Glaser v. Everett , 536 F. App'x 817 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
September 13, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DOUGLAS A GLASER,
Petitioner - Appellant, No. 13-1292
v. (D. Colorado)
V. EVERETT; THE ATTORNEY (D.C. No. 1:13-CV-00961-LTB)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
Applicant and appellant, Douglas A. Glaser, a Colorado state prisoner
proceeding pro se, seeks a certificate of appealability (“COA”) in order to appeal
the dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The
district court dismissed the petition without prejudice for failure to exhaust state
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
remedies. After concluding that Mr. Glaser has failed to meet the standard for the
issuance of a COA, we deny him a COA and dismiss this matter.
BACKGROUND
As stated by the district court, Mr. Glaser was first arrested on February 14,
2005, and “the procedural history of [his criminal] case is extraordinarily tortured
and star-crossed.” People v. Glaser, 250 P.3d 632, 635 (Colo App. 2010). That
2010 Colorado Court of Appeals decision regarding Mr. Glaser described his
procedural history as including, “[a]mong other things, eight rescheduled trial
dates, two mistrials, three replacements of defense counsel (including one because
of a suicide and another because of a mental breakdown mid-trial), one
interlocutory appeal by the prosecution, and two petitions to the supreme court by
defendant.” Id. On January 21, 2010, after the trial court dismissed the charges 1
against Mr. Glaser on state and federal constitutional speedy trial grounds, the
Colorado Court of Appeals reversed and remanded the case with directions to
reinstate the charges. See id.Mr. Glaser was subsequently re-arrested in April 2011. Following a trial in
January 2012, he was convicted of securities fraud. Mr. Glaser was convicted of
other charges following trials in June 2012. On August 27, 2012, he was
1
Mr. Glaser had been charged with securities fraud and related counts of
theft, forgery, conspiracy and criminal impersonation.
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sentenced by the Denver District Court to a total term of twenty-five years’
imprisonment for all of his convictions. Mr. Glaser then filed a direct appeal to
the Colorado Court of Appeals, and the parties agree (and we have found no
evidence to the contrary) that the direct appeal remains pending in the Colorado
appellate court. 2
On May 2, 2013, Mr. Glaser filed an Application for a Writ of Habeas
Corpus, challenging the validity of his convictions which resulted in the twenty-
five year sentence. He alleged fifteen claims for relief: (1) inordinate delay with
respect to his direct appeal; (2) denial of a fair trial with respect to the securities
fraud counts; (3) denial of sixth amendment right to effective assistance of
counsel; (4) double jeopardy violation with respect to counts 20-42; (5) double
jeopardy violation with respect to counts 1-19; (6) double jeopardy violation with
respect to count 43; (7) denial of sixth amendment right to a speedy trial; (8)
illegal search and seizure in violation of the Fourth Amendment; (9) denial of due
process based on prosecutorial bias and misconduct; (10) denial of due process
based on the prosecution’s failure to provide a bill of particulars; (11) denial of
due process based on malicious and vindictive prosecution; (12) denial of due
process based on the reinstatement of charges in February 2007; (13) insufficient
evidence to support convictions on securities fraud counts; (14) insufficient
2
The case number for Mr. Glaser’s direct appeal pending before the
Colorado Court of Appeals is 12CA1795.
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evidence to support convictions on racketeering count; and (15) cruel and unusual
punishment based on the length of the prison sentence imposed and prison
classification and placement.
On May 3, 2013, the magistrate judge to whom the matter had been referred
ordered the Respondents/Appellees to file a Pre-Answer Response limited to
raising the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and
exhaustion of state court remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) if
Respondents intended to raise either or both of those defenses at trial. On
May 23, 2013, Respondents filed a Pre-Answer Response in which they argued
that the application should be denied without prejudice for failure to exhaust state
remedies.
After explaining why claim 15, relating to alleged cruel and unusual
punishment based on the length of Mr. Glaser’s prison sentence and his prison
classification and placement, was not properly raised in a habeas petition, the
magistrate judge considered whether the remaining claims had been exhausted.
