ORDER DRAWING CASE
LEWIS T. BABCOCK, Senior District Judge.
Applicant, James Bryant, is in the custody of the Colorado Department of Corrections at the Kit Carson Correctional Center in Burlington, Colorado. Mr. Bryant has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his criminal conviction in the District Court of El Paso County, Colorado. He has paid the $5.00 filing fee.
In an October 15, 2013 order, 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 October 22, 2013. Applicant was given an opportunity to file a reply.
The Court must construe liberally the Application filed by Mr. Bryant 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 a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Application will be drawn to a district judge and to a magistrate judge.
I. Background and State Court Proceedings
On August 25, 2005, Mr. Bryant was convicted by a jury of assault on a peace officer and distribution of a schedule II controlled substance in El Paso County District Court Case No. 03CR1282. [Doc. #1, at 1-2]. After adjudication as a habitual criminal, Mr. Bryant was sentenced to an aggregate prison term of 48 years. [ Id. at 2; Doc. #9-1, at 6].
The Colorado Court of Appeals affirmed Mr. Bryant's convictions on direct appeal in People v. Bryant ( Bryant I ), No. 05CA2084 (Colo.App. March 5, 2009) (unpublished decision). [Doc. #9-10]. Applicant's request for certiorari review was denied by the Colorado Supreme Court on November 9, 2009, [Doc. #9-8], and by the United States Supreme Court on March 22, 2010. [Doc. #9-6].
On April 10, 2010, Mr. Bryant filed pro se a motion for post-conviction relief pursuant to Colo. R. Crim. P. 35(c), which was denied summarily by the state district court on April 29, 2010. [Doc. #9-5]. The Colorado Court of Appeals affirmed in People v. Bryant ( Bryant II ), No. 10-CA1107 (Colo.App. June 21, 2012) (unpublished). [Doc. #9-3]. Applicant filed a petition for rehearing, which was denied on November 1, 2012. [Doc. #9-2]. He did not file a petition for certiorari review with the Colorado Supreme Court.
Mr. Bryant initiated this action on August 16, 2013. He asserts two claims in the Application:
(1) that he received ineffective assistance of counsel, in violation of the Sixth Amendment, when trial counsel failed to conduct reasonable investigations to discover exculpatory evidence and testimony. [Doc. #1, at 12].
(2) that his appellate counsel was ineffective in failing to raise issues on appeal concerning Applicant's habitual criminal adjudication. [ Id. at 14].
II. Timeliness of Application
Respondents do not challenge the timeliness of the Application under the one-year limitation period set forth in 28 ...