Lebere v. Abbott, et al, No. 11-1090 (10th Cir. 2013)
Annotate this CaseDefendant-Appellant Kent LeBere was convicted for second-degree murder and second-degree arson. He received a 60-year sentence. He applied for habeas relief, arguing the State relied on perjured testimony and withheld potentially exculpatory evidence material to his defense. The only question presented to the Tenth Circuit on appeal was whether federal courts could consider his claim. After LeBere began serving his sentence and while his direct appeal was pending, Ronnie Archuleta, a key witness against him, recanted his testimony. LeBere promptly moved for a new trial based upon that newly discovered evidence. His new trial motion became a collateral part of his direct appeal and, after a hearing, it was denied. LeBere then brought this habeas petition expressly 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 his "Brady" claim. The petition was not decided on the merits; post-conviction relief was denied because the Brady claim was, sub silento, part of his newly discovered evidence claim, which was addressed and decided on direct appeal. Furthermore, 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. 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 on appeal to the Tenth Circuit that Colorado's successive bar has no effect on the availability of habeas review of his particular claims. The Tenth Circuit concluded LeBere was correct and reversed.
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