lN THE UN|TED STATES DlSTR|CT COURT FOR THE D|STR|CT OF COLORADO Civil Action No. 08-cv-01308-BNB UNirED s}r_;lrgssl`crsEmD oswvsie, coton'}\:oroCOURT TERRY RlCHERT, DEC 1 l 2008 App|icantl GREGORY C_ MNAHAM ,, , b V. ""-~~._W..l.`_“`n__f?_L§l_l!;K THE COLORADO DEPART|V|ENT OF CORRECT|ONS, GARF|ELD COUNTY CONIN|UN|TY CORRECT|ONS, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. ORDER OF D|SM|SSAL Applicant, Terry Richert, currently is housed in a Garfield County community corrections center in Rifle, Colorado. Nlr. Richert has filed With the Court pro se a second amended application for a Writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity of his conviction in the Nlesa County, Colorado, district court case number 03CR1086. He paid the $5.00 filing fee. ln an orderfiled on August 7, 2008, l\/lagistrate Judge Boyd N. Boland ordered Respondents to file within twenty days a pre-answer response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). On September 17, 2008, after being granted an extension of timel Respondents filed their pre-answer response On October 'l, 20081 Applicant filed a reply to the pre-answer response The Court must construe liberally the application and the reply filed by lVlr. Richert because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106" date_filed="1991-06-03" court="10th Cir." case_name="Kenneth Hall v. Henry Bellmon">935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d 1106" date_filed="1991-06-03" court="10th Cir." case_name="Kenneth Hall v. Henry Bellmon">935 F.2d at 1110. For the reasons stated below, the Court will deny the application, and dismiss the action. On June 2, 2005, lVlr. Richert pleaded guilty pursuant to a plea agreement to possession of a controlled substance in l\/lesa County District Court case number OSCR1086. The crime to Which he pleaded guilty was committed on April 25, 2003. The law then in effect provided that possession of a schedule ll controlled substance, no matter what amount, was a class four felony. He was sentenced to six years of imprisonment plus three years of mandatory parole. lVlr. Richert did not appeal directly from the judgment of oonviction. On September 12, 2005, Nlr. Richert initiated various postconviction motions apparently challenging his sentence Two days later, on September 14, 2005, the l\/lesa County District Court denied the motions, and lVlr. Richert appealed. On April 5, 20071 the Colorado Court of Appeals affirmed See People v. Richert, No. OSCA2065 (Colo. Ct. App. Apr. 5, 2007) (not published). On December 3, 2007, the Colorado Supreme Court denied certiorari review On February 8, 2008, l\/lr. Richert initiated an original proceeding in the Colorado Supreme Court, Which denied the petition on l\/larch 20, 2008. On June 11, 2008, lVlr. Richert submitted his original application, which this Court filed on June 20, 2008. Respondents concede that the instant action is filed in a timely manner, i.e., within the one-year limitation period in 28 U.S.C. § 2244(d). Therefore, the Court need not address further the one-year limitation period . lVlr. Richert asserts three claims. As his first claiml he contends that he has been denied the benefit of a change in state law. He specifically contends that he should have received the benefit of Colo. Rev. Stat. § 18-18-405(2.3)(a)(l), which changed the class of felony for possession of less than a gram of a controlled substance from a class four felony to a class six felony and applies to offenses committed on or after Ju|y 1, 2003. As his second claim, he contends that the use of state case law, i.e., People v. McCoy1 764 P.2d 1171" date_filed="1988-11-14" court="Colo." case_name="People v. McCoy">764 P.2d 1171 (Colo. 1988), to deny the benefit of a change in state statutory law is unconstitutional as a violation of ex post facto requirements McCoy held that the language “shall apply to acts committed on or after” the effective date, “ma[de] it clear that the amendatory legislation [wa]s to have prospective application only" (emphasis added). Id. at 1174. lVlr. Richert appears to argue that he is entitled to the benefit of the change in the law reducing the felony levet of drug offenses involving the possession of small amounts of narcotics because the law became effect prior to the imposition of his sentence, even though the crime to which he pleaded guilty was committed on Apri| 25, 2003. As his third claim, he contends that, because of the ambiguous nature of state case law, i.e. the McCoy decision, as applied to state statutory law, the rule of lenity should be applied to afford him a more lenient sentence The state statutory law to which he refers is Colo. Rev. Stat. § 18-1-410(1)(f)(|), which authorizes postconviction relief when “there has been a significant change in the lawl applied to the applicant’s conviction or sentence allowing in the interests ofjustice retroactive application of the changed legal standard.” Id. Respondents contend that lVlr. Richert’s first and third claims present questions of state law only and, because they fail to present a federal constitutional claim, they may not be considered by this Court. They further contend that Mr. Richert failed to raise his second claim as a federal constitutional claim in state court. ln his reply, lVlr. Richert apparently alleges that he did not raise issues of constitutional law in state court until after the Court of Appea|s affirmed his conviction on postconviction review. 