Free Response to Habeas Petition - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02321-EWN-MJW RAYMOND ARTHUR PRICE, Applicant, v. SUPT. REID, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. ANSWER

Respondents, by the Attorney General of the State of Colorado, on whom has been served an Order to Answer, respond as follows: GENERAL DENIAL Respondents deny the allegations of the petition except as specifically admitted herein. JURISDICTION Applicant Price appears to satisfy the jurisdictional requirement that he be in custody. He is challenging a 9-year sentence for theft and lesser concurrent sentences in Fremont County case no. 90CR45, which were ordered to run

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consecutively to his life sentence in an unrelated case (Exhibit B, pp. 1-2, citing v. 13, pp. 42-43).1

ALLEGATIONS Price's allegations are as follows: 1. The Colorado court system violated Price's right to due process and equal protection because the courts would not grant Price an evidentiary hearing on his motion for a new trial. 2. The trial court abused its discretion by granting the prosecution's challenge for cause to prospective juror Hersch. 3. Counsel rendered ineffective assistance in Price's direct appeal.

PROCEDURAL HISTORY OF THE CASE On February 9, 1990, Price was charged with one count of theft between $300 and $10,000 (Exhibit B, p. 1, citing v. 1, p. 7). Subsequently, two additional counts of class 4 felony theft and three counts of criminal possession of a forged

Respondents do not have custody of the state court records and do not know if the records are presently numbered as they were in the direct appeal or postconviction proceedings.
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instrument were added (Exhibit B, p. 1, citing v. 1, pp. 16-17, 24-25). A trial began on April 2, 1991, and the jury convicted Price as charged on April 3, 1990 (Exhibit B, p. 1, citing v. 11, p. 4; v. 12, p. 401). On October 21, 1993, the trial court sentenced Price to nine years for all counts, to run consecutively to a life sentence that Price was serving in an unrelated case (Exhibit B, pp. 1-2, citing v. 13, pp. 42-43). Direct appeal. The conviction was affirmed on direct appeal. People v. Price, No. 91CA1972 (Colo. App. December 16, 1993) (not selected for publication) (Exhibit C). The Colorado Supreme Court denied certiorari review on May 9, 1994. (Exhibit D). State Crim. P. 35(c) postconviction proceedings. On July 20, 1996, Price filed a Crim. P. 35(c) motion for postconviction relief (Exhibit E). On October 2, 1996, the public defender was appointed to represent Price (Exhibit E). However, on October 8, 1996, Price filed a motion to remove the public defender for a conflict of interest (Exhibit E). On November 14, 1997, alternate defense counsel was appointed (Exhibit E). In the meantime, Price continued to file various pro-se pleadings (Exhibit E).

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On January 21, 2000, Price filed a motion to remove his attorney and investigator (Exhibit E). On February 1, 2000, a different attorney (Patricia Perello) was appointed (Exhibit E). On November 7, 2001, Price filed a motion to remove Ms. Perello, and to proceed pro-se (Exhibit E). On March18, 2002, Price filed a Motion to Update/Amend his Crim. P. 35(c) motion in order to consolidate the various motions he had filed (Exhibit E). Then, on February 18, 2003, Price again requested the appointment of counsel and a competency hearing (Exhibit E). The trial court denied the motion for psychiatric assessment on April 21, 2003, and denied Price's "pending 35(c) motion" as untimely and lacking merit (Exhibit E). Price attempted to appeal the trial court's order. People v. Price, No. 03CA1007. On June 23, 2003, the Colorado Court of Appeals ordered Price to provide the court with a copy of the judgment being appealed (Exhibit F). Price responded with a threatening and obscene pleading (Exhibit G). The Court of Appeals dismissed the appeal on July 14, 2003 (Exhibit H). Federal habeas corpus application. Price initially filed a federal habeas corpus application on November 20, 2003 (Doc. 3). On February 27, 2004, United States Magistrate Judge O. Edward
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Schlatter ordered Price to file an amended application, noting the nonsensical dates for the judgments of conviction and the unclear allegations concerning how exhaustion had been accomplished (Doc. 9). The magistrate judge concluded that the initial application failed to comply with Rule 8 of the Federal Rules of Civil Procedure (Doc. 9, p. 3). Price filed two handwritten amended applications, which appear to be substantially identical, on March 15, 2004 (Docs. 10 and 11). However, on April 23, 2004, the District Court ordered that the amended applications be dismissed without prejudice because Price had failed to comply with the February 27, 2004, order (Doc. 13). On appeal, the Tenth Circuit Court of Appeals ruled that dismissal on the pleadings was inappropriate and remanded for further proceedings. Price v. Reid, No. 04-1190 (10th Cir. January 6, 2006) (unpublished). Respondents have been ordered to file an answer on or before May 24, 2006.

