IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02745-BNB

WILLIAM LAWRENCE GLADNEY,

Applicant,

v.

MR. COPENHAVEN, Warden, and

THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents.

ORDER OF DISMISSAL

Applicant, William Lawrence Gladney, is a prisoner serving two consecutive life

sentences (one federal and one state) and a consecutive 11-year sentence. He is

currently incarcerated at the federal facility in Atwater, California. Mr. Gladney initiated

this action by submitting to the Court a pro se Application for a Writ of Habeas Corpus

Pursuant to 28 U.S.C. 

§ 2254 on November 21, 2011. Mr. Gladney is challenging the validity of his conviction

and sentence in Case No. 04CR3586 in the Adams County District Court of Colorado.

The Court must construe liberally the Application filed by Mr. Gladney 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. 

I. Background and State Court Proceedings

Following a jury trial in the United States District Court for the District of

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Colorado, Mr. Gladney was found guilty of a RICO violation, conspiracy to distribute and

possess with the intent to distribute a controlled substance, and a federal weapons

violation. See United States v. Hutchinson, 573 F.3d 1011, 1019 (10th Cir. 2009). He

was sentenced to two concurrent life sentences and a consecutive sentence of eleven

years. Id.

After Mr. Gladney’s federal conviction, he was convicted by a Colorado jury of

first degree murder and sentenced to life without parole, to be served consecutive to his

federal sentences. See People v. Gladney, 250 P.3d 762, 765 (Colo. App. 2010). Mr.

Gladney’s conviction was affirmed on direct appeal, see id., and the Colorado Supreme

Court denied certiorari review on October 18, 2010, see Pre-Answer Resp. at Ex. C.

On March 21, 2012, Mr. Gladney filed a post-conviction motion pursuant to

Colorado Rule of Criminal Procedure 35(c). Respondent indicates that the Rule 35(c)

motion remained pending in the state court as of July 16, 2012.

Mr. Gladney initiated this action by filing a “Memorandum” on October 21, 2011. 

He filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 on

November 21, 2011. On December 8, 2011, the Court dismissed the action for Mr.

Gladney’s failure to file a certified copy of his inmate trust fund account statement. 

Mr. Gladney filed a motion to reconsider on February 6, 2012. On February 13,

2012, the Court granted the motion to reconsider and re-opened Mr. Gladney’s case,

finding that Mr. Gladney had demonstrated that his case manager had inadvertently

provided him with an account statement that was not certified. On March 1, 2012,

Magistrate Judge Boland directed Mr. Gladney to file an Amended Application and

include a statement of the claims that he intended to raise in this Court. After receiving

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an extension of time, Mr. Gladney submitted an Amended Application on May 15, 2012.

On May 21, 2012, Magistrate Judge Boland determined that the Amended

Application was deficient because it was not on the Court-approved form, and because

Mr. Gladney again failed to include a statement of the claims that he intended to raise. 

Therefore, Magistrate Judge Boland directed him to file a Second and Final Amended

Application. Mr. Gladney submitted a Second Amended Application to the Court on

June 26, 2012. In the Second Amended Application, Mr. Gladney asserts the following

claims: (1) his right against double jeopardy was violated by the Colorado state

conviction; and (2) the trial court erred in admitting evidence of his involvement in drug

dealing as res gestae. See Second Amended Application at 5-6.

On June 26, 2012, 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. 

Respondent the Attorney General of the State of Colorado submitted a Pre-Answer

Response on July 16, 2012. On August 6, 2012, Mr. Gladney submitted a pro se

document titled “Petition to Correct a Misnomer”, which the Court will construe as a

Reply.

In the Pre-Answer Response, Respondent concedes that Mr. Gladney’s Second

Amended Application is timely. However, Respondent argues that Mr. Gladney’s claims

are unexhausted in the state courts and are now procedurally defaulted. 

II. Exhaustion and Procedural Default

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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).

“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).

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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).

Respondent argues that Mr. Gladney has failed to exhaust Claims One and Two

because he did not raise these claims on direct appeal as asserting federal

constitutional claims. Upon review of Mr. Gladney’s opening brief on direct appeal, the

Court agrees that Mr. Gladney failed to satisfy the fair presentation requirement for

Claims One and Two. See Pre-Answer Resp. at Ex. G, p. 12-35. With respect to his

first claim (violation of double jeopardy), Mr. Gladney argued in the state courts that

Colorado had adopted a statute, Colorado Revised Statute § 18-3-301, which limited

the circumstances under which Colorado may prosecute a defendant for conduct

already prosecuted by the federal government. Id. at 12-21. He asserted that the

statutory conditions for prosecution under Colo. Rev. Stat. § 18-3-301 were not met in

