The opinion of the court was delivered by: Judge Wiley Y. Daniel
ORDER DENYING 28 U.S.C. § 2254 APPLICATION
Applicant Sylvester Davis is a prisoner in the custody of the Colorado Department of Corrections at the Sterling, Colorado, correctional facility. Mr. Davis has filed pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994 & Supp. 2005) challenging his Colorado state conviction and sentence. In an order filed on October 18, 2004, I directed the respondents to file an answer to the habeas corpus application. On November 16, 2004, the respondents filed their answer. On December 13, 2004, Mr. Davis filed a response to the respondents' answer. On November 22, 2005, Mr. Davis filed a letter asking to strike his unexhausted third claim, to allow him to proceed with his first and second claims, and to allow him to resubmit his third claim after exhaustion.
I must construe liberally the application, the response to the respondents' answer, and the request to strike the unexhausted third claim because Mr. Davis is representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I should not be the pro se litigant's advocate. See Hall, 935 F.2d at 1110. After reviewing the entire file, I find that an evidentiary hearing is not necessary. For the reasons stated below, the November 22, 2005, request to strike the unexhausted third claim will be denied as moot. Also for the reasons stated below, the habeas corpus application will be denied.
I. Factual and Procedural Background
Mr. Davis was charged in Denver District Court in case nos. 97CR2453, 97CR2455, 97CR2456, 97CR2457, and 97CR2458 with committing five Denver robberies, each committed at gunpoint at 7-Eleven convenience stores between May 10 and 23, 1997. In each robbery, the suspect wore a mask over his face, produced a gun, and demanded a $500 money order. A jury in the Denver cases, which were consolidated for trial, convicted Mr. Davis on all charged counts of aggravated robbery. On February 27, 1998, he received an aggregated sentence of thirty years of imprisonment. The convictions were affirmed on direct appeal. See People v. Davis, No 98CA0904 (Colo. Ct. App. Apr. 20, 2000) (not selected for publication). The Colorado Supreme Court denied certiorari review.
In August 2000, Mr. Davis filed pro se a motion for a new trial, alleging that he was denied a fair appeal because his trial attorney did not turn over all the documents in his file to his appellate attorney and because the appellate attorney did not raise ineffective assistance of counsel. In September 2000, the trial court denied the motion. Mr. Davis appealed.
On October 31, 2000, while the appeal was pending, Mr. Davis filed a "Motion for Leave to Amend Original Post Conviction Relief 35(c) Motion" alleging newly discovered evidence. On November 21, 2000, he dismissed his pending appeal.
In March 2001, Mr. Davis filed pro se a motion for post-conviction relief, alleging ineffective assistance of counsel. He subsequently amended the motion to allege that he should have been given a new trial based on newly discovered evidence. Two different post-conviction attorneys were appointed for Mr. Davis. Ultimately, he waived post-conviction counsel. On September 9 and 10, 2002, the trial court held an evidentiary hearing on the post-conviction motion. Mr. Davis presented testimony from two police officers and his former trial attorney, Stephen Flavin, and played a surveillance videotape, which he contends constituted newly discovered evidence. The court denied the motion.
The Colorado Court of Appeals affirmed the trial court's order denying post-conviction relief. See People v. Davis, No. 02CA1170 (Colo. Ct. App. Jan. 29, 2004) (not selected for publication). On June 21, 2004, the Colorado Supreme Court denied certiorari review. On August 23, 2004, Mr. Davis initiated the instant action. He asserts three claims, i.e., (1) that his trial attorney rendered ineffective assistance of counsel by withholding evidence (a) of a videotape that would show the eyewitness committed perjury, and (b) of a letter from a person who confessed to the crime; (2) that he should be granted a new trial due to newly discovered evidence; and (3) that the trial court erred by imposing consecutive sentences. Respondents concede that the instant action appears to be filed in a timely manner. See 28 U.S.C. § 2244(d) (Supp. 2005).
II. Exhaustion of State Remedies
Respondents also concede that Mr. Davis appears to have exhausted claims one and two in his post-conviction proceedings. They contend, however, and Mr. Davis admits, that he has not exhausted claim three. Mr. Davis has asked me to strike his unexhausted third claim, to allow him to proceed with his first and second claims, and to allow him to resubmit his third claim after exhaustion. Mr. Davis does not provide any reason for why he failed to exhaust his third claim before seeking federal court intervention.
Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus may not be granted unless it appears that the applicant has exhausted state remedies or that no adequate state remedies are available or effective to protect the applicant's rights. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is satisfied once the federal claim has been presented fairly to the state courts. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the federal issue be presented properly "to the highest state court, either by direct review of the conviction or in a post-conviction attack." Dever, 36 F.3d at 1534. "The exhaustion requirement is not one to be overlooked lightly." Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). A state prisoner bringing a federal habeas corpus action bears the burden of showing that he has exhausted all available state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
As previously stated, Mr. Davis asserts as his third claim that the trial court erred by imposing consecutive sentences. Although the third claim was not presented fairly to the Colorado Supreme Court, I may not dismiss that claim for failure to exhaust state remedies if Mr. Davis no longer has an adequate and effective state remedy available to him. See Castille, 489 U.S. at 351. Respondents maintain that the third claim is procedurally defaulted. Because Mr. Davis already has appealed directly from his convictions and initiated post-conviction proceedings, the claim now would be barred as successive and barred by the three-year Colorado statute of limitations on collateral attacks. See Colo. Rev. Stat. § 16-5-402; see also People v. Wiedemer, 852 P.2d 424 (Colo. 1993) (statute of limitations on collateral attacks to felony convictions); People v. Hubbard, 184 Colo. 242, 519 P.2d 945, 947 (1974) (successive petition rule). If an applicant is foreclosed from raising a claim in a state collateral proceeding because he neglected to raise it earlier, he procedurally has defaulted the claim, absent a showing of cause and prejudice. Klein v. Neal, 45 F.3d 1395 (10th Cir. 1995) (holding that the Colorado courts' application of Colo. Rev. Stat. § 16-5-402 is an independent and adequate state ground).
As a general rule, federal courts "do not review issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the default is excused through a showing of cause and actual prejudice or a fundamental miscarriage of ...