STATEMENT OF THE FACTS Price was involved in an automobile accident on January 16, 1988 (Exhibit B, p. 2, citing v. 11, p. 203). He was a passenger in a car that was owned and insured by Russell Estridge (Exhibit B, p. 2, citing v. 11, p. 203). As a result of the
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accident, State Farm Insurance (Mr. Estridge's insurer) paid for Price's medical expenses incurred during this accident (Exhibit B, p. 2, citing v. 11, p. 204). Three different medical providers billed State Farm for medical services provided to Price; St. Joseph Hospital, Magnetic Resonance Imaging of Colorado ("MRI"), and Dr. William Ottersberg (Exhibit B, p. 2, citing v. 11, pp. 204, 222). Upon receipt of the bills, State Farm issued three checks payable jointly to Price and the medical provider (Exhibit B, p. 2, citing v. 11, p. 205). Price signed three assignment of benefit documents authorizing State Farm to pay the benefits directly to the three respective medical providers (Exhibit B, p. 2, citing v. 11, pp. 210-211, 223; v. 12, p. 284). Rosemary Scherf, collection manager for MRI, testified that Price had several tests performed on him that totaled $855 in costs (Exhibit B, p. 3, citing v. 11, p. 222). Price signed a form authorizing the payment, but MRI never received it (Exhibit B, p. 3, citing v. 11, p. 223). The check from State Farm to Price and MRI was deposited into Price's account. It appeared to have been endorsed by Price, MRI, and a Bruce Peters (Exhibit B, p. 3, citing v. 11, p. 224). Ms. Scherf testified that checks endorsed by MRI were always endorsed by stamp with MRI's tax ID number and other information (Exhibit B, p. 3, citing v. 11, pp. 224-225). Ms. Scherf testified unequivocally that the endorsement of MRI
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on the check to Price from State Farm was not an authorized endorsement from MRI (Exhibit B, p. 3, citing v. 11, p. 224). She also testified that while Bruce Peters is a doctor associated with MRI, he would not normally endorse a check of this nature for MRI, and that he did not in this case (Exhibit B, p. 3, citing v. 11, pp. 230-231). Scot Paulsen, employee of St. Joseph's Hospital in collections, testified that the medical services Price received there amounted to $2,183.96 (Exhibit B, p. 3, citing v. 11, pp. 240-241). Paulsen contacted Price when she learned that the account was delinquent, and that a check from State Farm had been deposited, but that the hospital had not received payment (Exhibit B, p. 3, citing v. 11, pp. 243244). The check from State Farm was endorsed by Price, and a signature "Clyde Belman, Account Rep." appeared on the back of the check (Exhibit B, p. 3, citing v. 11, p. 244). Price state over the telephone to Ms. Paulsen that his friend, Mr. Boone, had the check endorsed at the hospital for him, and that he did not personally know who Clyde Belman was (Exhibit B, p. 4, citing v. 11, p. 244). An account administrator testified that the endorsement on the back of the check was unauthorized and that there was no one by the name "Clyde Belman" employed at the hospital (Exhibit B, p. 4, citing v. 11, p. 256). Price stated that he would bring

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Mr. Boone in to straighten out the billing, but he never appeared at the hospital (Exhibit B, p. 4, citing v. 11, p. 245). Dr. Ottersberg testified that Price owed him $548 for medical services (Exhibit B, p. 4, citing v. 12, p. 283). Dr. Ottersberg informed State Farm that he had not received payment, and State Farm informed him that they had issued a check that had been endorsed and cashed (Exhibit B, p. 4, citing v. 12, p. 286). When Dr. Ottersberg received a copy of the cashed check, he saw it had been endorsed by Price, and that Dr. Ottersberg's name appeared on the check but it was not his signature (Exhibit B, p. 4, citing v. 12, p. 285). A bank teller at Fremont National Bank, Cheryl Barr, testified that she had waited on Price when he deposited the check made out to himself and St. Joseph's (Exhibit B, p. 4, citing v. 12, p. 292). On June 22, 1989, the deposit slip showed that Price deposited $2,183.96. Two additional deposit slips demonstrated deposits by Price for $548 and $855 (Exhibit B, p. 4, citing v. 12, pp. 297, 298). A bank official testified that Price's signature on those two checks matched Price's signature card on file with the bank (Exhibit B, pp. 4-5, citing v. 12, pp. 311-312).

