Petition for Writ of Certiorari — Matthew Manuel Barnett, Petitioner v. Colorado

621

Supreme Court, U.S.

FILED

IN THE

NOV - 2 2021

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

MATTHEW MANUEL BARNETT— PETITIONER

(Your Name)

vs.

THE PEOPLE OF THE STATE OF COLORADO— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

Supreme Court, State of Colorado Case No. 21SC30

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Matthew Manuel Barnett DOC#184882

(Your Name)

Delta Correctional Center 11363 Lockhart Rd.

(Address)

Delta, CO, 81416

(City, State, Zip Code)

970-874-7614

(Phone Number)

QUESTION(S) PRESENTED

In this case of first impression, Colorado Supreme Court denied certiorari affirmed a

conviction upheld by the Court of Appeals stating that an employee of Comcor Inc. a

private corporation was a “public servant” in this prosecution for attempting to

influence a public servant in violation of Colorado Revised Statues 18-8-306(2016)?

I pray to you ladies and gentlemen of the US Supreme Court to grant this Writ of

Certiorari..

LIST OF PARTIES

[X ] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

TABLE OF CONTENTS

OPINION

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

4, 5

REASONS FOR GRANTING THE WRIT

6-10

CONCLUSION

12

INDEX TO APPENDICES

APPENDIX A

Page 11

APPENDIX B

Page 11

TABLE OF AUTHORITIES CITED

CASES

Blum v Yaretsky, 457 U.S.

991, 102 S. Ct. 2777, 73

L.E.d.2d 534(1982)

Colorado Association of

Public Employees v. Board

of Regents of University of

Colorado, 804 P.2d 138

(1991)

Colorado General

Assembly v Lamm, 700

P.2.d 508(Colo. 1985)

Lucero v. Climax

Molybdenum Co., 732

P.2d 642 (Colo. 1987)

People v. Barnett, 2020

COA 167

People v. Rediger, 416

P.3d 893 (Colo.2018)

PAGE NUMBER

9

7

7

7

5

8

Rendell-Baker v. Kohn,

457 U.S. 830, 102 S. Ct.

2764, 73 L.Ed.2d 418

(1982)

9-10

Shipley v. People, 45 P.3d

1277 (Colo. 2002)

7

State v. Mason, 355 N.J.

Super. 296, 810 A.2d 88

(NJ Sup. Ct. App. Div.,

2002)

Richardson v. McKnight, 521

U.S. 399, 401, 117 S. Ct. 2100,

2102, 138 L. Ed. 2d 540, 545,

1997 U.S. LEXIS 3866

9

9

fj

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

to

The opinion of the United States court of appeals appears at Appendix,

the petition and is

or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix,

the petition and is

or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[X] For cases from state courts:

The opinion of the' highest state court to review the merits appears at

Appendix A

to the petition and is

[X ] reported at Barnett v. People. 2021 Colo. LEXIS 708; or,

[ ] has been designated for publication but is not yet reported; or,

[X] and is unpublished.

The opinion of the Colorado Appeals___________________________ court

appears at Appendix B to the petition and is

[X ] reported at People v. Barnett. 2020 Colo. Ann. LEXIS 2013 ; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1

to

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was________________________ .

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

and a copy of the

Appeals on the following date:_____________

order denying rehearing appears at Appendix.

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date)

to and including_

(date) on

in Application No.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(f).

[X] For cases from state courts:

The date on which the highest state court decided my case was 16th Day of

August. A copy of that decision appears at Appendix A .

[ ] A timely petition for rehearing was thereafter denied on the following date:

_______________________ , and a copy of the order denying rehearing

appears at Appendix.

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including.

(date) on.

(date) in

Application No._

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a)

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED:

PAGE(s)

7

6

6

6

6

5-7

5-7

,4-8

8

,4

8

C.R.S. § 2-4-101 (2017)..........

C.R.S. § 7-20-102 (1986)........

