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Hill v. Miller

United States District Court, Tenth Circuit

December 4, 2013

ALBERT B. HILL, Applicant,
v.
MICHAEL MILLER, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant, Albert B. Hill, is a prisoner in the custody of the Colorado Department of Corrections (CDOC) at the Crowley County Correctional Facility in Olney Springs, Colorado. He has filed an amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Doc. # 10]. Mr. Hill challenges the validity of his convictions and sentence imposed in the District Court of Arapahoe County, Colorado. He has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

On July 16, 2013, Magistrate Judge Boyd N. Boland directed Respondents to file a pre-answer response addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). Respondents submitted a Pre-Answer Response on August 5, 2013. [Doc. # 14]. Applicant filed a Reply [Doc. # 23] on November 14, 2013, after obtaining two extensions of time.

The Court construes Mr. Hill's filings liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the court should not act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the Application.

I. Background and State Court Proceedings

In May 2001, Mr. Hill was convicted pursuant to his guilty plea in Arapahoe County District Court Case No. 98CR2069 of two counts of sexual assault on a child (pattern of abuse) and two counts of sexual assault on a child by one in a position of trust. [Doc. # 10, at 50; Doc. # 14-1, at 11-12]. Pursuant to a stipulation in the plea agreement, he was sentenced on September 10, 2001, to thirty years in prison, plus five years of mandatory parole. [Doc. # 10, at 50; Doc. # 14-1, at 13].

On November 14, 2002, Mr. Hill filed a motion for post-conviction relief under Colo. R. Crim. P. 35(c), which was denied by the trial court on December 23, 2002. [Doc. # 14-1, at 24]. Subsequently, he filed four other post-conviction motions. [ See generally Doc. # 14-1, at 21-25]. On November 21, 2008, Applicant filed a motion to correct an illegal sentence, which the state trial court granted on January 8, 2009. [ Id. at 20]. The trial court issued an amended mittimus the same day. [ Id. ]. The amended mittimus reflected that Mr. Hill was subject to discretionary, rather than mandatory, parole and credited Applicant with an additional nine days of presentence confinement. [Doc. # 10, at 39, 41, 53].

On May 12, 2009, Mr. Hill filed a motion for reconsideration of his sentence pursuant to Colo. R. Crim. P. 35(b), which was denied by the state district court on June 17, 2009. [Doc. # 14-1, at 19].

Applicant then filed a motion for post-conviction relief pursuant to Colo. R. Civ. P. 35(c), which was denied by the state district court on February 9, 2010. [ Id. at 19]. Applicant's appeal of that order was denied, and the Supreme Court denied his request for certiorari review on March 13, 2013. [ Id. ].

Mr. Hill filed his federal § 2254 application on May 7, 2013, raising eight claims:

(1) The Colorado Supreme Court violated Applicant's due process rights when it dismissed his petition for certiorari review. [Doc. # 10, at 5, 12].
(2) The Colorado Court of Appeals violated his constitutional right to due process when it determined that his state motion for post-conviction review was successive. [ Id. at 6, 12-15].
(3) Applicant's guilty plea was not entered knowingly, intelligently and voluntarily because he was under the "mentally debilitating effects of Prozac and/or Depakote" at the time he pled guilty. [ Id. at 6, 15-16].
(4), (5) Counsel was ineffective in: coercing Applicant to accept a plea agreement by advising him incorrectly about the affirmative defense of involuntary intoxication; failing to investigate the facts and law regarding the affirmative defense of involuntary intoxication. [ Id. at 17-29].
(6) Counsel was ineffective in failing to consult with medical professionals regarding Applicant's mental capacity before the trial court accepted ...

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