TIMELINESS OF THIS PETITION UNDER 28 U.S.C. § 2244. It appears that Price's federal habeas corpus application is timely.
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Under 28 U.S.C. § 2244(d)(1), a 1-year limitations period applies to applications for writ of habeas corpus. The limitations period begins to run on the date the conviction became final by the conclusion of direct review, and allows for tolling during the pendency of a state postconviction proceeding. "Direct review" has been construed to include the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. See Locke v. Saffle, 237 F.3d 1269, 1272 (10th Cir. 2001) (a petitioner's conviction is not final and the one-year limitation period for filing a federal habeas petition does not begin to run until -- following a decision by the state court of last resort -- "after the United States Supreme Court has denied review, or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court has passed"). Here, Price's direct appeal became final in 1994, prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Thus, the one-year statute of limitations did not begin to run until April 24, 1996. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). It appears that tolling commenced during the 1996 ­1997 grace period on July 20, 1996, and did not cease until Price's postconviction appeal was dismissed
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on July 14, 2003.2 This federal habeas corpus application was filed on November 20, 2003, approximately four months later. Thus, the application has been filed within the 28 U.S.C. § 2244 limitations period.

STATE COURT RECORDS Records from Price's state court proceedings are presently located in the custody of the District Court Clerk for Fremont County, and may be obtained upon order to the clerk of the court. Exhibits are attached as follows: Exhibit A: Amended Opening Brief in People v. Price, No. 91CA1972. Exhibit B: Answer Brief in People v. Price, No. 91CA1972. Exhibit C: Opinion in People v. Price, No. 91CA1972. Exhibit D: Order Denying Petition for Writ of Certiorari in Price v. People, No. 94SC121. Exhibit E: Computerized docket entries from People v. Price, Fremont County case no. 90CR45. Exhibit F: Order of the Colorado Court of Appeals dated June 23, 2003 in People v. Price, No. 03CA1007.

Approximately one additional month was tolled from the beginning of the limitations period to May 20, 1996 when Price's appeal from a Crim. P. 35(b) motion for sentence reconsideration concluded.
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Exhibit G: Response filed on July 7, 2003 in People v. Price, No. 03CA1007. Exhibit H: Order dismissing the appeal in People v. Price, No. 03CA1007.

EXHAUSTION OF STATE COURT REMEDIES A. General legal standards. Federal habeas corpus relief may not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the state. 28 U.S.C. § 2254(b); Gray v. Netherland, 518 U.S. 152, 116 S. Ct. 2074 (1996). A federal claim generally will not be deemed exhausted unless the "substance" of the claim has been "fairly presented" to the state courts. Picard v. Conner, 404 U.S. 270, 92 S. Ct. 509 (1971). Claims must be presented as constitutional issues in the state court proceedings in order to be exhausted. Duncan v. Henry, 513 U.S. 364, 115 S. Ct. 887 (1995) (presenting claim to state courts that is merely similar to federal habeas claim is insufficient); Moffat v. Gilmore, 113 F.3d 698, 703 (7th Cir. 1997) (in order to be exhausted, there must be "significant mention" of a federal constitutional issue in the state courts). Moreover, it is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the

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"substance" of such a claim to a state court. Gray v. Netherland, supra, 518 U.S. at 163, 116 S. Ct. at 2081. Additionally, in order to exhaust state remedies, a defendant must present the same facts and legal theory that support his federal court claims in the state courts. See Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997) (finding claims unexhausted when petitioner made general allegations of ineffective assistance of counsel in state court and more specific allegations in federal court on habeas). Finally, for a claim to be exhausted, it must be "fairly presented" to the state courts "by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-845, 119 S. Ct. 1728, 1732 (1999). This includes a petition for discretionary review in the highest state appellate court. Id. 526 U.S. at 847-848, 119 S. Ct. at 1733-1734.

B. Whether Price's claims have been exhausted in the state courts. It appears that Price has failed to exhaust state remedies, and as discussed below, has procedurally defaulted his unexhausted claims. Direct appeal. In his Opening Brief in the Colorado Court of Appeals, Price raised his claim (2), but did not present it as an issue of federal law. He did not cite any
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provisions of the federal constitution concerning the erroneous "granting" of a challenge for cause (Exhibit A, pp. 6-10).3 In order to accomplish exhaustion of state remedies, the petitioner must alert the state courts that he is relying on a provision of the federal constitution for relief. Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004), citing Duncan v. Henry, supra. Crim. P. 35(c) motion. Price asserts that he raised his claims (1) and (3) in his Crim. P. 35(c) proceedings (federal habeas corpus application at pp. 5-6). Assuming arguendo that he raised these claims in the state postconviction proceedings, because Price caused his appeal to be dismissed by responding to the court's show cause order with a threatening and obscene pleading rather than by providing the requested order, the claims ultimately were not exhausted. See Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982) ("If a petitioner wishes to exhaust his claims he is expected not only to use the normal avenues of relief but also to present his claims before the courts in a procedurally proper manner according to the rules of the state courts.").