C.R.S. §7-23-106 (1990 Supp)

C.R.S. § 7-122-101 (2017)......

C.R.S. § 17-27-101 (1983)......

C.R.S. § 18-l-901(3)(i) (2017)..

C.R.S. § 18-l-901(3)(o) (2017)

C.R.S. § 18-8-306 (2017)........

C.R.S. § 18-9-110 (2017)........

C.R.S. § 18-5-102(l)(e) (2017..

NJ ST 2C:27-l(g) (2002)..........

3

STATEMENT OF THE CASE

A. Procedural history in the trial court:

I Matthew Barnett was charged with attempt to influence a public servant

Colo. Rev. Stat. § 18-8-306 (F4) and forgery (Colo. Rev. Stat. § 18-5-102(1 )(e)

(F5). After trial, a jury found me guilty of attempting to influence a public servant

and deadlocked on the forgery charge which was dismissed before sentencing.

I have maintained my innocence the entire time. After the prosecution

rested I moved for acquittal based on the fact that the Government failed to supply

evidence to support the finding that Comcor, Inc. was a government entity. [TR,

4/30/19, p200:12-16]. The court denied the motion. [TR, 4/30/19, p202:14-25].

B. Summary of relevant evidence.

Robert Koski, an investigator for the district attorney’s office, was asked to

investigate Barnett’s GPS tracking monitor April 2017. [TR, 4/30/19, pp. 138:23140:2, p. 141:2-4] He learned that it had been turned off on December 23, 2016

[TR, 4/30/19, p. 140:3-5] One of Barnett’s bond conditions was that he was to be

on GPS monitoring. [TR, 4/30/19, p. 140:22-25]

Koski was present at a court hearing on December 23, 2016, on Barnett’s

case. [TR, 2/30/19, p. 141:5-22] No modificartion was made in the bond conditions

at the December 23 hearing. [TR, 4/30/19, p. 142:17-22

Comcor gave a document reflecting amended bond conditions to Koski [TR,

4/30/19, pp 143:19-145:21, EX (trial), p. 5 (Exh. 1)] The document referenced

Judge David Shakes who was the judge to whom Barnett’s case had been

assigned. [TR 4/30/19 p. 146:3-6]

Andrey Williams, the EMS supervisor at Comcor was monitoring GPS

tracking devices on December 23, 2016 [TR, 4/30/19, pp. 158:7-159:19] Barnett

was not a client of Williams, but Barnett’s case worker was off from work that day,

so Williams handled Barnett’s case. [TR, 4/30/19, pp. 159:233-160:1]

Williams explained that if a client disconnected, or self-terminated, a

monitor, Comcor would receive an alert and tell the court. [TR, 4/30/19, pp. 160:8161:8] “When someone is terminated [from monitoring], they come in with

documentation from the court saying their sentence or what you has been - their

obligation was completed, and then we take the monitor off them ourselves.” [TR,

4/30/19, p. 160:17-21]

According to Williams, Barnett came to Comcor, with documentation

indicating that he had been released by the court. [TR, 4/30/19, pp. 162:2-163:1];

EX (trial), p. 5(Exh.1)] Exhibit was given to Williams. [TR, 4/30/19, pp. 162:18163:1]

A couple of weeks later, someone from the district attorney’s office wanted

information from Williams. [TR, 4/30/19, pp. 166:25-167:5] He was also contacted

by Judge Shakes’ clerk who asked why Barnett was off GPS monitoring. [TR,

4/30/19, p. 162:8 2-6] She asked Williams to e-mail the document presented to

Comcor. [TR, 4/30/19, pp. 168:22-24]

4

Gwen Prater, a court clerk assigned to Judge Shakes, said Barnett was on

GPS tracking as a condition of bond that this condition was still being monitored.

