August 24, 2019

Tenth Circuit: State Court’s Refusal to Consider Merits of Claim Because It Was Previously Determined Was Not a Proper Basis for Denying Federal Habeas Review

The Tenth Circuit Court of Appeals published its opinion in LeBere v. Abbott on Friday, October 18, 2013.

Kent LeBere is serving a 60-year term of imprisonment imposed by a Colorado court as a result of his conviction for second-degree murder and second-degree arson. In his 28 U.S.C. § 2254 petition for habeas relief, he contended the State relied on perjured testimony and withheld potentially exculpatory evidence material to his defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). The only question presented was whether federal courts may consider his claim. It involved the interplay between state and federal procedural rules.

After LeBere began serving his sentence and while his direct appeal was pending, Ronnie Archuleta, a key witness against him, recanted his testimony. LeBere moved for a new trial based upon that newly discovered evidence. His new trial motion became a collateral part of his direct appeal, which was denied. LeBere then brought this habeas petition claiming, for the first time, a Brady violation based on the undisclosed acts of a detective who allegedly encouraged Archuleta to lie at the trial. The district judge abated these habeas proceedings to permit LeBere to exhaust his new claim in the state courts. He then filed a petition for post-conviction relief with the Colorado trial court asserting the Brady claim. The petition was not decided on the merits; post-conviction relief was denied because the Brady claim was part and parcel of his newly discovered evidence claim, which was addressed and decided on direct appeal. Importantly, the Brady issue was not considered to have been procedurally barred because it was not timely raised; it was considered to have been subsumed in the new trial motion and, in effect, decided when the new trial motion was denied. And since it had been decided on direct appeal, under Colorado procedures it could not be revisited in post-conviction proceedings (successive bar). LeBere returned to federal court with the Brady claim. The district judge concluded it was procedurally barred by Colorado’s successive bar rule.

LeBere contended Colorado’s successive bar had no effect on the availability of habeas review of his particular claims. The Tenth Circuit held he was correct.

In his Rule 35(c) post-conviction proceedings, LeBere presented his Brady claim to the state courts. But the post-conviction court did not resolve the Brady claim on the merits. Instead, it declined review under a Colorado rule barring post-conviction review of a claim raised and resolved in a previous proceeding. See Colo. R. Crim. P. 35(c)(3)(VI). Generally, when a state court dismisses a federal claim on a procedural ground, the doctrine of procedural default forecloses federal  review. Coleman v. Thompson, 501 U.S. 722 (1991). The question, then, was whether the application of the state’s successive bar presented a barrier to federal review. The Tenth Circuit concluded it did not.

Cone v. Bell, 556 U.S. 449 (2009) controlled the outcome of this case. In Cone, the Supreme Court decided a state court’s refusal to consider the merits of a claim because the claim was previously determined was not a proper basis for denying federal habeas review. As in Cone, LeBere raised a state-law nondisclosure claim on direct appeal and, based on the same facts, a Brady claim on post-conviction review. And, as in Cone, the post-conviction court applied the state bar on successive claims in declining to reach the merits. If the application of the successive bar in Cone did not affect the availability of federal review, the same should be true for a nearly identical rule here.


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