IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02470-LTB

KEITH C. BROOKS, JR.,

Applicant,

v.

ANGEL MEDINA, Warden, Limon Correctional Facility, and

THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents.

ORDER OF DISMISSAL

I. Background

Applicant, Keith C. Brooks, Jr., is in the custody of the Colorado Department of

Corrections (DOC) and is incarcerated at the DOC correctional facility in Limon,

Colorado. On September 20, 2011, Mr. Brooks, acting pro se, filed an Application for a

Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. In an order entered on

November 21, 2011, Magistrate Judge Boyd N. Boland directed Respondents to file a

Pre-Answer Response limited to addressing the affirmative defenses of timeliness

under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C.

§ 2254(b)(1)(A) if Respondents intend to raise either or both of those affirmative

defenses in this action. On December 29, 2011, Respondents filed their Pre-Answer

Response. Mr. Brooks filed a Reply on January 30, 2011. The Court will deny the

Application for the following reasons.

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Mr. Brooks pled guilty to second degree burglary and theft in El Paso County

District Court Case No. 00CR737 and was sentenced on June 12, 2000, to four years of

probation with restitution. Pre-Answer Resp., Appx. D at 1. As part of the plea

agreement in Case No. 00CR737, outstanding restitution from Mr. Brook’s previous

conviction in Case No. 99JD1799 was transferred to Case No. 00CR737. Id. In

January 2001, Mr. Brooks violated his probation in Case No. 00CR737. Id. As a result,

he was placed in community corrections, where he attempted to escape and was

resentenced to two years of incarceration in the DOC. Id. at 2.

From April 19, 2004, until December 27, 2007, Mr. Brooks filed several

postconviction motions in both Case No. 00CR737 and Case No. 99JD1799. See Appx

F. The postconviction motion at issue here is the Colo. R. Crim. P. 35(c) postconviction

motion that was filed on December 27, 2007, in Case No. 00CR737. In the December

27 motion, Mr. Brooks asserted several claims, including: (1) unauthorized restitution

under state statute; (2) ineffective assistance of counsel for failure to ask for a restitution

hearing, resulting in a coerced, invalid plea; (3) lack of court authority to transfer

restitution; (4) collateral estoppel; and (6) improper subrogation. The district court

denied the motion, and Mr. Brooks appealed.

In his appeal, Mr. Brooks raised four claims, including: (1) lack of jurisdiction by

the juvenile court to transfer the restitution from Case No. 99JD1799 to Case No.

00CR737; (2) lack of jurisdiction by the district court to order him to pay the transferred

restitution in Case No. 00CR737; (3) right to be free from double jeopardy; and (4) an

invalid plea agreement due to the illegal order of restitution. Mr. Brooks also set forth 

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an ineffective assistance of counsel claim. He argued that counsel accepted an illegal

sentence as part of the plea agreement and directed Mr. Brooks to accept the plea.

The Colorado Court of Appeals (CCA) affirmed the district court’s order but

remanded the case to the district court with directions to remove the transferred

restitution amount from the mittimus in Case No. 00CR737. The CCA found that the

district court had no authority to include the restitution order in the plea agreement and

the juvenile court lacked authority to transfer the obligation. The CCA, however,

declined to address Mr. Brooks’ three remaining claims because the claims were

presented for the first time on appeal. 

Mr. Brooks asserts two claims in this Application, including: (1) the conviction in

Case No. 00CR737 violated his Sixth and Fourteenth Amendment rights because his

plea was based on an illegal sentence; and (2) counsel failed to provide effective

assistance when he advised him to plead guilty to an illegal sentence. 

Respondents concede the action is timely, but they contend both claims are

procedurally defaulted.

II. Analysis

The Court must construe liberally the Application and Reply because Mr. Brooks

is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not

act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

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

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rights. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State

Penitentiary, 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

Castille v. People, 489 U.S. 346, 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.” Dever, 36 F.3d at 1534.

Furthermore, the “substance of a federal habeas corpus claim” must have been

presented to the state courts in order to satisfy the fair presentation requirement. Picard

v. Connor, 404 U.S. 270, 278 (1971); see also Nichols v. 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. 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, 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, 365-

66 (1995) (per curiam).

“The exhaustion requirement is not one to be overlooked lightly.” Hernandez v.

Starbuck, 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, 398 (10th Cir. 1992).

Respondents argue that Mr. Brooks’ claims are procedurally defaulted in state

court because he raised the claims for the first time on direct appeal. The Colorado

Supreme Court has held that an appellate court will not consider an issue that is not

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presented to the district court and is raised for the first time on appeal. See People v.

Diefenderfer, 784 P.2d 741, 752 (Colo. 1989); see also, People v. Martinez, 634 P.2d

26, 32 (Colo. 1981).

In his Reply, Mr. Brooks concedes he did not raise the double jeopardy claim in

the state district court. He argues, however, that the district court was alerted to the

constitutional basis for his ineffective assistance of counsel claim and his invalid plea

claim.

The Court has reviewed the claims Mr. Brooks raised in his December 27, 2007,

postconviction motion in the state district court and in his opening brief on appeal. In

the district court, Mr. Brooks challenged (1) his counsel’s failure to seek a restitution

hearing, and (2) the validity of his guilty plea in 00CR737 based on counsel’s failure to

seek a hearing. The claims Mr. Brooks raised in the state district court were based on

counsel’s alleged failure to pursue a restitution hearing. The claims Mr. Brooks raised

in his opening brief on appeal, however, were based on an alleged illegal sentence that

included the restitution from his juvenile conviction. He did not challenge counsel’s

failure to pursue a restitution hearing or claim a coerced plea based on a promised

hearing in his opening brief on appeal.