[TR, 4/30/19, p. 181:14-17] Comcor said that he was terminated on December 23,

2016. [TR, 4/30/19, pp. 181:21-182:1] The Comcor representative told Prater that

Comcor terminated GPS monitoring because Barnett came in with documentation

which said it was terminated. [TR, 4/30/19, p.182:10-14] Comcor provided acopy

of the document which it was given to discontinue GPS monitoring. [TR, 4/30/19,

p.183:14-20; EX (trial) p. 5 Exh. 1)]

Prater said that Exhibit 1 indicated that Judge Shakes authorized

discontinued GPS monitoring, but Prater knew that the judge had not issued such

an order. [TR, 4/30/19, pp. 183:17-184:8] She added that the exhibit was not even

the type of order usually issued to end monitoring. [TR, 4/30/19, p. 184:9-12]

Sheri Porter, another division clerk, testified that she was aware that Barnett

was to be monitored through GPS, and that she was unaware of any order from

the judge terminating the GPS monitoring. [TR, 4/30/19, pp. 189:10-190:11]

Judge David Shakes was familiar with Barnett. [TR, 4/30/19, pp. 194:24195:15] Barnett was ordered on GPS monitoring as a condition of bond; the court

did not terminate that condition. [TR, 4/30/19, pp. 195:23-196:9] In April 2017,

Judge Shakes learned that GPS monitoring had terminated. [TR, 4/30/19,

p. 195:10-14] Exhibit 1 was not created by Judge Shakes or by anyone at his

direction. [TR, 4/30/19, p. 195:18-24]

C. The panel’s decision:

The appellate panel determined that based on the language of C.R.S § 188-306, an employee of an organization such as Comcor is a “public servant”

performing a government function in this type of situation. People v. Barnett, 2020

COA 167,

12-19.

The division reached this conclusion by acknowledging that the definition of

“public servant” was “any officer or employee of the government, whether elected

or appointed, any person participating as an advisor, consultant, process server, or

otherwise in performing a governmental function.’’(emphasis in original) Barnett,

2020 COA 167, U 12. Comcor employees were not officers or employees of the

government. Barnett, 2020 COA 167, If 13.

However, the definition of “government” included any corporation or other

entity established by law to carry out any governmental function. ” (emphasis in

original) Barnett, 2020 COA 167, If 14. Since monitoring those on pretrial services

GPS monitoring was a governmental function, in this case Comcor was a

corporation or other entity performing a governmental function. Barnett, 2020 COA

167, If 15.

Because the panel erred in its statutory construction of C.R.S § 18-1901 (3)(i) (definition of “public servant”) and C.R.S. § 18-1-901 (3)(o) (definition of

“government”) I seek review of the Court of Appeals’ decision by the Supreme

Court of the United States of America.

5

REASONS FOR GRANTING THE PETITION

In this case of first impression, the Court of Appeals incorrectly held that an

employee of Comcor, a private corporation, was a “public servant” in this

prosecution for attempting to influence a public servant in violation of C.R.S.

§ 18-8-306.

A. The panel reached its decision by ignoring the substantial

difference between a public corporation and a private corporation.

The division reached its conclusion that Comcor employees were “public

servant” by looking at the definition of “public servant” under C.R.S. §18-1901 (3)(i), admitting that a Comcor employee was not a government “officer or

employee” but that, based upon the second part of the definition, a Comcor could

be considered a public servant because Comcor was a “corporation or other entity

established by law to carry out a government function.”

The problem with this analysis is that Comcor, more formally known as

Community Corrections of the Pikes Peak Region, Inc.” [EX (motions hearing),

pp3-4], was a not-for-profit corporation established in October 1983 under the

Colorado non-profit corporation statute by private individuals “to serve as a

community correctional facility and program for the 4th Judicial District.”/d.

