Gladney v. Copenhaven , 508 F. App'x 717 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
January 23, 2013
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
WILLIAM L. GLADNEY
Petitioner-Appellant,
v. No. 12-1367
(D.C. No. 1:11-CV-02745-LTB)
MR. COPENHAVEN, Warden; THE (D. Colo.)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Appellant William Gladney, currently in the custody of the United States Bureau
of Prisons, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking
to challenge a first-degree murder conviction he received in the State of Colorado. The
district court denied Gladney’s petition, concluding that Gladney’s claims were
procedurally barred. Gladney now seeks a certificate of appealability (COA) in order to
challenge the district court’s dismissal of his habeas petition. Because Gladney has failed
to satisfy the standards for the issuance of a COA, we deny his request and dismiss the
*
This order is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel.
matter. We also deny his request to proceed in forma pauperis on appeal.
I
In 2004, Gladney, who was involved in dealing crack cocaine out of a motel in
Adams County, Colorado, shot and killed one of his customers, an individual named
Marlow Earl Johnson. Gladney’s criminal activities resulted in both federal and state
prosecutions.
In February 2007, a federal jury in the District of Colorado convicted Gladney of
violating the Racketeer Influenced and Corrupt Organizations Act (RICO), conspiracy to
distribute crack cocaine, and using a firearm during and in relation to a drug-trafficking
crime. As part of its verdict, the federal jury specifically found that Gladney committed
seven acts of racketeering, one of which was the murder of Johnson. Gladney was
sentenced in connection with those convictions to a term of imprisonment of life plus ten
years. See United States v. Hutchinson, 573 F.3d 1011, 1032-37 (10th Cir. 2009)
(affirming Gladney’s convictions).
Gladney was also charged in Adams County District Court with the first-degree
murder of Johnson. In January 2008, Gladney was convicted by a jury of that charge and
sentenced to a term of life imprisonment without the possibility of parole, to run
consecutively to Gladney’s federal sentence. The Colorado Court of Appeals affirmed
Gladney’s conviction on direct appeal. People v. Gladney, 250 P.3d 762, 770 (Colo.
App. 2010). The Colorado Supreme Court subsequently denied Gladney’s petition for
writ of certiorari.
2
Gladney initiated these federal habeas proceedings on October 21, 2011. Gladney
subsequently filed a pro se application for writ of habeas corpus pursuant to 28 U.S.C. §
2254, and two amended applications. Gladney’s second and final amended application
asserted two claims for relief: (1) that his conviction for first-degree murder in Colorado
state court violated the Double Jeopardy Clause; and (2) that the state trial court violated
his due process rights by admitting evidence of his involvement in drug dealing as res
gestae.
Respondents filed a pre-answer response asserting that the two claims asserted by
Gladney were unexhausted and procedurally barred for purposes of federal habeas
review. The district court agreed with respondents and issued an order of dismissal on
August 27, 2012. The district court also ordered that no COA would issue because, in its
view, Gladney could not make a substantial showing of the denial of a constitutional
right.
Gladney filed a timely notice of appeal, and has now submitted to this court a
combined opening brief and application for COA.
II
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). In other words, a state prisoner such as Gladney may appeal from the denial of
federal habeas relief under 28 U.S.C. § 2254 only if the district court or this court first
issues a COA. 28 U.S.C. § 2253(c)(1)(A). Where, as here, a district court denies a
habeas petition on procedural grounds, a COA will be issued only when the petitioner
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shows 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.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Turning first to Gladney’s double jeopardy claim, we conclude that he cannot
make the first of the requisite showings for issuance of a COA. Gladney’s double
jeopardy claim rests on the general notion that it was improper for the State of Colorado
to prosecute him for first-degree murder after he was convicted in federal court of a
related RICO offense. But under the “dual sovereignty doctrine,” the Double Jeopardy
Clause serves as “no bar to serial prosecution and punishment undertaken by separate
sovereign entities,” United States v. Barrett, 496 F.3d 1079, 1118 (10th Cir. 2007)
(internal quotation marks omitted). And Gladney’s case represents the “classic
application of the dual sovereignty doctrine,” i.e., “successive prosecutions by a state and
the federal government.” Id. (internal quotation marks omitted). To be sure, we
recognize that Gladney’s double jeopardy claim, as framed in his direct appeal, was based
primarily, if not exclusively, on Colo. Rev. Stat. § 18-1-303. But as the Colorado Court
of Appeals has noted, § 18-1-303, titled “Second trial barred by prosecution in another
jurisdiction,” provides “greater protection than the Double Jeopardy Clause [of the United
States Constitution] by negating the dual sovereignty doctrine.” People v. Sandreschi,
849 P.2d 873, 875 (Colo. App. 1992). Thus, a violation of § 18-1-303 — and we note
that the Colorado Court of Appeals concluded that no such violation occurred in
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Gladney’s case — would not give rise to a cognizable claim of the violation of a
constitutional right under 28 U.S.C. § 2254(a).1 For these reasons, we conclude that
reasonable jurists could not debate the fact that Gladney has failed to allege a cognizable
violation of the Double Jeopardy Clause of the United States Constitution.
That leaves Gladney’s claim that the state district court violated his due process
rights by admitting evidence that he was involved in drug dealing. After reviewing the
record on appeal, we conclude that reasonable jurists would not find it debatable whether
the district court was correct in dismissing this claim as procedurally barred. As the
district court noted, Gladney failed to present this constitutional claim to either the
Colorado Court of Appeals or the Colorado Supreme Court. And, as the district court
noted, were Gladney to attempt to raise that claim now in the Colorado state courts, the
claim would be deemed procedurally barred due to his failure to assert it on direct appeal.
See Colo. R. Crim. P. 35(c)(3)(VII) (“The court shall deny any claim that could have
been presented in an appeal previously brought”). Thus, Gladney’s due process claim is
subject in federal court to an anticipatory procedural bar, see Moore v. Schoeman, 288
F.3d 1231, 1233 n.3 (10th Cir. 2002), and, as the district court noted, Gladney cannot
show either “cause and prejudice or a fundamental miscarriage of justice” to overcome
1
Section 2254(a) provides:
The Supreme Court, a Justice thereof, a circuit judge, or a district court
shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.
28 U.S.C. § 2254(a).
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this procedural bar to habeas review, English v. Cody, 146 F.3d 1257, 1259 (10th Cir.
1998).
The application for COA is DENIED and this matter is DISMISSED. Gladney’s
motion to proceed in forma pauperis on appeal is DENIED.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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