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Davis v. Falk

United States District Court, Tenth Circuit

December 5, 2013

GLENN DAVIS, Applicant,
v.
JAMES FALK, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant, Glenn Davis, is a prisoner in the custody of the Colorado Department of Corrections. Mr. Davis has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) ("the Application") challenging the validity of his conviction in Adams County District Court case number 03CR685.

On September 13 and October 7, 2013, Magistrate Judge Boyd N. Boland ordered Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses in this action. On November 7, 2013, Respondents filed a Pre-Answer Response (ECF No. 13) arguing that the Application is untimely and that many of Mr. Davis' claims are unexhausted and procedurally barred. On November 21, 2013, Mr. Davis filed a "Motion to Accept Habeas Corpus as Timely Filed'" (ECF No. 14) and a "Second Motion for Appointment of Counsel for Habeas Corpus" (ECF No. 15).

The Court must construe the Application and other papers filed by Mr. Davis 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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the action as untimely. The "Motion to Accept Habeas Corpus as Timely Filed'" and the "Second Motion for Appointment of Counsel for Habeas Corpus" will be denied.

The crimes for which Mr. Davis was convicted involved sexual assaults against his girlfriend's three daughters. Mr. Davis was convicted by a jury on three counts of sexual assault on a child, three counts of sexual assault on a child by one in a position of trust, three counts of sexual assault on a child by one in a position of trust-pattern of abuse, one count of sexual exploitation of a child, and one count of transfer of marijuana to a person under fifteen years of age. Mr. Davis was sentenced to a combination of consecutive and concurrent sentences totaling sixty years to life in prison. The judgment of conviction was affirmed on direct appeal. See People v. Davis, No. 05CA1792 (Colo.App. Aug. 30, 2007) (unpublished) (ECF No. 13-6). On January 22, 2008, the Colorado Supreme Court denied Mr. Davis' petition for writ of certiorari on direct appeal. ( See ECF No. 13-8.)

On May 22, 2008, Mr. Davis filed in the trial court a postconviction motion for sentence reconsideration pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure. ( See ECF No. 13-1 at 10.) That motion was denied on May 28, 2008, and Mr. Davis did not appeal. ( See id. )

On June 26, 2008, Mr. Davis filed in the trial court a motion for appointment of counsel. ( See id. ) On June 30, 2008, the trial court denied the motion for appointment of counsel because no other motions were pending. ( See id. )

On July 18, 2008, Mr. Davis filed in the trial court another motion for appointment of counsel along with a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. ( See id.; ECF No. 13-2.) On July 24, 2008, the trial court denied the Rule 35(c) motion without a hearing and without appointing counsel. ( See ECF No. 13-3.) Mr. Davis did not appeal.

On September 3, 2010, Mr. Davis filed in the trial court a second postconviction Rule 35(c) motion. ( See ECF No. 13-1 at 10.) The trial court denied that motion without a hearing on September 8, 2010. ( See id. ) Mr. Davis filed an appeal and the trial court's September 8, 2010 order was affirmed. See People v. Davis, No. 11CA0465 (Colo.App. Aug. 2, 2012) (unpublished) (ECF No. 13-10). Mr. Davis did not seek review in the Colorado Supreme Court and on September 28, 2012, the Colorado Court of Appeals issued its mandate. ( See ECF No. 13-11.)

The Application was filed on September 12, 2013. Mr. Davis contends in the Application that his Fifth Amendment rights were violated because he did not receive an adequate Miranda warning (claim one); trial counsel was ineffective by failing to publish photographs and present other evidence that demonstrates his confession was coerced (claim two); direct appeal counsel was ineffective by failing to raise illegal arrest and illegal sentence issues (claim three); postconviction counsel was ineffective by failing to file appeals from the denials of the Rule 35(c) motions (claim four); his Fifth Amendment rights were violated because his confession was false and coerced (claim five); the lack of physical evidence corroborating his coerced confession violates the corpus delicti rule and his constitutional right to due process (claim six); and he has a right to file this habeas corpus action (claim seven).

The Court notes initially that claims four and seven do not present cognizable habeas corpus issues and may not be raised in this action. Claim four, in which Mr. Davis argues that postconviction counsel was ineffective, is not cognizable because "[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." 28 U.S.C. § 2254(i). Claim seven is not a cognizable habeas corpus claim because Mr. Davis does not allege any facts in claim seven that challenge the validity of his conviction or sentence. Therefore, claims four and seven will be dismissed.

Respondents first argue that this action is untimely because it is barred by the one-year limitation period in 28 U.S.C. § 2244(d). That statute provides as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...

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