Finding that Mr. Glaser had failed to satisfy his burden to show that he had
exhausted the available state remedies, the magistrate judge recommended
dismissal of the complaint. The district court agreed, and dismissed the
complaint without prejudice. The court also denied Mr. Glaser a COA,
concluding that he has “not made a substantial showing of the denial of a
constitutional right.” Order at 8. This request for a COA followed.
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DISCUSSION
“A COA is a prerequisite to appellate jurisdiction in a habeas action.”
Lockett v. Tramel, 711 F.3d 1218, 1230 (10th Cir. 2013). It may issue “only if
the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected . . .
constitutional claims on the[ir] merits,” the applicant “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Where a district court’s ruling rests on procedural grounds, the applicant must
prove both “that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling.” Id.; Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012).
The district court carefully and thoroughly explained why Mr. Glaser’s case
must be dismissed for failure to exhaust. As the court stated, before seeking
federal habeas relief, a state prisoner must first exhaust state remedies, or show
that such remedies are ineffective. 28 U.S.C. § 2254(b)(1). “The exhaustion
requirement is satisfied if the issues have been properly presented to the highest
state court, either by direct review of the conviction or in a post-conviction
attack.” Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (quotation
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omitted); see Castille v. Peoples, 489 U.S. 346, 351 (1989). The court concluded
that Mr. Glaser had failed to meet his burden to prove exhaustion:
First, there is no dispute that case number 12CA1795, Mr. Glaser’s
direct appeal from the judgment of conviction, remains pending in
the Colorado Court of Appeal. As a result, it is clear that Mr. Glaser
has not fairly presented any claims to the state courts on direct
appeal.
Second, Mr. Glaser fails to demonstrate that he has
experienced inexcusable or inordinate delay with respect to the state
court direct appeal proceedings following his sentencing in August
2012. Inexcusable or inordinate delay in state court proceedings may
make the state process ineffective to protect a habeas applicant’s
rights and excuse a failure to exhaust state remedies.
....
Third, the Court is not persuaded by Mr. Glaser’s conclusory
assertion that he has exhausted state remedies because he “has
clearly presented his federal claims to the Colorado Supreme Court
on numerous occasions, all of which were denied en banc.” Because
Mr. Glaser was not sentenced until August 2012, the Court finds that
he could not have fairly presented to the Colorado Supreme Court in
any of the proceedings prior to his sentencing all of the claims he
raises in this action challenging the validity of his conviction and
sentence. With respect to state court proceedings after his sentencing
in August 2012, Mr. Glaser contends he has satisfied the exhaustion
requirement by filing a petition in the Colorado Supreme Court
pursuant to Rule 21 of the Colorado Rules of Appellate Procedure in
September 2012. . . .
The Court finds that the C.A.R. 21 petition Mr. Glaser filed in
the Colorado Supreme Court in September 2012 does not satisfy the
fair presentation requirement because a “claim . . . presented [to the
state’s highest court] for the first and only time in a procedural
context in which its merits will not be considered unless there are
special and important reasons therefor . . . does not, for the relevant
purpose, constitute fair presentation.” Castille, 489 U.S. at 351(internal quotation marks and citation omitted); see also Parkhurst v.
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Shillinger, 128 F.3d 1366, 1369 (10th Cir. 1997) (state procedure
that is discretionary and limited in scope does not constitute fair
presentation). The Colorado Supreme Court, in its discretion, may
decline to address the merits of claims asserted in an original petition
for an extraordinary writ. . . . As a result, the denial of an original
petition for an extraordinary writ by the Colorado Supreme Court
does not indicate that the court has considered the merits of the
argument.
Order at 6-8. We completely agree with the district court’s reasoning and
conclusion. We accordingly deny a COA for Mr. Glaser and dismiss this matter.
Finally, we agree with the district court that this appeal was not taken in good
faith, as there is no basis for challenging the propriety of the court’s decision.
We therefore deny Mr. Glaser’s request to proceed on appeal in forma pauperis
and remind him that he remains liable for all appellate fees. We also deny his
motion to file a supplemental brief.
CONCLUSION
For the foregoing reasons, we DENY a COA and DISMISS this matter.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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