While the corporation was going to contract to provide services and

programs to the Fourth Judicial District and would tailor those services and

programs to meet the criteria required under C.R.S § 17-27-101 et seq., the

corporation was not “established by law.” Community Corrections of the Pikes

Peak Region, Inc. was no more a corporation established by law than any other

privately-established non-profit corporation (such as the Laboratory to combat

Human Trafficking, Energy Outreach Colorado, Volunteers for Outdoor Colorado,

to name but three examples) set up through the office of the Secretary of State

pursuant to C.R.S. § 7-122-101, et seq. C.R.S. § 7-122-101 sets out the

framework for private incorporators to set up a corporation but the statute does not

establish the corporation per se.

The distinction between public and private corporations is an important one

and has been recognized by the Colorado Supreme Court.

“Private nonprofit corporations are corporations formed by private

individuals for a public purpose in which, no part of the income or profit of

which is distributable to its members, directors or officers. Colo. Rev. Stat. §

7-20-102(10) (1986). Ultimate control of the corporation is vested in the

members or the directors through their power to vote. Colo. Rev. Stat. § 723-106(3) (1990). In contrast, public corporations are created as

subdivisions of the state as an expedient device to carry out the functions of

government.”

6

Colorado Ass'n of Public Employees v. Board of Regents of University of

Colorado, 804 P.2d 138, 139, 1990 Colo. LEXIS 899, *1,14 BTR 1717 (Colo.

December 24, 1990)

Comcor was incorporated as a private corporation. It was not established by law

(i.e., legislatively) in the same way a public corporation might be established. The

division misread C.R.S. § 18-1-901 (3)(o) to include private, not-for-profit

corporations in the definition of corporations established by law.

B. Application of the rules of statutory construction demonstrates

that C.R.S. § 18-8-306 does not apply to employees of private

businesses.

In addition to use of the modifier “established by law” following the word “

corporation,” application of the rules of statutory construction leads to the

conclusion that C.R.S § 18-1-901 (3)(i) does not apply to privately-owned

corporations.

“Words and phrases should be read in context and construed according to

the rules of grammar and common usage.” C.R.S. § 2-4-101. The phrase

“corporation established by law to carry out any governmental function” follows the

words, “United State, state, county, municipal or other political unit.” These are

levels of government and their use modify the tern “corporation or other entity.”

The statute which I was charged with violating - attempt to influence a

public servant- is housed in Article 8 of Title 18. Article 8 is entitled, “offenses Governmental Operations.” And article 5 which includes “Offenses Involving

Fraud”).

“When determining the meaning of a particular statute, it is necessary to

consider the relationship of that statute to the other legislative provisions

concerning the same subject matter, especially when the statute in question is part

of a comprehensive legislative program. Colorado General Assembly v Lamm, 700

P.2d 508, 518 (Colo. 1985).” Lucero v. Climax Molybdenum Co., 732 P.2d 642,

645 (Colo. 1987). The provision of the article which covers offenses involving

governmental operations should only apply to governmental entities, not private

corporations.

The word “corporation” must be read along with the rest of C.R.S. § 18-1901 (3)(i) which describes governmental entities. “When a statute is clearly part of

a comprehensive regulatory scheme, the scheme should be construed to give

consistent, harmonious, and sensible effect to all its parts. [Citations omitted]”

Shipley v. People, 45 P.3d 1277, 1278 (Colo. 2002)

Extending the scope of C.R.S. § 18-8-306 to circumstances and situations

in which someone is alleged to have deceived a private entity - even if the

expansion is limited only to those private corporation who are doing business with

7

or for, the state - opens the door to prosecutions in cases which were probably

never contemplated by the drafters of C.R.S. § 18-8-306.

If the General Assembly wishes to extend the criminal prohibition against

attempting to influence public servants to the private individuals working for private

entities performing services for which the state or local government has

contracted, the legislature is free to do so. But that has not been done. And it was

not the role of the Court of Appeals to blur any further the lines between public and

private actors.