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'Sul!ivan v. Boerckef, 526 U.S. 838" date_filed="1999-06-07" court="SCOTUS" case_name="O'Sullivan v. Boerckel">526 U.S. 838 (1999); Dever v. Kansas State Penitentiary, 36 F.3d 1531" date_filed="1994-10-11" court="10th Cir." case_name="Don Michael Dever v. Kansas State Penitentiary, the State of Kansas, Attorney General of Kansas">36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is satisfied once the federal claim has been presented fairly to the state courts. See Castr'lle v. Peoples, 489 U.S. 3461 351 (1989). Fair presentation requires that the federal issue be presented properly “to the highest state court, either by direct review of the conviction or in a postconviction attack.” Deverl 36 F.3d at 1534. “Federal habeas corpus relief does not lie for errors of state |aw." Estelle v. McGuire, 502 U.S. 62" date_filed="1991-12-04" court="SCOTUS" case_name="Estelle v. McGuire">502 U.S. 62, 67 (1991) (internal quotation marks and citations omitted). lt is not the province of a federal habeas court to re-examine state-court determinations on state-law questions Id. at 67-68. Furthermore1 the “substance of a federal habeas corpus claim" must have been presented to the highest state court in order to satisfy the fair presentation requirement Picard v. Connor, 404 U.S. 270" date_filed="1971-12-20" court="SCOTUS" case_name="Picard v. Connor">404 U.S. 270, 278 (1971); see also Nichols v. Sullivan, 867 F.2d 1250" date_filed="1989-02-06" court="10th Cir." case_name="Russell Earl Nichols v. George Sullivan">867 F.2d 1250, 1252 (10th Cir. 1989). Although fair presentation does not require a habeas corpus petitioner to cite “book and verse on the federal constitution," Picard, 404 U.S. 270" date_filed="1971-12-20" court="SCOTUS" case_name="Picard v. Connor">404 U.S. at 278 (internal quotation marks omitted), “[i]t is not enough that all the facts necessary to support the federal claim were before the state courts.” Anderson v. Harless, 459 U.S. 4" date_filed="1982-11-01" court="SCOTUS" case_name="Anderson v. Harless">459 U.S. 4, 6 (1982) (per curiam). A claim must be presented as a federal constitutional claim in the state court proceedings in order to be exhausted See Duncan v. Henry, 513 U.S. 364" date_filed="1995-01-23" court="SCOTUS" case_name="Duncan v. Henry">513 U.S. 364, 365-66 (1995) (per curiam). Finally, “[t]he exhaustion requirement is not one to be overlooked lightly.” Hernandez v. Starbuck, 69 F.3d 1089" date_filed="1995-11-09" court="10th Cir." case_name="Rudy Hernandez v. Gary Starbuck, Superintendent of the Wyoming Honor Farm Attorney General of the State of Wyoming">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" date_filed="1992-06-17" court="10th Cir." case_name="Valerio Ernest Miranda v. Thomas Cooper, Superintendent, and Frank Gunter, (Gunther) Sic, Director, D.O.C.">967 F.2d 392, 398 (10th Cir. 1992). Having reviewed the state court record currently before the Court, this Court agrees that claims one and three only present issues of state law and therefore are not cognizable in a federal habeas corpus action. See 28 U.S.C. § 2254(a); see also Estelle, 502 U.S. 62" date_filed="1991-12-04" court="SCOTUS" case_name="Estelle v. McGuire">502 U.S. at 67-68. The Court further finds that lVlr. Richert failed to raise his second claim as a federal constitutional claim in state court. On postconviction review in the Colorado Court of Appeals, Mr. Richert failed to cite to a provision of the United States Constitution, thus failing to present his second claim as a federal constitutional claim in state courtl see Duncan, 513 U.S. 364" date_filed="1995-01-23" court="SCOTUS" case_name="Duncan v. Henry">513 U.S. at 365-66, or to characterize or to present the substance of his second claim as a federal claim. See Picard, 404 U.S. 270" date_filed="1971-12-20" court="SCOTUS" case_name="Picard v. Connor">404 U.S. at 278. Rather, in his state court opening and reply briefs, he simply relied upon two federal cases, Griffith v. Kentucky, 479 