IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02643-BNB

ANTONIO DWAN WILLIAMS,

Applicant,

v.

MR. CHAPDLAINE, Warden, and

JOHN W. SUTHERS, The Attorney General of the State of Colorado,

Respondents.

ORDER OF DISMISSAL

Applicant, Antonio Dwan Williams, is in the custody of the Colorado Department

of Corrections (DOC) and currently is incarcerated at the Sterling Correctional Facility in

Sterling, Colorado. Mr. Williams, acting pro se, initiated this action by submitting to the

Court an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Mr.

Williams is challenging the validity of his conviction and sentence in Case No.

07CR3324 in the El Paso County District Court.

The Court must construe liberally the Application filed by Mr. Williams 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, 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. 

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I. Background and State Court Proceedings

Mr. Williams was convicted by a jury of first degree murder and felony murder,

and he received a life sentence in the custody of the Colorado Department of

Corrections. Mr. Williams appealed his conviction. The Colorado Court of Appeals

affirmed the conviction, but remanded the case with directions to correct the mittimus on

October 22, 2009. See People v. Williams, No. 08CA0567 (Colo. App. Oct. 22, 2009)

(unpublished opinion) (Pre-Answer Resp. at Ex. D).

Mr. Williams next filed a Colo. R. Crim. P. 35(c) postconviction motion, which the

trial court denied on October 8, 2010. Mr. Williams filed an appeal, and the Colorado

Court of Appeals affirmed the district court’s order on September 29, 2011. See People

v. Williams, No. 10CA2162 (Colo. App. Sept. 29, 2011) (unpublished opinion) (PreAnswer Resp. at Ex. I).

Mr. Williams then submitted an Application for a Writ of Habeas Corpus Pursuant

to 28 U.S.C. § 2254 to this Court on October 11, 2011. Mr. Williams asserts one claim

in the Application, alleging that his Fourth Amendment rights were violated when he was

falsely arrested and imprisoned pursuant to a defective arrest warrant that had

incorrectly merged his name with the identifying information of another individual.

On November 1, 2011, Magistrate Judge Boyd N. Boland entered an order

directing Respondents to file a Pre-Answer Response and address 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 defenses. Respondents filed a Pre-Answer Response on November 22, 2011. 

Mr. Williams filed a Reply on November 29, 2011. Respondents concede in the PreCase 1:11-cv-02643-LTB Document 13 Filed 01/04/12 USDC Colorado Page 2 of 7
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Answer Response that Mr. Williams’ Application is timely but they argue that Claim One

is procedurally defaulted.

II. Exhaustion and Procedural Default

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’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. Peoples, 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).

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“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).

A federal court is strictly limited in considering issues on habeas review when a

state court has deemed the issue procedurally barred. See Hammon v. Ward, 466 F.3d

919, 925 (10th Cir. 2006). A claim is precluded from federal habeas review when it has

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). “A state court remains free under [Michigan v. Long, 463 U.S. 1032 (1983)] to

rely on a state procedural bar and thereby to foreclose federal habeas review to the

extent permitted by [Wainwright v. Sykes, 433 U.S. 72 (1977)].” See Harris v. Reed,

489 U.S. 255, 264 (1989).

Mr. Williams raised his Fourth Amendment claim for the first time in his Rule

35(c) postconviction motion. See Pre-Answer Resp. at Ex. F. On September 29, 2011,

the Colorado Court of Appeals rejected Mr. Williams’ Fourth Amendment claim, finding 

that “even to the extent defendant’s claims survived his failure to challenge the warrant

at trial, they are barred because they were not raised on direct appeal.” Williams, No.

10CA2162 at 5. Under Colo. R. Crim. P. 35(c)(3)(VII), the claims are barred in state

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court because the claims “could have been presented” in a prior appeal proceeding. 

Relying on Coleman v. Thompson, 501 U.S. 722, 750 (1991), the Tenth Circuit has

supported the Colorado Court of Appeals’ procedural default finding and refusal to

consider a claim in a Rule 35(c) postconviction motion that could have been raised on

direct appeal. See Williams v. Broaddus, 331 F. App’x 560, 563 (10th Cir. 2009). 

Furthermore, the procedural bar is based on state law and Rule 35(c)(3)(VII) has been

applied uniformly and evenhandedly in Rule 35(c) postconviction motions that raise

claims which could have been raised on direct appeal. State of Colo. v. Wilson, --- P.3d

---, 2011 WL 2474295 (Colo. App. June 23, 2011); State of Colo. v. Hill, --- P.3d ---,

2011 WL 1797178 (Colo. App. May 12, 2011); State of Colo. v. Walton, 167 P.3d 163

(Colo. App. 2007). 

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 of justice.” Fairchild v. Workman, 579 F.3d 1134, 1141 (10th Cir. 2009)

(citing Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008) cert. denied 130 S. Ct.

238 (2009)); see also 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 v. Thompson, 501 U.S. 722, 730

(1991). Mr. Williams’ 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. Williams must show that

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some objective factor external to the defense impeded his ability to comply with the

state’s procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (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, 143 F.3d at1319. An

applicant, however, must first raise an independent constitutional claim in state court

before it can be used to establish cause for procedural default. See Livingston v.

Kansas, 407 F. App’x 267, 273 (10th Cir. 2010) (citing See Edwards v. Carpenter, 529

U.S. 446, 451-52 (2000)); see also, Gonzales v. Hartley, 396 F. App’x 506, 508-09 (10th

Cir. 2010).

Mr. Williams has failed to show cause for the default and actual prejudice as a

result of the alleged violation of federal law or demonstrate that failure to consider his

claim will result in a fundamental miscarriage of justice. As a result, Claim One is

procedurally barred from federal habeas review and this action will be dismissed.

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

from this order would not be 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 Applicant 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 is denied and the action is dismissed because

Applicant’s claim is procedurally barred. 

FURTHER ORDERED that no certificate of appealability will issue because

Applicant has not made a substantial showing of the denial of a constitutional right.

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

denied. 

DATED at Denver, Colorado, this 4th day of January , 2012.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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