F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 30 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD SCHAUERMAN,
Petitioner - Appellant,
v. No. 02-1090
D.C. No. 00-S-1774
GARY NEET, Warden; ATTORNEY (D. Colorado)
GENERAL FOR THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and HARTZ ,
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Richard Schauerman, a Colorado state inmate appearing pro se ,
seeks a certificate of appealability (COA) to appeal the district court’s denial of
his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C.
§ 2253(c)(1)(A) (providing that no appeal may be taken from the denial of
a § 2254 habeas petition unless the petitioner first obtains a COA). Because
petitioner has not demonstrated “a substantial showing of the denial of
a constitutional right,” this court denies his request and dismisses this appeal.
Id. § 2253(c)(2).
Petitioner pled guilty in February 1989 to murder in the second degree,
Colo. Rev. Stat. § 18-3-103(1) (1989), and to having committed a crime of
violence subject to mandatory sentencing, Colo. Rev. Stat. § 16-11-309 (1989).
Pursuant to the enhanced sentencing requirements of § 16-11-309, petitioner was
sentenced to forty-eight years’ imprisonment–twice the maximum sentence for a
second-degree murder conviction–plus a period of parole. Petitioner filed a
motion for reconsideration of sentence, which was denied by the trial court. He
did not file a direct appeal.
In 1992, petitioner filed a motion in state court to correct sentence, which
was denied. In October 1998, petitioner filed a motion seeking state
post-conviction relief under Colorado Rule of Criminal Procedure 35(c). The
motion was dismissed as time-barred, because petitioner filed it six years after the
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time for filing such motions had elapsed. The Colorado Court of Appeals affirmed
the denial, finding no justifiable excuse for his failure to file a timely Rule 35(c)
motion. The Colorado Supreme Court denied certiorari review. Petitioner then
filed his § 2254 petition.
In his § 2254 petition, petitioner claims (1) his constitutional rights to a jury
trial and to due process were violated by the imposition of an enhanced sentence
for the commission of a violent crime under § 16-11-309, citing Apprendi v. New
Jersey , 530 U.S. 466, 490 (2000) (holding that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty of a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.”); (2) his plea was not knowing and voluntary; and (3) based on Apprendi ,
he received ineffective assistance of counsel at his plea with respect to the
sentencing enhancement.
Adopting the magistrate judge’s report and recommendation, the district
court dismissed the petition. It dismissed petitioner’s second claim for failure to
exhaust his state court remedies because he failed to raise it in a timely Rule 35(c)
motion. It dismissed the first and third claims, both based on Apprendi , because
petitioner pled guilty to having committed a crime of violence under § 16-11-309,
and there was no fact separate from the elements of the crime that increased his
penalty. Thus, the district court ruled petitioner had failed to state a constitutional
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claim under Apprendi . Furthermore, petitioner was advised he was facing a
possible forty-eight year sentence in conjunction with his guilty plea and did not
allege any facts suggesting he received ineffective assistance of counsel.
Since the date of the district court’s order, this court has held that Apprendi
is not retroactively applicable to initial habeas corpus petitions. United States v.
Mora , 293 F.3d 1213, 1219 (10th Cir.), cert. denied , 2002 WL 31013013 (U.S.
Oct. 15, 2002) (No. 02-6125). In light of Mora , petitioner’s first and third claims,
based on Apprendi , are foreclosed. Further, the district court correctly ruled that
petitioner’s second claim was procedurally barred.
Petitioner’s application for COA is DENIED and the appeal is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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