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Colorado's Successive Bar Rule Does Not Preclude Habeas Review

By Gabriella Khorasanee, JD | Last updated on

Often times, it's pretty clear which set of procedural rules, state or federal, apply to a case. But, when it comes to habeas review, state and federal procedures do a little dance. The Tenth Circuit recently reviewed a case that brought the interplay of procedural rules to center stage, and cast federal habeas review in the leading role.

Procedural Background

Kent LeBere was convicted of second-degree murder and second-degree arson, and sentenced to a total of 60-years imprisonment. While LeBere's direct appeal was pending, a key prosecution witness recanted his testimony, resulting in LeBere's request for a new trial. The motion for a new trial was subsumed as a collateral part of his direct appeal, and the court denied the motion.

LeBere then filed a petition in federal court for habeas corpus review, raising a Brady claim for the first time. The basis of his Brady claim was that the witness' false testimony was a result of a detective's alleged encouragement.

The district court abated his claims, allowing LeBere to exhaust his Brady claim in state court. The Colorado court found that the Brady claim was based on the same facts as the newly discovered evidence claims (the witness' recant), and was thus subsumed, already decided, and precluded under Colorado's successive bar rule. LeBere renewed his federal habeas claims, and the district court held that the claim was barred by the successive bar statute.

On appeal, LeBere argued that Colorado's successive bar statute did not preclude habeas corpus review, and the Tenth Circuit agreed.

In large part, the Tenth Circuit relied on the Supreme Court's decision in Cone v. Bell, where the Court stated: "[w]hen a state court declines to review the merits of a petitioner's claim on the ground that it has done so already, it creates no bar to federal habeas review." Reversing and remanding the district court's opinion, the Tenth Circuit found that "[t]he facts in Cone are on all fours with this case," and held that LeBere's habeas review was not precluded by Colorado's successive bar statute.


The Tenth Circuit has joined other sister circuits in its conclusion that a state's refusal to decide the merits of a claim because it was previously decided, does not preclude federal habeas corpus review, including the Second Circuit, Fifth Circuit and Seventh Circuit. A state's successive bar statute will not prevent defendants from having their day in federal court.

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