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his case, and that the statute provides a complete defense to any subsequent state

prosecution. Id. In the claim he raises in this Court, Mr. Gladney now asserts that his

constitutional right against double jeopardy has been violated. However, the test for

whether a defendant has been charged twice for commission of the same crime, in

violation of double jeopardy, was set forth in Blockburger v. United States, 284 U.S. 299

(1932). In his claim in the state courts, Mr. Gladney did not discuss or apply the

Blockburger test; instead, he focused on the argument that the state court had violated

Colo. Rev. Stat. § 18-3-301 in prosecuting him. See Pre-Answer Resp. at Ex. G, p. 12-

21. Mr. Gladney relied primarily on Colorado state case law in developing his argument

that the trial court erred in denying his motion to dismiss the case. Id.

Likewise, with respect to Mr. Gladney’s second claim (trial court erred in

admitting evidence of his involvement in drug dealing), Mr. Gladney again relied on

Colorado state case law in developing this claim. Mr. Gladney argued in the state

courts that Colorado should abolish the res gestae doctrine and that the evidence of his

drug dealing was inadmissible under Colorado evidentiary rules. Id. at 17-25. While it

is true that the admission of evidence can rise to the level of a due process violation,

“the alleged error [must be] so grossly prejudicial that it fatally infected the trial and

denied the fundamental fairness,” before habeas relief is available. Bullock v. Carver,

297 F.3d 1036, 1055 (10th Cir. 2002) (quotations and brackets omitted); see also

Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (observing that “the Constitution

guarantees criminal defendants a meaningful opportunity to present a complete

defense” (quotations omitted)). In this case, Mr. Gladney did not develop a federal

constitutional argument that his due process rights were violated by the admission of

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evidence that rendered his trial “fundamentally unfair”. See id. Instead, he challenged

the admission of the evidence under Colorado state law. See Pre-Answer Resp. at Ex.

G, p. 22-35.

 In order to allow the state courts the opportunity to act on or correct the

constitutional violations Mr. Gladney alleges, he must do more than just invoke magic

words which may possibly be interpreted to raise a constitutional claim. Instead, he

must provide legal theory explaining how the decisions of the state court violated the

particular federal constitutional rights he claims were violated. See, e.g., Anderson, 459

U.S. at 78 (claim on direct appeal that jury instruction was reversible error did not fairly

present due process challenge to instruction for habeas exhaustion purposes); Picard,

404 U.S. at 276-77 (holding that habeas petitioner failed to fairly present federal claim to

state court where, despite presenting all necessary facts, petitioner failed to assert

specific argument that he later tried to raise in federal court); see also Thomas v.

Gibson, 218 F.3d 1213, 1221 n. 6 (10th Cir. 2000) (holding that petitioner’s general

state court claim was insufficient to exhaust his later, more specific federal habeas

claim). Accordingly, the Court finds that Mr. Gladney has failed to exhaust state court

remedies for Claims One and Two, because he did not raise these claims as asserting

federal constitutional violations.

Moreover, with limited exceptions that are not applicable to these claims, the

Colorado Rules of Criminal Procedure bar Mr. Gladney from raising a claim in a postconviction motion that could have been raised on direct appeal, or that was already

raised on post-conviction appeal. See Colo. R. Crim. P. 35(c)(3)(VI) (“The court shall

deny any claim that was raised and resolved in a prior appeal or postconviction

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proceeding on behalf of the same defendant”); Colo. R. Crim. P. 35(c)(3)(VII) (“The

court shall deny any claim that could have been presented in an appeal previously

brought or postconviction proceeding previously brought”); see also People v. Bastardo,

646 P.2d 382, 383 (Colo. 1982) (stating that post-conviction review is not available to

address under a recently contrived constitutional theory issues that were raised

previously). Therefore, the Court finds that Mr. Gladney has procedurally defaulted

Claims One and Two. 

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. Gladney’s 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. Gladney must show that

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

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for a claim was not reasonably available to [applicant].” McCleskey v. Zant, 499 U.S.

467, 493-94 (1991) (internal quotation marks omitted). 

Mr. Gladney 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

claims will result in a fundamental miscarriage of justice. As a result, Mr. Gladney’s

claims are 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

ORDERED that the Second Amended Application is denied and the action is

dismissed because Applicant’s claims are procedurally barred. It is 

FURTHER ORDERED that no certificate of appealability will issue because

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

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

denied with leave to re-file in the Tenth Circuit. It is

FURTHER ORDERED that all pending motions are denied as moot.

DATED at Denver, Colorado, this 27th day of August , 2012.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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