SUPREME COURT, STATE OF COLORADO
NO. 97SA331
June 8, 1998
EUGENE VELARDE,
Petitioner-Appellant,
v.
ARISTEDES ZAVARAS and DONICE NEAL,
Respondent-Appellee.
Appeal from the District Court, Fremont County
Honorable John E. Anderson, III, Judge
EN BANC JUDGMENT AFFIRMED
Eugene Velarde, Pro Se
Cañon City, Colorado
Gale Norton, Attorney General
Martha Phillips Allbright, Chief Deputy Attorney General
Richard A. Westfall, Solicitor General
John Daniel Dailey, Deputy Attorney General
Robert Mark Russel, First Assistant Attorney General
Matthew S. Holman, Assistant Attorney General, Criminal Enforcement Section
Denver, Colorado
Attorneys for Respondent
PER CURIAM
JUSTICE BENDER does not participate.
The petitioner in this habeas corpus proceeding, EugeneVelarde, pro se, asserts that the Colorado habitual criminalstatutory scheme is an unconstitutional bill of attainder. Thedistrict court denied Velarde's petition for writ of habeascorpus without holding a hearing. We affirm the judgment of thedistrict court.
I.
On April 9, 1993, Velarde was convicted of the unlawfuldistribution of a Schedule 1 controlled substance, see §§ 18-18-203, -405, 8B C.R.S. (1992 Supp.), and conspiracy, see §§ 18-18-203, -405, 8B C.R.S. (1992 Supp.). These offensesoccurred on December 9, 1992. He was also adjudged an habitualcriminal pursuant to section 16-13-101(2), 8A C.R.S. (1986),since he had been previously convicted of at least three otherfelonies, and sentenced to imprisonment for his natural life.
He filed the petition for writ of habeas corpus in FremontCounty District Court on June 6, 1997, asserting that theColorado habitual criminal statutes, §§ 16-13-101 to -103, 8AC.R.S. (1986 & 1992 Supp.) (the Act) constituted anunconstitutional bill of attainder. The district court denied thepetition without holding a hearing, concluding "that Colorado'sHabitual Criminal Statute does not violate the provision of theUnited States Constitution dealing with Bills of Attainder." Velarde v. Zavaras , No. 97CV162 (Fremont County Dist. Ct. June23, 1997).
Velarde filed a notice of appeal in the Colorado Court ofAppeals. On September 11, 1997, the court of appeals transferredthe case to this court because we have exclusive jurisdictionover an appeal from a final judgment of a district court in ahabeas corpus case. See § 13-4-102(e), 5 C.R.S. (1997).
As an initial matter, however, this case should not havebeen brought as a petition for habeas corpus. "Generally, acourt will not consider a request for habeas corpus relief unlessthe petitioner has no other forms of relief available." Johnsonv. Gunter , 852 P.2d 1263, 1265 (Colo. 1993). We can, and do,take judicial notice that Velarde's direct appeal of theconvictions pertinent to this case is currently pending in theColorado Court of Appeals. See People v. Velarde , Nos. 97CA0146& 97CA0191. The allegation that the Act is unconstitutionalshould be brought either on direct appeal or in a motion forpostconviction relief. Therefore, habeas relief is unavailable.
Under our previous cases, the habeas court, rather thandenying the petition outright, should have transferred it to theoriginal trial court for purposes of the direct appeal or a Crim.P. 35(c) postconviction motion. Under limited circumstances,however, we have elected to retain appellate jurisdiction in theinterest of judicial economy. See Duran v. Price , 868 P.2d 375,378 (Colo. 1994). In this case, since Velarde's petition forhabeas relief discloses on its face that he is not entitled torelief, remand would be pointless, and we have decided to retainjurisdiction.
II.
The Act has subsequently been amended, but at the time ofVelarde's offenses in December 1992 and at his trial in early1993, section 16-13-101(2), 8A C.R.S. (1986), provided:
(2) Every person convicted in this state of anyfelony, who has been three times previously convicted,upon charges separately brought and tried, and arisingout of separate and distinct episodes, either in thisstate or elsewhere, of a felony . . . shall be adjudgedan habitual criminal and shall be punished byimprisonment in a correctional facility for the term ofhis or her natural life.
Habitual criminal statutes have been challenged on severalconstitutional grounds without success. As we said in People v.Thomas , 189 Colo. 490, 494, 542 P.2d 387, 390 (1975):
Both the United States Supreme Court and theColorado Supreme Court have ruled unequivocably thathabitual criminal statutes are constitutional despitecontentions that they violate constitutional stricturesdealing with double jeopardy, ex post facto laws, crueland unusual punishments, due process, equal protection,and privileges and immunities. Spencer v. Texas , 385U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1964); Oylerv. Boles , 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446(1962); Bernard v. Tinsley , 144 Colo. 244, 355 P.2d1098 (1960); Vigil v. People , 137 Colo. 161, 322 P.2d320 (1958).
Neither our court nor the Supreme Court has specificallyconsidered whether an habitual criminal statute is a bill ofattainder, but other courts have and have consistently ruled thatthey are not. See, e.g. , Byers v. Crouse , 339 F.2d 550, 552(10th Cir. 1964); Peer v. Skeen , 108 F. Supp. 921, 922 (N.D. W.Va. 1952); People v. Israel , 206 P.2d 62, 69 (Cal. Dist. Ct. App.1949); People v. Lawrence , 61 N.E.2d 361, 364 (Ill. 1945); Hamilton v. State ex rel. Van Natta , 323 N.E.2d 659, 660-61 (Ind.Ct. App. 1975), appeal dismissed for want of a substantialfederal question , 424 U.S. 901 (1976).
Article I, Section 10(1) of the United States Constitutionprovides, "No state shall . . . pass any bill ofattainder . . . ." A legislative act that applies to namedindividuals, or members of an easily ascertainable group, andthat imposes punishment upon those individuals without thebenefit of a criminal trial, is a bill of attainder. See UnitedStates v. Lovett , 328 U.S. 303, 315 (1946).
"A bill of attainder is a legislative act which inflictspunishment without a judicial trial. If the punishment be lessthan death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainderinclude bills of pains and penalties." Cummings v. Missouri , 71U.S. (4 Wall.) 277, 323 (1866). For our purposes, this is thekey characteristic of a bill of attainder.
An habitual criminal statute like the Act does not imposepunishment without a trial. The Act creates no new offense, "butinstead defines circumstances where one found guilty of aspecific crime may be more severely penalized because of previouscriminality." People v. Watkins , 684 P.2d 234, 238 n.7 (Colo.1984). It only comes into play after a defendant is convicted ofa specific, new offense (in this case unlawful distribution andconspiracy to commit unlawful distribution of a controlledsubstance), following a judicial trial. Once Velarde was foundguilty of the 1992 offenses, his sentence was enhanced followinga determination that he had previously been convicted of threeother felonies. See § 16-13-101(2), 8A C.R.S. (1986). SinceVelarde's sentence in this case was imposed only after a judicialtrial, as the Act required, the Act is not a bill of attainder. See Lawrence , 61 N.E.2d at 364.
III.
Accordingly, Velarde's petition for habeas corpus is withoutmerit and we affirm the judgment of the district court in denyingrelief.
JUSTICE BENDER does not participate.