 The claims filed in the district court are only “somewhat similar” to the claims Mr.

Brooks raised in the CCA. See Duncan, 513 U.S. at 366. Mere similarity of claims is

insufficient to exhaust. Picard, 404 U.S. at 275; Anderson, 459 U.S. at 6

Mr Brooks, therefore, has failed to present his claims in a full round of the State’s

established appellate review process as required by O’Sullivan. See O’Sullivan, 526

U.S. at 845. (The requirement of exhaustion of state remedies in federal habeas cases

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dictates that a state prisoner must "give the state courts a full opportunity to resolve any

constitutional issues by invoking one complete round of the State's established

appellate review process."). As a result the CCA did not address the issues presented

in Claims One and Two, and the claims are not exhausted.

Furthermore, unexhausted habeas claims are precluded from federal habeas

review when the claims have been defaulted in state court on an independent and

adequate state procedural ground. Steele v. Young, 11 F.3d 1518, 1521 (10th Cir.

1993) (citations omitted). “A state procedural ground is independent if it relies on state

law, rather than federal law, as the basis for the decision . . . . For the state ground to

be adequate, it must be strictly or regularly followed and applied evenhandedly to all

similar claims.” See Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (internal

quotations and citations omitted). Also, if it is obvious that an unexhausted claim would

be procedurally defaulted in state court the claim is held procedurally barred from

federal habeas review. Steele, 11 F.3d at 1524 (citing Coleman v. Thompson, 501 U.S.

722, 735 n.1 (1991); Harris v. Reed, 489 U.S. 255, 269-70 (1989)).

The Colorado Rules of Criminal Procedure prohibit successive postconviction

Rule 35 motions with limited exceptions. The limited exceptions include whether there

is a basis for an event that took place after the initiation of a prior appeal or

postconviction proceeding, or evidence that could not have been discovered through the

exercise of due diligence. See Colo. R. Crim. P. 35(c)(3)(VI) and (VII). The exceptions

are not applicable to either claim. Id. There is neither an event that took place after the

initiation of Mr. Brooks’ December 27, 2007 postconviction motion or evidence that

could not have been discovered through the exercise of due diligence justifying a

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successive postconviction motion regarding his claims. Id.

A procedural default may be “excused through a showing of cause and actual

prejudice or a fundamental miscarriage of justice.” Jackson v. Shanks, 143 F.3d 1313,

1317 (10th Cir. 1998). Application of this procedural default rule in the habeas corpus

context is based on comity and federalism concerns. See Coleman, 501 U.S. at 730. 

Mr. Brooks’ pro se status does not exempt him from the requirement of demonstrating

either cause and prejudice or a fundamental miscarriage of justice. See Lepiscopo v.

Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994).

To demonstrate cause for his procedural default, Mr. Brooks must show “some

objective factor external to the defense impeded counsel’s efforts to comply with the

State’s procedural rule” and have “presented to the state courts as an independent

claim before it may be used to establish cause for a procedural default.” Murray v.

Carrier, 477 U.S. 478, 488-89 (1986). “Objective factors that constitute cause include

interference by officials that makes compliance with the State’s procedural rule

impracticable, and a showing that the factual or legal basis for a claim was not

reasonably available to [applicant].” McCleskey v. Zant, 499 U.S. 467, 493-94 (1991)

(internal quotation marks omitted). Ineffective assistance of counsel may establish

cause excusing a procedural default. Jackson v. Shanks, 143 F.3d at 1319. 

A fundamental miscarriage of justice occurs when “a constitutional violation has

probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at

496. A “substantial claim that constitutional error has caused the conviction of an

innocent person is extremely rare.” Schlup v. Delo, 513 U.S. 298, 324 (1995). In order

to demonstrate a fundamental miscarriage of justice, Mr. Brooks first must “support his

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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.” Id. Mr. Brooks then must demonstrate “that it is more likely

than not that no reasonable juror would have convicted him in light of the new

evidence.” Id. at 327.

Construing his Application liberally, Mr. Brooks does not argue any basis for

finding cause and prejudice or a fundamental miscarriage of justice. He only argues

that this Court is not bound by the CCA’s erroneous finding and he should not be

procedurally barred from a review of the merits of his application based on the

erroneous finding. As stated above, the CCA’s findings were not erroneous but were

properly based on an independent and adequate state procedural ground. Mr. Brooks,

therefore, fails to show that a factor external to the defense impeded counsel’s ability to

comply with the state’s procedural rule and was presented as an independent claim. He

also fails to present any new reliable evidence that demonstrates he is actually

innocent. As a result, both claims are barred from federal habeas review.

III. Conclusion

Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal

from this Order is not taken in good faith, and, therefore, in forma pauperis status will be

denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438

(1962). If Mr. Brooks files a notice of appeal he must also pay the full $455 appellate

filing fee or file a motion to proceed in forma pauperis in the United States Court of

Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24. 

Accordingly, it is

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ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28

U.S.C. § 2254 is denied and this action is dismissed on the merits. It is

FURTHER ORDERED that no certificate of appealability shall issue because Mr.

Brooks has failed to show that jurists of reason would find it debatable that the district

court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85

(2000). It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is

denied. 

DATED at Denver, Colorado, this 8th day of February , 2012.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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