. Respondents assert that because the new claim has never been raised in the state courts, they would incur additional time and resources in investigating and responding to the merits of the claim. Id.
Petitioner filed an Amended Application on February 8, 2016 asserting five claims for relief. Respondents filed an Answer to the claims on May 31, 2016. ECF 37. This action was stayed approximately almost one year later, on March 6, 2017. Petitioner fails to explain why he did not assert his new ineffective assistance of counsel claim in the Amended Application, or why he did not attempt to add the claim before this action was stayed. Because Petitioner has offered no explanation for his delay in requesting leave to file a second amendment to the Application, the Court recommends that the Motion to Amend to add a new claim be denied as untimely. See Stafford, 34 F.3d at 1560; Woolsey, 934 F.2d at 1462. Petitioner's pro se status does not exempt him from complying with the Federal Rules of Civil Procedure. See Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).
The Court further notes that Respondents' additional argument that they would be prejudiced by the untimely amendment is not without merit. Because Petitioner has asserted that his procedural default of the new ineffective assistance of counsel claim should be excused under the rule of Martinez, the Court would be required to consider whether the claim is “substantial”- i.e., has “some merit.” Martinez, 566 U.S. at 14. A determination as to the potential merit of the new claim would, in turn, require Respondents to investigate the factual basis of the claim four and half years after this action was stayed, and to respond to the new claim more than and three and a half years after Respondents answered the merits of Petitioner's other claims.
B. Request to add new evidence in support of claim five
In claim five of the Amended Application, Petitioner asserts that pre-trial counsel, Cynthia Mares, a DPDO attorney, was laboring under an actual conflict of interest due to the DPDO's concurrent representation of alternate suspect Derrick Moore in an unrelated case. ECF 9 at 17. Petitioner alleges that at the time of the concurrent representation, the police were investigating Moore, who was then a juvenile, as a suspect for the murder for which Petitioner was charged; that the police attempted to question Moore about his involvement in the murder, but Moore invoked his right to counsel, the DPDO was appointed, and Moore thereafter declined to speak to the police; during the concurrent representation the police obtained shell casings from Moore that were related to Petitioner's criminal case; and, during the concurrent representation Petitioner asked Ms. Mares to interview and investigate Moore and to present Moore as an alternate suspect in defense of Petitioner's case. Id. Petitioner maintains that Ms. Mares was precluded by ethical rules from interviewing Moore or investigating the shell casings found on Moore (to determine if the shell casings were evidence in his case) because of the DPDO's concurrent representation. Id. Petitioner asserts that the concurrent representation hindered Ms. Mares' pre-trial investigation of his defense. Id.
Petitioner now seeks to add “new evidence to support the conflict of interest claim.” ECF 169 at 2. Petitioner states that the DPDO's concurrent representation of him and alternate suspect Moore precluded pre-trial counsel Mares from showing Moore's photo to “eyewitnesses” who had never seen Moore's photo array “and caused trial counsel to forego an alternate suspect defense against Mr. Mitchell at trial.” Id. Petitioner made similar, as well as additional, allegations in support of his conflict of interest claim in his Reply to the Respondents' Pre-Answer Response. ECF 23 at 4. Some of the allegations raised in the Reply (ECF 23) were acknowledged and addressed by Respondents in their Answer to claim five. ECF 47 at 52-55.
Because the specified “new” allegations in support of claim five are already before the Court for consideration, Petitioner's request to amend his claim with those allegations should be granted. However, to the extent Petitioner seeks to amend claim five to include allegations that have not heretofore been presented to the Court, Petitioner fails to identify what the new allegations are or how they support his conflict of interest claim. Therefore, the Court recommends that the request to add unspecified new allegations in support of claim five be denied.
II. Motion to Excuse Exhaustion
Petitioner asks the Court to excuse the statutory exhaustion requirement for claims one through four, lift the stay, and address the merits of all five of his claims because post-conviction appellate counsel has been ineffective in the pending state post-conviction appeal. ECF 159. Petitioner asserts that counsel has failed to communicate with him about the appeal and that the Colorado Court of Appeals denied his motion asking to remove counsel on June 20, 2021, which is hindering his ability to effectively present his claims on appeal. Id. at 1-2.
The Court recommends that the Motion to Excuse Exhaustion be denied as moot. Claims one through four were dismissed in the September 20, 2021 Order adopting the June 23, 2021 Recommendation. Petitioner did not file timely written objections to the June 23 Recommendation.
Petitioner also asks the Court to appoint counsel to represent him on the remaining conflict of interest claim. At this time, the Court will deny the request without prejudice. Counsel will be appointed for Petitioner if the Court determines that an evidentiary hearing is warranted. See Rule 8(c), Rules Governing Section 2254 Cases in the District Courts (providing that “[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.”).
CONCLUSION
The Court recommends that Petitioner's Letter asking the Court to excuse the statutory exhaustion requirement for claims one through four and lift the stay (“Motion to Excuse Exhaustion”) [filed July 13, 2021; ECF 159] be denied as moot.
The Court further recommends that Petitioner's Letter requesting leave to amend the Amended Application to assert a new claim for relief and to add allegations in support of claim five (“Motion to Amend”) [filed August 9, 2021; ECF 169] be granted in part and denied in part as follows:
(1) the request to amend the Amended Application to assert an entirely new ineffective assistance of counsel claim should be denied based on undue delay;
(2) the request to add specified allegations in support of claim five should be granted as the allegations were raised previously by Petitioner; and, (3) the request to add new unspecified allegations in support of claim five should be denied. Further, the Court orders that Petitioner's request for the appointment of counsel in ECF 159 is denied without prejudice.
Respectfully submitted this 22nd day of October, 2021, at Denver, Colorado.