Opinion
Civil Action No. 06-cv-01129-PSF-MEH.
December 28, 2006
ORDER ON MAGISTRATE RECOMMENDATIONS DATED OCTOBER 26, 2006 AND DECEMBER 6, 2006
This matter comes before this Court on the first Recommendation of the Magistrate Judge entered October 26, 2006 (Dkt. # 35), recommending dismissal of plaintiff's habeas corpus petition, and the second Recommendation of the Magistrate Judge entered December 6, 2006 (Dkt. # 42) recommending denial of plaintiff's motion to amend his habeas corpus application (Dkt. # 39). Plaintiff filed his Objection to the first Recommendation on November 3, 2006 (Dkt. # 36). Moore than 20 days have elapsed and plaintiff has not filed an objection to the second Recommendation of the Magistrate Judge. Plaintiff filed a handwritten document and attachment on December 19, 2006 (Dkt. # 44), but that document, although difficult to understand, does not appear to be an objection to the second Recommendation. Accordingly, this matter is ripe for determination.
BACKGROUND
Plaintiff Hector Hugo Martinez-Jimenez, a state prisoner, pled guilty to vehicular assault in the Adams County District Court. On September 20, 2000, the district court judge sentenced him to 12 years custody of the Department of Corrections, within the maximum aggravated range but beyond the presumptive range for the offense of which he was found guilty. In imposing the sentence the district court judge stated:
I find, if I need to, that there are extraordinary aggravating circumstances. I find this beyond any doubt whatsoever, because of the horrible consequences of this crime, the injuries, the lifelong injuries to [the victim], the fact that [the plaintiff] had a prior driving under the influence charge, not one year earlier. He was driving on this date with a revoked license. He had no insurance. He was involved in another accident that he was fleeing from at the time that this crime was committed.
Exhibit B to Answer to Petition (Dkt. # 20) at 2.
As the Magistrate Judge correctly found, after plaintiff was denied post-conviction relief from his sentence he appealed to the Colorado Court of Appeals making two related arguments. First, he argued that the trial court erroneously based the aggravated sentence on judicial facts, namely those set forth above, that had not been admitted by plaintiff or proved to a jury beyond a reasonable doubt, in violation of the rule established in Apprendi v. New Jersey, 530 U.S. 466 (2000). Second, the plaintiff argued that to the extent the trial court considered what it described as his "prior driving under the influence charge, not one year earlier," which in fact was a conviction for driving under the influence, a misdemeanor in Colorado, the trial court violated the rule of Apprendi because, plaintiff urged, the prior conviction exception of that decision only applied to prior convictions for felonies, not misdemeanors.
The Colorado Court of Appeals denied plaintiff's appeal on October 13, 2005 holding that the prior conviction exception of Apprendi, as interpreted by the Colorado Supreme Court in Lopez v. People, 113 P.3d 713 (Colo. 2005), cert. denied 126 S.Ct. 654 (2005), was not limited to misdemeanors ( see Exhibit E to Answer (Dkt. 20) at 2-3), and that because this prior conviction alone sufficiently supported the trial court's decision to impose an aggravated range sentence, it need not consider the other factors on which the trial court relied. Id. at 4.
In his petition for certiorari to the Colorado Supreme Court, the plaintiff only raised the issue of whether the sentencing court could rely on the prior misdemeanor conviction to impose a discretionary aggravated range sentence. See Exhibit F to Answer (Dkt. # 20), at 3. The Colorado Supreme Court denied plaintiff's certiorari petition on May 22, 2006. See Exhibit G to Answer (Dkt. # 20), at 2. Plaintiff timely filed his pro se habeas corpus petition in this Court on June 6, 2006 (Dkt. # 3).
THE MAGISTRATE JUDGE'S FIRST RECOMMENDATION AND PLAINTIFF'S OBJECTION
The Magistrate Judge first found that to the extent plaintiff seeks here to challenge the trial court's sentence enhancement because it was based on factors that had not been admitted by him or proved to a jury beyond a reasonable doubt, he waived that claim by failing to exhaust his remedies in state court. By failing to raise that issue in his certiorari petition to the Colorado Supreme Court, he failed to fairly present his claim in each appropriate state court, including a state supreme court with powers of discretionary review. Therefore, the Magistrate Judge found he failed to alert that court to the federal nature of the claim and thereby waived it for purposes of habeas review (Recommendation at 7-8). Accordingly, the Magistrate Judge confined his analysis of plaintiff's habeas petition solely to the argument that the prior conviction exception to the Apprendi rule does not apply to a prior misdemeanor conviction.
