Hyberg v. MilyardHyberg v. Milyard
John D. Seidel, Office of the Attorney General for the State of Colorado, Denver, CO, for Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
CARLOS F. LUCERO, Circuit Judge.
Darrel Hyberg, a Colorado prisoner proceeding pro se,1 seeks a Certificate of Appealability (“COA“) to appeal the district court‘s dismissal of his
Hyberg was convicted of murder after deliberation and related charges in El Pаso County District Court and sentenced to life in prison without the possibility of parole. Hyberg, represented by counsel, appealed. During the appeal, his attorney sent him a letter in which she stated that she heard from the stаff at Hyberg‘s prison that he had “been looking up [her] other clients ... in an effort to have them join [him] in a complaint against [her].” Hyberg‘s conviction was affirmed by the Colorado Court of Appeals.
Shortly after he lost his appеal, Hyberg received a letter from his attorney in which she stated unequivocally that she would file a petition for certiorari with the Colorado Supreme Court “within the 45 days allowed from the date of the [appellate] оpinion.” She did not do so. After the deadline for seeking certiorari had passed and Hyberg inquired regarding the status of his petition, his attorney sent him a letter saying she would not file for certiorari because his claims lacked merit.
Prоceeding pro se, Hyberg filed a “Petition for a Writ of Habeas Corpus” with the Logan County District Court, arguing that his attorney was ineffective for failing to file his certiorari petition. The court construed the petition as a Colorado Rule of Appellate Procedure 35(c) motion for post-conviction review and transferred the motion to El Paso County District Court. Due to an administrative error, that court placed Hyberg‘s motion on the civil docket and denied as moot Hyberg‘s “Motion to Stay Proceeding 35(c).” After several filings by Hyberg, in which he sought to determine the status of his petition and amend it, the El Paso County Court finally addressed the merits of his ineffectiveness claim and rejected it. His appeal, which raised an additional ineffectiveness claim stemming from appellate counsel‘s alleged conflict of interest based on the letter in which she admonished him for considering a complaint against her, was rejected on the merits. Hyberg petitioned the Colorado Supreme Court for certiorari, which was denied.
Hyberg then filed an application for a writ of habeas corpus pursuant to
On appeal, Hyberg makes four arguments. He contends that the district court erred by: (1) rejecting his claim that his appellate counsel was ineffective for failing to file a certiorari petition to the Colorado Supreme Court; (2) rejecting his claim that his appellate counsel had a conflict of interest; (3) determining that Hyberg did not show cause and prejudice for his failure to exhaust several claims in state court; аnd (4) failing to conduct an evidentiary hearing on his claims.
II
In order to appeal the denial of his
A habeas petitioner has the additional burden of showing that the state court adjudication of his claim was either “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” or based on an “unreasonable determination of the facts in light of the evidence prеsented.”
III
The district court was correct to reject Hyberg‘s first two arguments on the merits. Both concern ineffectiveness of appellate counsel, which is governed by Strickland v. Washington, 466 U.S. 668 (1984). A petitioner must show that (1) “counsel‘s performancе was deficient” and (2) “the deficient performance prejudiced the defense.” Id. at 687.
Hyberg‘s attorney failed to follow through on her promise to file a petition for certiorari on his behalf. But the Sixth and Fourteenth Amendments extend the right to counsel only during trial and the first appeal of right. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Review by the Colorado Supreme Court on a certiorari petition is discretionary.
Hyberg argues that these cases are inapplicable because they were decided before the Anti-Terrorism and Effective Death Penalty Act (“AEDPA“), which places a demanding burden on petitiоners—even those proceeding pro se—to exhaust all issues during the state appeals process by raising them in a petition for certiorari to the state‘s highest court. Gonzales v. McKune, 279 F.3d 922, 924 (10th Cir. 2002). Because exhaustion on direct appeal is so critical to future federal habeas review, Hyberg contends, we should expand the scope of the right to counsel to include certiorari petitions to state supreme courts. We are certainly trоubled that AEDPA has exacerbated the impact of having poor representation at the certiorari stage—Hyberg‘s attorney‘s inaction foreclosed not only any relief from the Colorado Supreme Court, but also any habeas remedy in federal court. However, our authority to grant habeas relief is circumscribed by the requirement that a petitioner show a violation of “clearly established federal law, as determined by the Supreme Court.”
Hyberg‘s second contention, that his appellate counsel had a conflict of interest, also fails. Hyberg‘s counsel‘s admonition that it was in his best interest to cooperate with her, rather than filing a complaint against her, is not sufficient to show a conflict of interest. Although the Colorado Court of Appeals reached this conclusion in a summary fashion, we will uphold such a decision so long as it does
IV
Hyberg‘s next argument concerns the district court‘s dismissal of his unexhausted claims. Federal courts must dismiss a habeas claim that was not exhausted in state courts.
Of Hyberg‘s four claims dismissed based on failure to exhaust, three were not raised at any point prior to the federal proceedings and one was raised only in his appeal of the denial of his Rule 35(c) motion. Hyberg does not argue that he exhausted any of these claims, but argues that he has established “cause and prejudice” for his failure to exhaust. Specifically, he contends that the Colorado courts issued many “contradictory, confusing orders.” The El Paso County Court misfiled Hyberg‘s Rule 35(c) motion and issued an erroneous order holding that Hyberg‘s motion to “stay” the рroceedings was moot. But in spite of the confusing actions of the Colorado courts, Hyberg submitted several filings forcefully arguing the claims discussed above. The misfiling of his petition did not prevent him from diligently arguing his other claims as well. And his failurе to raise all potential claims in his initial or amended Rule 35(c) motion now prevents him from doing so in the Colorado courts.
Hyberg also argues that the Cоlorado rules confused him by treating his self-styled habeas petition as a Rule 35(c) motion. But pro se petitioners are imputed with knowledge of legal procedural rules. Rodriguez v. Maynard, 948 F.2d 684, 687 (10th Cir. 1991). And Colorado law requires ineffectiveness claims tо be treated as Rule 35(c) motions. Horton v. Suthers, 43 P.3d 611, 615-16 (Colo. 2002). This rule in no way prevented Hyberg from fully stating all of his claims in his initial post-conviction motion—regardless of whether it was subsequently treated as petition for habeas corpus or a Rule 35(c) motion.
Hyberg‘s claims are inexcusably unexhausted and, at this point, are procedurally defaulted under Colorado law. They were properly dismissed by the district court and no reasonable jurist could contend otherwise.
V
Finally, Hyberg аrgues that he was entitled to an evidentiary hearing in the
VI
We DENY a COA and DISMISS the appeal. We GRANT Hyberg‘s motion to proceed in forma pauperis.