Prendergast v. ClementsPrendergast v. Clements
TYMKOVICH, Circuit Judge.
Brian Victor Prendergast, a Colorado state prisoner proceeding pro se, requests a certificate of appealability to appeal the district court‘s denial of his application for a writ of habeas corpus pursuant to
I. Background
Prendergast was convicted by jury trial in Arapahoe County District Court on twelve counts of securities fraud and one count of theft over $15,000. He appealed his conviction and was sentenced to cоncurrent terms of ten years of probation on each count. On October 9, 2003, the Colorado Court of Appeals affirmed his conviction on direct appeal. See People v. Prendergast, 87 P.3d 175 (Colo.Ct.App.2003). On April 12, 2004, the Colorado Supreme Court denied certiorari review.
After his conviction, Prendergast violated the terms of his probation on a number of occasions and was accordingly resentenced. Then, on August 28, 2009, after having revoked his probation, a state trial court resentenced him to concurrent terms of six years in the Colorado Department of Corrections. On March 24, 2011, the Colorado Court of Appеals affirmed this resentencing. Prendergast did not seek further review of the resentencing ruling at the Colorado Supreme Court. Instead, on December 13, 2011, Prendergast filed in federal district court the application for federal habeas relief that we review here.
We now review these two bases for dismissal and find no reason to disturb these rulings from the district court.
II. Analysis
A. Exhaustion of State Court Remedies
At the district court, Prendergast presented two claims related to his 2009 resentencing and based on alleged violations of due process and the Double Jeopardy Clause. The district court, in dismissing the due process claim, held that when Prendergast raised it at the Colorado Court of Appeals, he did not present the claim as having a federal constitutional dimension.
As to the double-jeopardy claim, the district court concluded Prendergast had not exhausted state court remedies on the claim because it was not raised on direct appeal. In this appeal, Prendergast disputes the district court‘s analysis on both claims.2
For a federal court to consider a federal constitutional claim in an applicatiоn for habeas, the claim must be “fairly presented to the state courts” in order to give state courts the “opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (internal quotations omitted). Indeed, “[i]f state courts are to be given the opportunity to сorrect alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.” Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam). A petitioner need not invoke “talismanic language” or cite “book and verse on the federal constitution.” Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir.1989) (internal quotations omitted); see also Connor, 404 U.S. at 278, 92 S.Ct. 509. Rаther, the crucial inquiry is whether the “substance” of the petitioner‘s claim has been presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim. Connor, 404 U.S. at 278, 92 S.Ct. 509; Nichols, 867 F.2d at 1252.
Prendergast did not satisfy this standard with regard to either of his attacks on resentencing. At the Cоlorado Court of Appeals, Prendergast only argued that the trial court abused its discretion in considering certain evidence at his resentencing hearing. We see nothing in Pren
Prendergast suggests two reasons why he should be exempted from this exhaustion requirement, neither of which we find persuasive. First, Prendergast suggests he no longer has “an adequate and effective” state-court remedy as the time to raise these claims on direct review has expired. Because he is barred from bringing these claims on direct review, he argues he should be “excused” from the exhaustion requirements. Yet well-established precedent on habeas forecloses our excusing Prendergast‘s failure to raise this claim in state court, regardless of whether he is now procedurally barred in that court from raising the claim. See, e.g., O‘Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (noting that “letting the time run” on state remedies as a means of fulfilling the exhaustion requirement would “undercut the values that [the requirement] serves“) (quoting id. at 853, 119 S.Ct. 1728 (Stevens, J. dissenting)).
Second, Prendergast argues for an exemption from the exhaustion rule because his failure to exhaust derives from the ineffective assistance of his legal counsel. On this claim, we agree with the district court that Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000), requires Prеndergast to have first raised this claim in a state-court post-conviction proceeding. Because Prendergast has not taken this step, we cannot find cause for the procedural default of his two unexhausted claims.
We therefore decline to disturb the district court‘s ruling on these two claims.
B. Untimeliness
At the district court, Prendergast presented three claims challenging the constitutionality of his 2003 conviction. Applying the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the district court concluded all three of these claims were time barred. Prendergast disputes the district court‘s application оf AEDPA‘s statute of limitations provision to these claims.
AEDPA sets a one-year limitations period for filing a § 2254 application.