In his Objection to this Court, the plaintiff does not challenge the finding of waiver by the Magistrate Judge. Indeed, his Objection to this Court plaintiff states only that his argument on the issue of whether "a prior misdemeanor can be used to aggravate a sentence" is best put forward in his certiorari petition to the Colorado Supreme Court, a copy of which he inserted into his Objection ( See Dkt. # 36 at 2-10).
ANALYSIS
This Court accepts the finding in the first Recommendation of the Magistrate Judge that review of plaintiff's habeas petition here is limited to the one issue he raised in his certiorari petition, and alleged again in his habeas petition.
In analyzing the substance of plaintiff's one claim, the Magistrate Judge correctly started from the proposition that plaintiff is entitled to federal habeas relief only if he can establish that the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254(d)(1)-(2). The issue of whether the Apprendi prior conviction exception included misdemeanor convictions is a question of law, not involving any determination of the facts in light of the evidence presented. Plaintiff does not argue here, nor did he argue before the Colorado Court of Appeals, that the fact of a prior conviction for driving under the influence, on which the sentencing judge relied, was a matter of factual dispute.
This Court notes that in plaintiff's direct appeal of his sentence he appears to have claimed that the prior charge for driving under the influence occurred much earlier than as stated by the sentencing judge. See Exhibit B to Answer (Dkt. 20) at 2. However, he apparently did not raise that claim in the appeal of his post-conviction motion, or in his certiorari petition, so that any such factual issue would also be waived at this stage of the proceedings.
Thus, the Magistrate Judge was correct in stating that the petition here can be granted only if the adjudication of the plaintiff's claim in the state courts 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 (Recommendation at 7).
The Magistrate Judge found that the Colorado Court of Appeals, in following Lopez v. People, and in its interpretation of Apprendi to include within the prior conviction exception a prior conviction for a misdemeanor, did not reach a result contrary to or involving an unreasonable application federal law. As the Magistrate Judge stated, there is no federal case cited by plaintiff which limits the Apprendi prior conviction exception to prior felonies and precludes its application to prior misdemeanor convictions. Thus, there is no basis to state that the Colorado Court of Appeals unreasonably applied the Supreme Court precedents to plaintiff's case (Recommendation at 8-9). Accordingly, the Magistrate Judge correctly concluded that plaintiff is not entitled to habeas corpus relief under 28 U.S.C. § 2254.
In his Objection to this Court plaintiff argues that the decision in Shepherd v. United States, 544 U.S. 13 (2005) stands for the proposition that the "prior conviction exception [of Apprendi] is no longer viable" and that the "new rule established" by Shepherd should be applied to his case. Objection at 11. Plaintiff misconstrues the holding in Shepherd. The opinion in that case addresses only the narrow issue of the circumstances under which a defendant's prior conviction for burglary can be used as a predicate to enhance a sentence under the federal statute known as the Armed Career Criminal Act, 18 U.S.C. § 924(e). Nothing in the Shepherd opinion purports to state that Apprendi is no longer viable, or that a prior conviction or guilty plea can not be used to enhance a sentence. Moreover, there is no discussion in Shepherd differentiating between a prior felony conviction and a prior misdemeanor conviction, the only distinction that would be relevant to plaintiff's argument for habeas relief. The Court thus finds there is no basis for granting the habeas relief requested by plaintiff.
Plaintiff's Objection does not provide a page reference to the Shepherd decision where this proposition is supposedly found. However, the Court notes that a similar argument appears in the certiorari petition contained within the Objection ( see Objection at 5, 8). The citation there, however, is to the concurring opinion of Justice Thomas, not the majority opinion of the Court.
THE MAGISTRATE JUDGE'S SECOND RECOMMENDATION
In a handwritten filing made on November 15, 2006 (Dkt. # 39), plaintiff appears to have moved to amend his habeas petition to assert other grounds for habeas relief. In his Recommendation of December 6, 2006, while plaintiff's habeas petition was still pending, the Magistrate Judge recommended denial of this request, as there is no showing that plaintiff exhausted these claims in state court. As the Court has now decided to dismiss plaintiff's habeas petition, his request to amend the same is also moot. Accordingly, his motion to amend the petition is denied.
CONCLUSION
The Recommendations of the Magistrate Judge (Dkt. ## 35 and 42) are accepted and plaintiff's petition for writ of habeas corpus (Dkt. # 3) is DENIED.
Plaintiff's Motion to Amend his petition (Dkt. # 39) is DENIED.
The Clerk of the Court is directed to TERMINATE this case.