Bolton v. Reed , 117 F. App'x 23 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 8 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES PATRICK BOLTON,
Petitioner-Appellant, No. 04-1170
v. (D. Colorado)
LARRY REED, Warden; ATTORNEY (D.C. No. 03-B-283) (PAC)
GENERAL OF THE STATE OF
COLORADO,
Respondents-Appellees.
ORDER
Before KELLY, BALDOCK, and HENRY, Circuit Judges.
James Patrick Bolton, a Colorado state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the district court’s decision denying
his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Mr. Bolton also seeks
to proceed in forma pauperis (IFP) in this appeal. In a previous order, we
concluded that Mr. Bolton was not entitled to a COA and was not entitled to
proceed IFP, and we dismissed the appeal. See Bolton v. Reed, No. 04-1170,
2004 WL 2407143 (10th Cir. Oct 28, 2004).
Subsequently, Mr. Bolton filed a petition for rehearing in which he
challenged the denial of a COA and also alleged that Judge Tymkovich should
recuse from the case because he had served as Colorado Solicitor General during
part of the period when criminal proceedings against Mr. Bolton were pending in
the Colorado state courts. Judge Tymkovich then decided to recuse, and we
therefore granted Mr. Bolton’s petition for rehearing for the limited purpose of
allowing Judge Tymkovich’s recusal. We also vacated the order issued on
October 28, 2004, recalled the mandate, and randomly assigned another judge to
hear this matter.
Upon review of Mr. Bolton’s allegations, we now reaffirm the conclusions
set forth in the October 28, 2004 order. We treat Mr. Bolton’s petition for
rehearing as a supplemental brief and note that, except for the matters we discuss
below, Mr. Bolton’s petition raises arguments that were properly rejected by the
district court. Accordingly, we DENY Mr. Bolton’s application for a COA and
his motion to proceed IFP, and we DISMISS this appeal.
I. BACKGROUND
Mr. Bolton’s § 2254 petition arises out of his Colorado conviction of one
count of second-degree kidnaping, three counts of second-degree burglary, and
three counts of sexual assault on a child. Mr. Bolton received a sentence of 172
years in prison for these convictions. The Colorado Court of Appeals affirmed
Mr. Bolton’s convictions and sentence on direct appeal, and the Colorado
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Supreme Court denied his petition for a writ of certiorari. Subsequently, Mr.
Bolton filed post-conviction motions in the Colorado trial court. The trial court
denied his motions, and the Colorado Court of Appeals affirmed those rulings.
The Colorado Supreme Court then denied Mr. Bolton’s petition for a writ of
certiorari in the post-conviction proceedings.
In the instant § 2254 action, Mr. Bolton raised the following claims: (1)
his trial attorney provided ineffective assistance of counsel in violation of the
Sixth Amendment by failing to allow him to participate in formulating defense
strategy and failing to advise him whether he should testify; (2) his attorney on
direct appeal provided ineffective assistance by failing to raise certain issues and
by ineffectively arguing the claims that he did raise; (3) his attorney in the state
post-conviction proceedings provided ineffective assistance; (4) his attorney in
the appeal of the post-conviction proceedings provided ineffective assistance; (5)
an impermissbly suggestive lineup and limited cross examination deprived him of
his rights to due process, equal protection, and confrontation; (6) perjury by a
prosecution witness and alteration of the transcripts to conceal the perjury
deprived him of those same rights; (7) the trial court erred in allowing evidence
of similar transactions and thereby violated those same rights; (8) the trial
court’s error in allowing hearsay testimony of a child violated those same rights;
(9) the bias of the trial court violated his due process, equal protection, and
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Eighth Amendment rights; (10) the Colorado statute regarding evidence of
similar acts is unconstitutionally vague and was applied in a manner that violated
his rights to due process, equal protection, and confrontation; (11) the denial of
his right to testify violated his rights to due process, equal protection, and
confrontation; (12) the trial court’s cumulative errors deprived him of those same
rights.
