Opinion
Case No. 2:03CV349
December 9, 2003
ORDER
Before the Court is Petitioner James Lee Nicholson's section 2254 Petition for Writ of Habeas Corpus. Petitioner alleges violations of his constitutional rights. Specifically, petitioner alleges that he was unduly coerced into pleading guilty and the state court which imposed his sentence violated his constitutional rights by imposing two consecutive sentences for two separate offenses stemming from one single criminal incident. The Court having considered the memoranda submitted by the parties and the relevant law issues the following Opinion and Order.
BACKGROUND
Petitioner armed with a firearm, accompanied with two other defendants with firearms, unlawfully entered the home of Elizabeth Chacon on October 29, 2002. Petitioner and the two defendants ordered Ms. Chacon to give them her money. Ms. Chacon gave the intruders the keys to her car and some money. Defendants believed there to be more money in the basement and required Ms. Chacon to accompany them to the basement. Defendants entered into a basement bedroom where Mario Wood was laying on the bed. Defendants ordered Mr. Wood to give them his money. A struggle ensued between Mr. Wood and petitioner. During the struggle one of the defendants pointed his gun at Mr. Wood and shot him. The bullet struck Mr. Wood and lodged in his spine.
The three defendants then exited the home and drove to a nearby 7-Eleven store where they met two women. Defendants gave the firearms and part of the money to the two women. Defendants then drove to their apartment where they changed their clothes. Shortly after arriving at the apartment the defendants were arrested.
Petitioner pled guilty on February 11, 2002 to one count of Burglary, a second degree felony and one count of Robbery, a second degree felony, For the guilty plea, the State agreed to move to dismiss the charges that remained with their accompanying enhancements. The remaining charges against petitioner were one count of Attempted Murder, one count of Obstruction of Justice, and one count of Purchase, Transfer, Possession or Use of a Firearm by a Restricted Person.
Petitioner was sentenced on April 1, 2003, to two consecutive indeterminate terms of not less than one year nor more than fifteen years in the Utah State Prison. Petitioner did not file a motion to withdraw his plea of guilty nor did he file an appeal of his conviction. Petitioner also failed to file any state post-conviction relief.
Petitioner filed a pro se Rule 22(e) Motion to Correct an Illegal Sentence in the trial court. The matter was heard on June 17, 2003, and the state court denied the Motion. The state court issued its written Order on July 28, 2003. On April 14, 2003 petitioner filed the current Petition for Writ of Habeas Corpus.
DISCUSSION STANDARD OF REVIEW
The Court may entertain a petition for writ of habeas corpus relief when the person seeking the relief is placed in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C.A. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 480 (1991). In conducting its review the Court is guided by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The standards created under AEDPA apply to the current Petition because it was filed after the effective date of the Act. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1518 (2000); Moore v. Gibson, 195 F.3d 1152 (10th Cir. 1999).A. EXHAUSTION
Section 2254 requires persons who wish to seek federal habeas relief, to first exhaust all state remedies. 28 U.S.C. § 2254(b) (c); see also Duncan v. Henry, 513 U.S. 364, 115 S.Ct. 887 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275 (1971); Miranda v. Cooper, 967 F.2d 392, 397 (10th Cir. 1992). Petitioner failed to file any appeal for post-conviction relief before the Utah Supreme Court. Because petitioner failed to exhaust state remedies his Petition maybe dismissed without prejudice. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205 (1982). If the Court dismisses this Petition without prejudice, petitioner will, most likely, be time-barred from filing a subsequent federal petition.
The AEDPA imposes a one-year statute of limitations for filing a writ of habeas corpus. This limitation begins running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Petitioner's sentence was imposed on April 1, 2002. From the date of his sentencing petitioner had thirty days (30) to appeal Petitioner did not appeal. Petitioner's time to file for federal relief began running on May 1, 2002. If petitioner's Petition were dismissed for failure to exhaust his state remedies he would be outside the time to file a subsequent petition.
B. PETITIONER'S CLAIMS ARE EXHAUSTED
The Supreme Court has ruled that a petitioner is deemed to have exhausted state remedies if either: (1) a state remedy is no longer available; or (2) all claims asserted by petitioner in the petition have been presented to the highest state court either on direct appeal or in a state post-conviction proceeding. Castille v. Peoples, 489 U.S. 346, 109 S.Ct 1054, 1059 (1989); Smith v. Atkins, 678 F.2d 883, 884-85 (10th Cir. 1982). Petitioner no longer has a state remedy available to him and has failed to present any of his claims to the highest state court, However, under Supreme Court precedent "[a] habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion [because] there are not state remedies any longer `available' to him." Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546 (1991).
C. PETITIONER'S CLAIMS ARE PROCEDURALLY DEFAULTED
Petitioner has satisfied the exhaustion doctrine because his claims are procedurally time barred under state law. However, the Tenth Circuit held in Thomas v. Gibson, 218 F.3d 1213, 1220-21 (10th Cir. 2000) (qouting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546 (1991)) that "[I]f a petitioner `failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred' the claims are considered exhausted and procedurally defaulted for purposes of habeas relief." The Court is bound to follow Tenth Circuit precedent, and therefore, finds that petitioner's Petition and associated claims are procedurally defaulted. The Court DENIES petitioner's Petition for Writ of Habeas Corpus Relief and DISMISSES the Petition with prejudice. IT IS SO ORDERED.