Court Opinions: 10th Circuit Court of Appeals Opinions for Sept. 5

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

U.S. v. Henthorn

Harold Henthorn sought a certificate of appealability to appeal the district court’s judgment denying his 28 U.S. Code 2255 motion to vacate his criminal sentence and his supplemental 2255 motion. The 10th Circuit Court of Appeals denied a certificate of appealability and dismissed the matter.

Henthorn was convicted of the first-degree murder of his second wife, Toni Henthorn, who died after falling more than 100 feet from a cliff in Rocky Mountain National Park in 2012. He was sentenced to life in prison with no opportunity for release. Henthorn appealed, arguing the introduction of evidence of prior similar conduct violated Federal Rule of Evidence 404(b). The 10th Circuit affirmed.

In 2019, on the last day before 2255(f)(1)’s one-year statute of limitations expired, Henthorn filed a pro se 2255 motion (original motion) asserting lead defense counsel, Craig Truman, rendered ineffective assistance. Henthorn alleged Truman continually represented he was preparing and would present a strong defense at trial, including expert witnesses, but despite obtaining substantial funds from Henthorn to do so, he never did. Henthorn claimed after the prosecution rested, Truman told him for the first time he wanted to skip presenting a defense because he thought the prosecution hadn’t proven Toni Henthorn’s death had been a murder. 

Henthorn also alleged Truman excluded Henthorn from assisting with and participating in the defense by instructing Henthorn not to speak with him at all during the trial because he was hard of hearing in one ear, and by refusing to ask the U.S. Marshals for a working pen Henthorn could use. Henthorn further alleged after the trial, Truman explained the case had been lost when the district court ruled against Henthorn on the Rule 404(b) issue. 

The district court determined although most of Henthorn’s allegations were unsupported and conclusory and therefore insufficient to support an ineffectiveness claim, some of the allegations warranted a hearing and appointment of counsel.

In 2020, the appointed counsel filed another 2255 motion styled as a supplemental motion, identifying 12 discrete instances of alleged ineffective assistance of trial counsel. The government moved to strike most of the supplemental motion, arguing the district court lacked jurisdiction over 11 of the 12 instances because they didn’t relate back to the original motion and therefore were untimely under 2255(f)(1). The government conceded one instance related back, but argued it lacked merit.

Before ruling on the two 2255 motions and the motion to strike, the district court held a three-day evidentiary hearing. Henthorn presented expert testimony regarding Truman’s performance. The government presented testimony from Truman, who explained why he had made certain decisions.

In an order, the court determined eight of the instances and parts of two others identified in the supplemental motion (untimely categories) didn’t relate back to the original motion and therefore untimely under 2255(f)(1). The court dismissed the supplemental motion as to the untimely categories for lack of jurisdiction. The court determined the remaining instances related back to the original motion.

Turning to the merits, the court found credible Truman’s testimony about the defense team’s extensive trial preparation, the process by which the team and Henthorn decided whether to present any evidence, including Henthorn’s own testimony, and the decision not to present any expert testimony at trial. The court found the assertion in the original motion Truman had told Henthorn “that he had never prepared a defense” and had “sold [Henthorn] down the river” was “incredible and lack[ed] any semblance of merit.” The court then concluded the timely categories weren’t circumstantial evidence of poor preparation, but instead reflected strategic choices.

Based on its findings and conclusions, the district court granted in part and denied in part the government’s motion to strike the supplemental motion, denied the original motion and denied the supplemental motion except for Henthorn’s request for an evidentiary hearing. The district court also denied a certificate of appealability.

The 10th Circuit concluded reasonable jurists wouldn’t debate the correctness of the district court’s ruling that the untimely categories don’t relate back to the original motion. The 10th Circuit denied Henthorn’s application for a certificate of appealability and dismissed the matter.

Carr v. El Paso County Jail, et al.

Heshimo Carr sued the El Paso County Jail and other El Paso County entities and officials under 42 U.S.C. 1983. Carr alleged the appellees violated his Eighth and 14th Amendment rights by failing to adequately protect him from COVID-19 while he was incarcerated at the El Paso County Jail. The district court dismissed Carr’s complaint, concluding he failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act. Exercising jurisdiction under 28 U.S.C. 1291, the 10th Circuit affirmed.

On Feb. 8, 2021, Carr filed a lawsuit in the District of Colorado alleging the jail failed to adequately protect him from COVID-19. The court dismissed his initial complaint without prejudice for failure to establish he had exhausted administrative remedies as required by the Prison Litigation Reform Act. Carr next filed his first amended complaint. The appellees sought dismissal for failure to exhaust.

The district court granted the appellees’ motion to dismiss, finding “defects in the filing of [Mr. Carr’s] formal grievance that . . . constitute [a] failure to exhaust.” The court dismissed Carr’s claims without prejudice.

On appeal, Carr argued he exhausted his administrative remedies because jail officials failed to review his original grievance and inform him it was “not considered [an] emergency” or respond to his grievance within 48 hours. The 10th Circuit disagreed.

According to the opinion, although “the failure to respond to a grievance within the time limits contained in [a jail’s] grievance policy renders an administrative remedy unavailable,” citing the 10th Circuit opinion in  Jernigan v. Stuchell, the El Paso County Jail responded to Carr’s grievance within the time limit contained in its grievance policy. 

The 10th Circuit affirmed the district court’s decision that Carr failed to exhaust his administrative remedies, granted his motion to proceed in forma pauperis in the appeal and reminded him of his obligation to make partial payments until the filing fee has been paid in full.

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