The magistrate judge concluded that Mr. Bolton’s third and fourth
claims—that he received ineffective assistance of counsel in the post-conviction
proceedings and resulting appeal—did not allege violations of federal rights and
were thus not cognizable in a § 2254 proceeding. See Rec. doc. 30, at 4
(Recommendation, filed Jan. 30, 2004). As to Mr. Bolton’s remaining claims,
the magistrate judge concluded that Mr. Bolton had failed to exhaust them in the
Colorado courts and that they were procedurally barred as a result. The
magistrate judge further concluded that Mr. Bolton had failed to demonstrate
either cause and prejudice or a fundamental miscarriage of justice excusing the
procedural bar. Upon de novo review, the district court adopted the magistrate
judge’s recommendation and dismissed Mr. Bolton’s petition.
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II. DISCUSSION
A. Application for a COA and Motion to Proceed IFP
To appeal the district court’s denial of his § 2254 petition, Mr. Bolton
must obtain a COA by making “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Bolton may make this
showing by demonstrating that “‘reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.’” Miller-El v.
Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)). “[A] claim can be debatable even though every jurist of reason
might agree, after the COA has been granted and the case has received full
consideration, that [the] petitioner will not prevail.” Id. Moreover, because he
seeks to proceed IFP in this appeal, Mr. Bolton must also demonstrate a financial
inability to pay the required fees and “a reasoned, nonfrivolous argument on the
law and facts in support of the issues raised on appeal.” McIntosh v. United
States Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotation
marks omitted).
For substantially the same reasons set forth by the magistrate judge, we
conclude that Mr. Bolton is not entitled to a COA and is not entitled to proceed
IFP. The magistrate judge’s recommendation reflects a careful analysis of the
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record and is supported by the applicable law. Mr. Bolton’s appellate brief does
not present a colorable argument undermining the magistrate judge’s conclusion
that most of his claims were unexhausted and procedurally barred and that his
claims regarding ineffective assistance of post-conviction counsel are not
cognizable in a § 2254 proceeding. Although Mr. Bolton again alleges that many
of his claims were not exhausted because of his post-conviction counsel’s
deficiencies, the ineffective assistance of counsel in post-conviction proceedings
does not constitute cause by which a § 2254 petitioner may avoid the procedural
bar. See Demarest v. Price, 130 F.3d 922, 941 (10th Cir. 1997).
B. Petition for Rehearing
In his petition for rehearing, Mr. Bolton argues that pursuant to the United
States Supreme Court’s recent ruling in Blakely v. Washington, 124 S.Ct. 2531(2004), the sentencing judge violated his Sixth Amendment rights by increasing
his sentence based upon aggravating circumstances not found by the jury.
However, this circuit has held that “Blakely does not apply retroactively to
convictions that were already final at the time the Court decided Blakely, June
24, 2004.” United States v. Price, No. 04-7058, 2005 WL 535361 (10th Cir. Mar
08, 2005). Mr. Bolton’s convictions were final by that date, and thus he cannot
succeed on his Blakely claim.
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Mr. Bolton also observes that the same Colorado Assistant Attorney
General represented the government in the state and federal proceedings, and he
argues that this continued representation was “not only highly improper, but
prejudicial.” Petition for Rehearing, at 12. We disagree. It is not improper for
the same attorney to represent the state on direct appeal and in post-conviction
proceedings.
Finally, as noted above, the other argument raised by Mr. Bolton in
support of his petition for rehearing were properly rejected by the district court
for the reasons stated in the magistrate’s well-reasoned recommendation.
C. Motion to Appoint Counsel
Mr. Bolton has also renewed his motion to appoint counsel. Mr. Bolton’s
claims are clearly lacking in merit, and there is thus no reason to appoint
counsel.
III. CONCLUSION
For substantially the same reasons set forth in the magistrate’s
recommendation we DENY Mr. Bolton’s application for a COA and DENY Mr.
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Bolton’s motion to proceed IFP. We also DENY Mr. Bolton’s Motion to
Appoint Counsel, and we DISMISS this appeal. 1
Entered for the Court,
Robert H. Henry
Circuit Judge
1
We also overrule Mr. Bolton’s Objection to the Order of the United
States Court of Appeals for the Tenth Circuit, filed February 25, 2005.
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