U.S. 314" date_filed="1987-01-13" court="SCOTUS" case_name="Griffith v. Kentucky">479 U.S. 314 (1987), and Teague v Lane, 489 U.S. 288" date_filed="1989-04-17" court="SCOTUS" case_name="Teague v. Lane">489 U.S. 288 (1989), to support his state law claim that he should have been given the benefit of amendatory state legislation. Although lVlr. Richert failed to exhaust state court remedies for his second claim for relief, the Court may not dismiss the claim for failure to exhaust state remedies if lVlr. Richert no longer has an adequate and effective state remedy available to him. See Castille, 489 U.S. at 351. No further state court remedy exists because the Colorado Court of Appeals expressly rejected the second claim on state grounds, see People v. Richert, No. 05CA2065, slip op. at 1-2, and because any future claim would be denied as successive under Colo. R. Crim. P. 35(c)(3)(V||). ThereforeT the second claim that lVlr. Richert failed to exhaust is procedurally defaulted 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 ofjustice.” Jackson v. Shanks, 143 F.3d 1313" date_filed="1998-05-05" court="10th Cir." case_name="Feldon Jackson, Jr. v. John Shanks">143 F.3d 1313, 1317 (10th Cir. 1998). App|ication 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" date_filed="1991-09-13" court="SCOTUS" case_name="Coleman v. Thompson">501 U.S. 722, 730 (1991). lVlr. Richert’s pro se status_does not exempt him from the requirement of demonstrating either cause and prejudice or a fundamental miscarriage ofjustice. See Lepiscopo v. Tansy, 38 F.3d 1128" date_filed="1994-10-25" court="10th Cir." case_name="Ralph M. Lepiscopo v. Robert J. Tansy">38 F.3d 1128, 1130 (10th Cir. 1994). To demonstrate cause for his procedural defau|t, lVlr. Richert must show that some objective factor external to the defense impeded his ability to comply with the relevant procedurai rule See Murray v. Carrier, 477 U.S. 478" date_filed="1986-06-26" court="SCOTUS" case_name="Murray v. Carrier">477 U.S. 478, 488 (1986); United States v. Salazar, 323 F.3d 852" date_filed="2003-03-26" court="10th Cir." case_name="United States v. Salazar">323 F.3d 852, 855 (10th Cir. 2003). A fundamental miscarriage ofjustice occurs when “a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. 478" date_filed="1986-06-26" court="SCOTUS" case_name="Murray v. Carrier">477 U.S. at 496; see also United States v. Cervim', 379 F.3d 987" date_filed="2004-08-11" court="10th Cir." case_name="United States v. Cervini">379 F.3d 987, 991-92 (10th Cir. 2004). A “substantia| claim that constitutional error has caused the conviction of an innocent person is extremely rare.” Schlup v. Delo, 513 U.S. 298" date_filed="1995-01-23" court="SCOTUS" case_name="Schlup v. Delo">513 U.S. 298, 324 (1995). To demonstrate a fundamental miscarriage ofjustice, l\/lr. Richert 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.” ld. l\/lr. Richert then must demonstrate “that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” ld. at 327. Liberally construing the allegations in his reply, lVlr. Richert apparently attempts to demonstrate cause for his procedural default by alleging that he failed to raise issues of constitutional law in state court until after the Court of Appeals affirmed his conviction on postconviction review. This argument is without merit because lVlr. Richert’s failure to raise a constitutional issue in state court is not an objective factor external to the defense impeded his ability to comply with the relevant procedural rule. ln addition, l\/lr. Richert does not allege that he is actually innocent Therefore, the Court finds that the second claim Mr. Richert failed to exhaust is procedurally barred because lVlr. Richert has failed to demonstrate cause and prejudice or a fundamental miscarriage ofjustice. Accordingly, it is ORDERED that claims one and three are dismissed because they only present issues of state law and, therefore are not cognizable in a federal habeas corpus action. lt is FURTHER ORDERED that the claim two is dismissed as procedurally barred lt is FURTHER ORDERED that the application is denied and the action is dismissed DATED at Denver, Colorado, this L/_ clay of /@»QC » , 2008. BY THE COURT: Zl A L. WE|NSH|ENK, Senior Judge U ited States District Court |N THE UN|TED STATES D|STR|CT COURT FOR THE D|STR|CT OF COLORADO CERT|F|CATE OF MA|L|NG Civil Action No. 08-cv-O1308-BNB Terry Richert Prisoner No. 105847 Garfield County Community Corrections PO Box 2017 Rifle, CO 81650 John J. Fuerst lll Senior Assistant Attorney General DEL|VERED ELECTRON|CALL¥ l hereby certify that l have mai!§d a copy of the ORDER AND JUDGMENT to the above-named individuals on l2 il ` GREGQRY-Q. LANGHA|V|, CLERK / / / By:“:\ BO(/Q/\~ .¢ \._, W'_...-/Deputy Clerk