Price's references to federal law were in support of his general discussion that defendants are entitled to a fair and impartial jury (Exhibit A, p. 7).
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C. Availability of a state remedy. In deciding whether a failure to exhaust state remedies requires dismissal of a petition for writ of habeas corpus, this Court must determine whether a meaningful and presently available state remedy exists in order for Price to exhaust his claims. Cruz v. Warden of Dwight Correctional Center, 907 F.2d 665, 669 (7th Cir. 1990). If an attempt to exhaust state remedies would be futile, the exhaustion requirement is deemed satisfied. Duckworth v. Serrano, 454 U.S. 1, 102 S. Ct. 18 (1981). However, if a petitioner is foreclosed from raising a claim in a state collateral proceeding because he neglected to raise it earlier, he has procedurally defaulted the claim, absent a showing of cause and prejudice. Klein v. Neal, 45 F.3d 1395 (10th Cir. 1995) (holding that Colorado courts' application of § 16-5402, C.R.S. (2005) was independent and adequate state ground); Steele v. Young, 11 F.3d 1518 (10th Cir. 1993) (double jeopardy claim is procedurally barred where failure to raise issue on direct appeal results in summary dismissal of later postconviction relief motion); Aldridge v. Dugger, 925 F.2d 1320, 1326 (11th Cir. 1991) (a state's successive petition rule is adequate to create a procedural bar in a federal habeas corpus proceeding). Here, Price would not be able to present his unexhausted claims in the state courts because (1) the three-year period under § 16-5-402, C.R.S. (2005) for filing
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a Crim. P. 35(c) motion expired on December 16, 1996, and (2) because Price has already had the benefit of a postconviction proceeding. A second Crim. P. 35(c) motion would be barred as untimely and successive. Crim. P. 35(c) (3) (VI), (VII). Since the unexhausted claims would now be barred under Colorado procedure and would be considered procedurally defaulted, this Court should refuse to address them on the merits and find that they have been forfeited.

RESPONSE TO PRICE'S ALLEGATIONS Although Respondents contend that Price's claims have been procedurally defaulted and should not be reviewed, Respondents will briefly address the merits of the claims in order to demonstrate that they additionally should be denied as lacking merit. Standard of review. Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas corpus relief should not be granted with respect to a claim adjudicated on the merits in the state court proceedings unless the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable
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determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). A state court decision is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently on a set of materially indistinguishable facts. Penry v. Johnson, 532 U.S. 782, 792-793, 121 S. Ct. 1910, 1918 (2001). To be based on an unreasonable application of clearly established Federal law, a state court decision must be objectively unreasonable-not merely erroneous, incorrect, or contrary to what a federal court might decide on direct appeal. See Bell v. Cone, 535 U.S. 685, 122 S. Ct. 1843 (2002); Williams v. Taylor, 529 U.S. 362, 410-11, 120 S. Ct. 1495, 1522 (2000). I. The Colorado court system did not violate Price's right to due process and equal protection by refusing to grant an evidentiary hearing on his motion for a new trial.

Price contends that the Colorado court system violated his right to due process and equal protection because the courts would not grant Price an evidentiary hearing on his motion for a new trial. He alleges that he would have presented evidence from "Dan Boone" who would have testified that he took the checks to the medical providers for the co-signature (federal habeas corpus application at p. 5).
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First, "no constitutional provision requires a state to grant post-conviction review." Sellars v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998), citing Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S. Ct. 1990, 1994 (1987). Under Colorado law, a defendant seeking a new trial based on newly discovered evidence must show that the evidence was discovered after the trial; that he and his counsel exercised diligence to discover all possible evidence favorable to the defendant prior to and during the trial; that the newly discovered evidence is material to the issues involved, and not merely cumulative or impeaching; and that on retrial the newly discovered evidence must be of such a character as to probably bring about an acquittal verdict if presented at another trial. People v. Schneider, 25 P.3d 755, 761 (Colo. 2001). These standards comport with federal law. See United States v. LaVallee, 439 F.3d 670, 700 (10th Cir. 2006). Here, Mr. Boone's alleged participation was clearly known to the defendant at the time of trial, since he had informed hospital personnel that Mr. Boone was the person who brought the checks to be endorsed. Thus, testimony from Mr. Boone would not have properly been presented in a motion for a new trial. The state courts did not deny Price's constitutional rights by failing to grant a post-trial hearing to produce evidence that was known at the time of trial.

