Opinion
Civil Action No. 06-cv-00517-BNB.
June 14, 2006
ORDER AND JUDGMENT OF DISMISSAL
Applicant Richard Robbins is a prisoner in the custody of the Colorado Department of Corrections at the Fremont Correctional Facility at Cañon City, Colorado. Mr. Robbins initiated this action by filing pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 28, 2006, Magistrate Judge Boyd N. Boland ordered Mr. Robbins to show cause why the habeas corpus application should not be denied. On May 15, 2006, Mr. Robbins timely filed his response to the show cause order.
The Court must construe the application and the response to the show cause order liberally because Mr. Robbins is representing himself. 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 the pro se litigant's advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will deny the application and dismiss the action.
Mr. Robbins is challenging the validity of his conviction in 1958 in the Denver District Court for first degree felony murder. The judgment of conviction was affirmed on direct appeal. See Robbins v. People, 350 P.2d 818 (Colo. 1960). Thirty-five years later, in April 1995, Mr. Robbins challenged his conviction in the Denver District Court by filing a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. The postconviction proceedings were pending in the state courts for ten years until the Colorado Supreme Court ultimately affirmed the trial court's denial of the Rule 35(c) motion as barred by the doctrine of laches. See Robbins v. People, 107 P.3d 384 (Colo. 2005).
In the instant habeas corpus action Mr. Robbins raises two claims that counsel was ineffective at his trial in 1958. Mr. Robbins specifically claims that counsel failed to investigate and present affirmative defenses regarding Mr. Robbins' impaired mental ability and failed to allow Mr. Robbins to testify at trial. Although Mr. Robbins asserts a third claim in the application, he does not challenge the validity of his conviction in the third claim. Instead, he argues in his third claim for relief that the Colorado Supreme Court erred in affirming the dismissal of his Rule 35(c) motion as barred by laches.
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. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is satisfied once the federal claims have been presented fairly to the state courts. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the federal issues 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. "The 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 that he has exhausted all available state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
Magistrate Judge Boland determined that Mr. Robbins failed to exhaust state court remedies for his ineffective assistance of counsel claims because those claims, which were barred from review by laches, were not fairly presented to the state's highest court. Mr. Robbins argues in his response to the show cause order that he fairly presented his claims to the state courts, including the Colorado Supreme Court, in the state court postconviction proceedings because the state courts erred in determining that his Rule 35(c) motion was barred by laches. The Court disagrees. None of the state courts, including the Colorado Supreme Court, addressed the merits of Mr. Robbins' ineffective assistance of counsel claims because the Rule 35(c) motion was barred by laches. Although this Court has jurisdiction to review state court decisions addressing the merits of a habeas applicant's federal constitutional claims, this Court may not review the Colorado Supreme Court's determination that Mr. Robbins' Rule 35(c) motion was barred by laches. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). Therefore, the Court finds that Mr. Robbins failed to exhaust state court remedies for his ineffective assistance of counsel claims because those claims were not fairly presented to the state courts.
Although Mr. Robbins failed to exhaust state court remedies for his ineffective assistance of counsel claims, the application may not be denied for failure to exhaust state court remedies because it is clear that Mr. Robbins no longer has an adequate and effective remedy available in state court. See Castille, 489 U.S. at 351. However, the Court still must determine whether Mr. Robbins is barred from raising his claims in this Court based on his procedural default in state court. As a general rule, 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). Application of this procedural default rule in the habeas corpus context is based on comity and federalism concerns. See Coleman v. Thompson, 501 U.S. 722, 730 (1991).
Mr. Robbins first argues in his response to the show cause order that the Court may not raise the procedural default defense sua sponte. Mr. Robbins is mistaken. See Hardiman v. Reynolds, 971 F.2d 500 (10th Cir. 1992). "[T]he defense of state procedural default may be raised sua sponte so long as the court provides the petitioner an opportunity to respond to the defense." Id. at 501. In the instant action, Mr. Robbins was ordered to show cause why the habeas corpus application should not be denied and he specifically was directed to show cause and prejudice or a fundamental miscarriage of justice if his claims were procedurally barred. Therefore, the Court will consider the procedural default defense because Mr. Robbins has been given an opportunity to respond to that defense.
Mr. Robbins also argues in his response to the show cause order that the ineffective assistance of counsel claims are not procedurally barred because laches is not an independent and adequate state procedural ground. "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). "For the state ground to be adequate, it must be strictly or regularly followed and applied evenhandedly to all similar claims." Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (internal quotation marks omitted).
The Colorado Supreme Court's reliance on laches to deny Mr. Robbins' Rule 35(c) motion was based on state law rather than federal law and, therefore, satisfies the independence prong of the test. The Court also finds that laches is an adequate state procedural ground. As the Colorado Supreme Court noted in its order affirming the denial of Mr. Robbins' Rule 35(c) motion, that court has applied the doctrine of laches as a time bar against other defendants who delayed in asserting their claims. See Robbins, 107 P.3d at 388-89 (collecting cases). The fact that laches has not been cited in many cases since the enactment of a state statute of limitations for postconviction motions does not mean that laches is not an adequate state procedural ground.
Therefore, the Court finds that the ineffective assistance of counsel claims are subject to the procedural default defense. As noted above, the Court may review the defaulted claims only if Mr. Robbins "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
To demonstrate cause for his procedural default, Mr. Robbins 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).
Mr. Robbins argues throughout his response to the show cause order that the cause for his default is the erroneous determination by the Colorado Supreme Court that his claims are barred by laches. In other words, he is asking the Court to review the state court's ruling. As noted above, this Court may not review the Colorado Supreme Court's determination that the Rule 35(c) motion was barred by laches. Therefore, the Court finds that Mr. Robbins has failed to demonstrate cause for his procedural default. The Court need not decide whether Mr. Robbins has shown prejudice because he has failed to demonstrate cause.
Mr. Robbins finally argues that a failure to consider his claims will result in a fundamental miscarriage of justice. 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. A "substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare." Schlup v. Delo, 513 U.S. 298, 324 (1995). To demonstrate a fundamental miscarriage of justice Mr. Robbins first must "support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Id. Mr. Robbins then must demonstrate "that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 327.
Although Mr. Robbins argues that a failure to consider his claims will result in a fundamental miscarriage of justice, he fails to present any new reliable evidence that was not presented at trial. Therefore, he has not demonstrated that a failure to consider his claims will result in a fundamental miscarriage of justice. The habeas corpus application will be denied because of Mr. Robbins' procedural default in state court. Accordingly, it is
ORDERED that the habeas corpus application is denied and the action is dismissed. It is
FURTHER ORDERED that judgment is entered in favor of Respondents and against Applicant.