Finally, People v Rediger, 416 P.3d 893 (Colo. 2018), is instructive. In

Rediger, the question was whether an alleged victim was a “public employee”

under C.R.S. § 18-9-110(1). The Supreme Court noted that the statue did not

define “public employee” but there was a definition for “public servant” which was

deemed similar term and as such, instructive. Rediger, 416 P.3d at 899.

The Rediger Court held that a “public employee” means a person who

works in the service of a governmental entity under an express or implied contract

of hire, under which the governmental entity has the right to control the details of

the person’s work performance.” Rediger, 416 P.3d at 899.

The Court went on to note, “We are not persuade otherwise by the People’s

assertion that the General Assembly intended the phrase ‘public employee’ to

capture any employee who serves a governmental function, whether or not a

governmental entity actually employs that person.” Id.

C. Other Jurisdictions have rejected the notion that employees of

private corporations or entities are public servants.

New Jersey appellate courts have limited the term “public servant” to agents

of governmental entities and have excluded employees of private corporations

even when they have been performing governmental functions.

NJ ST 2C: contains the definitions used in the New Jersey Code of Criminal

Justice. NJ ST 2C:27-1(g) defines “public servant” as “any officer or employee of

government, including legislators and judges, and any person participating as a

juror, advisor, consultant, or otherwise, in performing a governmental function, but

the term does not include witnesses.” The New Jersey definition is similar to the

Colorado definition.

In State v Mason, 355 N.J. Super. 296, 810 A.2d 88 (NJ Sup. Ct. App. Div.,

2002), the court held that the term “public servant”, as used in the criminal offense

of official misconduct, did not include employees of a private, non-profit

corporation providing education services. The court acknowledged that the

employees of private corporations were providing education services is a

governmental function but rejected the argument that their doing so turned them

into public servant.

To be sure, the options available to local public schools and to the parents

of our learning disabled students to secure a free and appropriate public

education are limited; facilities like Archway fill an important role in providing

8

an education for a population that might otherwise be ill-served through our

traditional public schools. But the services that those private educational

facilities provide, albeit at public expense, are limited by contract and

governed by the terms of those contracts. Moreover, the private facilities of

this type are also subject to oversight and regulation by the Department of

Education. Nonetheless, they remain private entities providing a service for

a fee and governed by contracts subject to annual renewal the entities that

perform these services are private organizations and not governmental

agencies or their functional equivalent.

State v. Mason, 810 A.2d 88, 91

The State of New Jersey acknowledged that there were some prior cases in

which private actors were considered public officials based on the nature of the

roles performed but drew a line between private actors performing regulatory

functions of enforcing regulation in the name of the state, and those who are

performing an act or service limited by contract.

“We note as well the analogous reasoning of our state and federal courts in

decisions addressing state action. As the Supreme Court of the United

States has held, "[ajcts of such private contractors do not become acts of

the government by reason of their significant or even total engagement in

performing public contracts." Rendell-Baker v. Kohn, 457 U.S. 830, 841,

102 S. Ct. 2764, 2771, 73 L. Ed. 2d 418, 427 (1982).

Mason, 355 N.J. Sup. Ct. at 304, 810 A.2d at 92.

Rendell-Baker is also instructive. Former teachers and vocational

counselor at a non-profit, privately-operated school for maladjusted high school

students brought a civil rights suit against the school for violation of their

constitutional rights. Citing to Blum v Yaretsky, 457 U.S. 991, 102 S. Ct. 2777, 73

L.Ed.2d 534 (1982), in which the Supreme Court held that a privately-owned

nursing home did not become a state actor because the derived substantial

amount of its revenue from Medicaid, the Court stated:

“The School, like nursing homes, is not fundamentally different from many

private corporations whose business depends primarily on the contracts to

build roads, bridges, dams, ships, or submarines for the government. Acts

of such private contractors do not become acts of the government in

performing public contracts.”

Rendell- Baker, 457 U.S. at 840-841.

"Private nonprofit corporations are corporations formed by private

individuals for a public purpose .... In contrast, public corporations are created as

subdivisions of the state as an expedient device to carry out the functions of

government."