The district court concluded Prendergast‘s conviction became final on July 11, 2004, ninety days after the Colorado Supreme Court denied certiorari review of the ruling from the Colorado Court of Appeals. Because Prendergast did not raise claims attacking the original conviction until over seven years later, these claims would clearly exceed the one-year limitations period fоr filing an application under
Prendergast resists this conclusion by suggesting that because he timely raised claims on his 2009 resentencing, the attacks on his original conviction are now somehow resurrected. Some non-binding authority supports this argument. Prendergast points us to Ferreira v. Sec‘y, Dep‘t of Corr., 494 F.3d 1286 (11th Cir.2007). The Eleventh Circuit‘s reasoning in Ferreira relied in large part on an earlier opinion, Walker v. Crosby, 341 F.3d 1240 (11th Cir.2003), which more directly supports Prendergast‘s position.
In Walker, a state prisoner presented an application for habeas raising five claims. Id. at 1242. Four of these claims attacked the basis of his conviction and, on their own, would have been time-barred under AEDPA. The fifth claim was timely and challengеd the constitutionality of the prisoner‘s resentencing. This resentencing claim was also presented on direct review in state courts. Id. at 1242 & n. 3. Thus, the Walker court was presented with four untimely claims and one timely claim. Id.
The Walker court concluded that the one timely claim made the four otherwise untimely claims once аgain timely. The court reasoned that because
Prendergast invites us to apply this same rule to his application by measuring the AEDPA statute of limitations for all five of his claims from the date his resentencing became final. Because his resentencing claim was filed within the one-year limitations period under AEDPA, adopting the Walker rule would make the attacks on his conviction timely. For several reasons, however, we decline to adopt the Walker rule in Prendergast‘s case.
First, in Walker no dispute existed about whether the defendant had properly exhausted state court remedies on the timely-filed resentencing claim. As we noted above, however, Prendergast has failed to properly exhaust his resentencing claims in state court. To extend the Walker rule to allow timely-filed but unexhausted state remedies to provide a vehicle for a federal court to reach the merits on untimely claims would undercut AEDPA‘s goal of requiring state courts to first address such claims.
Second, even if Prendergast had properly exhausted his state court remedies on the resentencing claims, we would decline to endorse the Eleventh Circuit‘s position in Walker. Rather, we are persuaded that then-Judge Alito‘s opinion in Fielder v. Varner, 379 F.3d 113 (3d Cir.2004), provides a strong alternative to the Walker rule.
Fielder rejected this argument. Rather, the Third Circuit returned to the text of
The court continued:
this reference to “the latest” date does not appear in subsection (D) and it does not pertain to the issue at hand. The reference to “the latest” date in
§ 2244(d)(1) tells a court how to choose from among the four dates specified in subsections (A) through (D) once those dates are identified. This language does not tell a court how to identify the date specified in subsection (D) in a case in which the application contains multiple claims. Accordingly, there is nothing in§ 2244(d) that suggests that a court should follow the Walker interpretation and select the latest date on which the factual predicate of any claim presented in a multi-claim application could have reasonably been discovered. It would be just as consistent with the statutory language to pick the earliеst date.
Id. The court went on to conclude
And second, the court determinеd that “a claim-by-claim approach is necessary in order to avoid results that we are confident Congress did not want to produce.” Id. at 119-20. Indeed, if the Walker court was correct on Congress‘s intentions in AEDPA, then a “late-accruing federal habeas claim ... [would] open the door for the assertion of othеr claims that had become time-barred years earlier,” well after the time when the evidence to consider such other claims might have been discarded. Id. at 120.
We are persuaded by the Third Circuit‘s reasoning in Fielder. Indeed, we might add that the Walker rule creates a perverse incentive for potential habeas petitioners with otherwise time-barred constitutional clаims to violate the terms of their sentence. Under Walker, a petitioner who had failed to raise now time-barred claims would have reason to commit some infraction, incur resentencing, allege a constitutional violation in the resentencing, and resuscitate the time-barred claims.
A number of other courts have endorsed Fielder‘s rejection of Walker. See, e.g., Mardesich v. Cate, 668 F.3d 1164, 1170-71 (9th Cir.2012); Maldonado v. Thaler, 662 F.Supp.2d 684, 700-01 (S.D.Tex.2009); Khan v. United States, 414 F.Supp.2d 210, 216 (E.D.N.Y.2006); see also Bachman v. Bagley, 487 F.3d 979, 983-85 (6th Cir.2007) (distinguishing Walker yet determining that applying the Walker rule would be foreclosed by Sixth Circuit precedent that mirrored Fielder‘s reasoning). Further, the Eleventh Circuit itself appears poised
III. Conclusion
Based on the foregoing analysis, we DENY petitioner‘s aрplication for a certificate of appealability, DISMISS this matter, and DENY his motion to proceed in forma pauperis.