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II.

Price's right to a fair and impartial jury was not violated by the trial court's granting the prosecution's challenge for cause as to prospective juror Hersch.

Price asserts that the trial court "abused its discretion" by granting the prosecution's challenge for cause to prospective juror Hersch when Hersch had not "evidenced a clear bias or enmity towards the prosecution" (application for federal habeas corpus at p. 6). This claim, however, does not state a violation of federal constitutional law. Juror Hersch stated that he had been prosecuted twice by the same district attorney's office and that this experience might cause him to be unfair to the prosecution (Exhibit C, p. 1). The trial court granted the prosecution's challenge for cause over Price's objection. The Colorado Court of Appeals ruled that the trial court had not abused its discretion (Exhibit C, p. 2). "A trial court's conclusion that a potential juror would be biased is a factual determination, and it is therefore entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1)." Martini v. Hendricks, 348 F.3d 360, 363 (3rd Cir. 2003); Tinsley v. Borg, 895 F.2d 520, 525 (9th Cir. 1990) (findings of state trial and appellate courts on juror impartiality deserve "a high measure of deference"). Moreover, Price has not alleged or established that any biased or impartial juror sat during his trial. He must establish this to show a violation of federal
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constitutional law. United States v. Brooks, 175 F.3d 605, 606 (8th Cir. 1999) (Even if the district court abused its discretion in striking for cause prospective jurors who favored the decriminalization of marijuana, defendants would not be entitled to a reversal of their convictions because they failed to show the jurors who tried their case were biased against them); United States v. Towne, 870 F.2d 880, 885 (2d Cir. 1989) ("Since appellant has in no way established the partiality of the jury that ultimately convicted him, he may not successfully claim deprivation of his sixth amendment or due process rights."); see also United States v. Martinez-Salazar, 528 U.S. 304, 307, 120 S. Ct. 774, 777 (2000) (if the defendant elects to cure a trial court's erroneous refusal to strike a juror for cause by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right). Therefore, no federal habeas corpus relief is required. III. Price's counsel did not render ineffective assistance in his direct appeal.

Price urges that his attorney on direct appeal rendered ineffective assistance of counsel by failing to raise his claim that he should have received an evidentiary hearing on his motion for a new trial. As discussed in Argument I, above, such a claim would have lacked merit because Price knew of the alleged involvement of
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Mr. Boone prior to trial, and thus, there was no proper basis for a motion for new trial. In order to establish ineffective assistance of counsel, a petitioner must meet the test announced in by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687-691, 104 S.Ct. 2052, 2064-2066 (1984). Strickland requires habeas petitioners to show constitutionally deficient performance by demonstrating that counsel's conduct was objectively unreasonable and resulted in prejudice by demonstrating a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." For a petitioner to prove constitutionally deficient performance of appellate counsel, a petitioner must show either that the issue that was not appealed is "so plainly meritorious that it would have been unreasonable to winnow it from even a strong appeal" or that, when considered in the context of the rest of the appeal and with deference given to the professional judgment of the attorney, it was unreasonable not to appeal that issue. Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). "[I]f the issue is meritless, its omission will not constitute deficient performance." Id.

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Because the issue that Price's direct appeal counsel failed to raise clearly lacked merit, no ineffective assistance of counsel has been shown. CONCLUSION WHEREFORE, for the preceding reasons and authorities, Respondents respectfully request that this petition for federal habeas corpus relief be denied. JOHN W. SUTHERS Attorney General s/ Laurie A. Booras LAURIE A. BOORAS, 19648* First Assistant Attorney General Appellate Division Criminal Justice Section Attorneys for Respondents 1525 Sherman Street, 5th Floor Denver, Colorado 80203 D.C. Box No. 20 Telephone: (303) 866-5785 FAX: (303) 866-3955

AG ALPHA: AG File:

DAXX QBUG P:\AP\APBOORLA\price.hab.doc
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CERTIFICATE OF SERVICE I hereby certify that on this 24th day of May, 2006, I electronically filed the above ANSWER with the Clerk of Court using the CM/ECF system, and I hereby certify that I have mailed the Answer and the state court documents, exhibits to Respondent's Answer, by placing the same in the United States mail, first-class postage prepaid, at Denver, Colorado, this 24th__ day of Raymond A. Price No. 66072 San Carlos Correctional Facility 1410 W. 13th Street P.O. Box 3 Pueblo, CO 81002 Raymond A. Price No. 66072 Centennial Correctional Facility P.O. Box 600 Canon City, CO 81003 May __ 2006 addressed as follows:

s/ Laurie A. Booras ______________________

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