Va. Office forProt. & Advocacy v. Stewart, 563 U.S. 247, 273, 131 S. Ct. 1632

9

179 L. Ed. 2d 675 (2011) (Roberts, C.J., dissenting) ("[P]rivate entities are different

from public ones: They are private.");

While Community Corrections of the Pikes Peak Region, Inc., also known

as Comcor, may derive all its income from its contract with the Fourth Judicial

District, that fact does not convert Comcor into a government entity.

I feel emphasis being private community corrections organizations which I

can only assume are like private prisons citing a following 42 U.S.C.S. § 1983

claim: On certiorari, the Supreme Court affirmed. In an opinion by Breyer, J.,

joined by Stevens, O'Connor, Souter, and Ginsburg, JJ., it was held that the two

guards in question were not entitled to qualified immunity from the prisoner's 1983

suit, because--in the context of the case at hand, in which a private firm, which

was systematically organized to assume the major lengthy administrative task of

managing an institution with limited direct supervision by the government,

undertook that task for profit and potentially in competition with other firms--an

examination of history and of the purposes underlying government-employee

immunity revealed nothing special enough about the job itself that would warrant

providing these private prison guards with a governmental immunity.

Richardson v. McKnight, 521 U.S. 399, 401, 117 S. Ct. 2100, 2102, 138 L.

Ed. 2d 540, 545, 1997 U.S. LEXIS 3866, *1,70 Empl. Prac. Dec. (CCH) P44,784,

97 Cal. Daily Op. Service 4813, 97 Daily Journal DAR 7889, 11 Fla. L. Weekly

Fed. S 64 (U.S. June 23, 1997)

Mr. Williams instructed me on Thursday December 22 to bring my monitor

in on the following day Friday the 23rd of December he said there was an order in

his system as he looked across the desk at me from behind his computer monitor.

He omitted this statement from his testimony and continued to perpetrate the

fraudulent story. I was sent to Comcor as a condition added to my bond conditions

so in fact Mr. Williams was essentially an extension of my agreement with Dave

Woods a “bail bondsman” in Colorado Springs. ROGER W. TITUS, UNITED

STATES DISTRICT JUDGE opined "Moreover, bail bondsmen are not considered

state actors unless they are working in concert with law enforcement officers.”

Collins, 790 A.2d at 664-65; Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S. Ct.

2764, 73 L. Ed. 2d 418(1982).

Roberts v. United States, 399 F. Supp. 2d 650, 655, 2005 U.S. Dist. LEXIS

27599, *14 (D. Md. October 31,2005)

10

APPENDIX

The petitioner respectfully submits the following as an appendix to this petition:

Appendix A: Slip opinion is case captioned: The People of the State of Colorado,

Plaintiff-Appellee, v Matthew Manuel Barnett, Defendant-Appellant, Colorado

Supreme Court Case No. 21SC30 Judgment affirmed August 16, 2016 decision

without published opinion Petition for Writ of Certiorari denied. En Banc.

Barnett v. People, 2021 Colo. LEXIS 708, *1, 2021 WL 3713862 (Colo. August 16,

2021)

Appendix B: Slip opinion is case captioned: The People of the State of Colorado,

Plaintiff-Appellee, v Matthew Manuel Barnett, Defendant-Appellant, Colorado

Court of Appeals Case No. 19CA1056 published opinion dated December 3, 2020.

People v. Barnett, 2020 Colo. App. LEXIS 2013, *1,490 P.3d 1000, 1001, 2020

WL 7062695 (Colo. Ct. App. December 3, 2020)

li

CONCLUSION

For the forgoing reasons, the Supreme Court should grant the petition for a Writ of

Certiorari and review the decision of the Supreme Court of Colorado.

Respectfully submitted,

/Sot/mcf

So r/'ie f r~

Date: 2nd Day of November 2021

12