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Woodward v. Zupan

United States District Court, D. Colorado

February 7, 2014

DONALD WOODWARD, Applicant,
v.
DAVID M. ZUPAN, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant, Donald Woodward, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the San Carlos Correctional Facility in Pueblo, Colorado. On October 1, 2013, Mr. Woodward 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 Denver District Court Case No. 07CR3838. He paid the $5.00 filing fee in a habeas corpus action.

In an order filed on October 9, 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 November 7, 2013, after being granted an extension of time, Respondents submitted their pre-answer response (ECF No. 12). On November 26, 2013, Mr. Woodward filed a reply (ECF No. 13) to the pre-answer response.

The Court must construe Mr. Woodward'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.

Following a jury trial, Mr. Woodward was convicted in Denver District Court Case No. 07CR3838 on charges of first-degree burglary and second-degree aggravated motor vehicle theft. ECF No. 1 at 72. On April 7, 2008, the trial court sentenced him to concurrent sentences of twelve years on the first-degree burglary conviction and six years on the second-degree aggravated motor vehicle theft conviction. ECF No. 1 at 2, 16. On March 24, 2011, the Colorado Court of Appeals affirmed the sentences on direct appeal. ECF No. 1 at 71-84 ( People v. Woodward, No. 08CA1090 (Colo. Ct. App. Mar. 24, 2011)). On July 5, 2011, the Colorado Supreme Court denied certiorari review. ECF No. 1 at 85. Mr. Woodward did not appeal to the United States Supreme Court.

On November 17, 2011, Mr. Woodward filed a motion for reduction of sentence pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure (ECF No. 1 at 88-91; ECF No. 12, ex. A (state register of actions) at 2), which the trial court denied on November 21, 2011. ECF No. 1 at 106; ECF No. 12, ex. A at 2. Mr. Woodward did not appeal the denial, and has not filed anything in state court since. ECF No. 1, ex. A at 2.

On October 1, 2013, Mr. Woodward filed the instant habeas corpus application raising three claims:

(1) Applicant's right to a fair trial was violated when police officers gave false testimony at trial. ECF No. 1 at 5.
(2) Applicant's right to a fair trial was violated by the police department's failure to secure a video or audio recording of Applicant's confession. Id. at 6.
(3) Applicant's rights to due process and a fair trial were violated when the trial court allowed the prosecutor to elicit a statement by Applicant revealing that Applicant previously had been incarcerated. Id. at 6, 22.

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 ...

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