United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Michael Terrell Wheeler, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the correctional facility in Sterling, Colorado. On July 29, 2013, Mr. Wheeler filed pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging the validity of his conviction in Adams County, Colorado, district court Case No. 03CR2071. Mr. Wheeler paid the $5.00 filing fee in a habeas corpus action.
In orders filed on September 3 and October 8, 2013, Magistrate Judge Boyd N. Boland directed 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 under 28 U.S.C. § 2254(b)(1)(A). On October 31, 2013, after being granted an extension of time, Respondents submitted their pre-answer response (ECF No. 15). Mr. Wheeler has not filed a reply, although he was afforded the opportunity to do so. On February 3, 2014, Respondents submitted an amended pre-answer response (ECF No. 18) that corrected formatting issues.
The Court must construe Mr. Wheeler'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 a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the action as barred by the one-year limitation period.
On April 21, 2005, Mr. Wheeler pleaded guilty in Adams County District Court Case No. 03CR2071 to second-degree murder, aggravated robbery, and a crime-of-violence enhancer. ECF No. 18, ex. A at 2-3, 10. On June 10, 2005, he was sentenced to consecutive sentences of thirty years on the second-degree murder conviction and sixteen years on the aggravated robbery conviction. ECF No. 18, ex. A at 9. On June 21, 2007, the Colorado Court of Appeals affirmed the sentences on direct appeal. ECF No. 18, ex. D ( People v. Wheeler, No. 05CA1492 (Colo. Ct. App. June 21, 2007)). On September 17, 2007, the Colorado Supreme Court denied certiorari review. ECF No. 15, ex. F. Mr. Wheeler did not appeal to the United States Supreme Court. He filed numerous postconviction motions, all of which were unsuccessful. ECF No. 18, ex. A at 4-9.
On July 29, 2013, Mr. Wheeler filed the instant habeas corpus application raising one claim that the state violated the United States Constitution by instituting the case against him by way of an information rather than an indictment by a grand jury. ECF No. 1 at 5.
Respondents argue that this action is barred by the one-year limitation period in 28 U.S.C. § 2244(d). Section 2244(d) 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 time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...