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Rudnick v. Falk

United States District Court, D. Colorado

February 14, 2014

JAMES RUDNICK, Applicant,
v.
WARDEN JAMES FALK, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant, James Rudnick, is a prisoner in the custody of the Colorado Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr. Rudnick has filed pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). He is challenging the validity of his Colorado conviction and sentence in case number 91CR2236 from the District Court, City and County of Denver, Colorado. Mr. Rudnick has been granted leave to proceed pursuant to 28 U.S.C. § 1915.

On November 26, 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) (ECF No. 8). Respondents filed the Pre-Answer Response (ECF No. 12) on December 16, 2013. Although Mr. Rudnick did not file a reply, he submitted two documents entitled "Judicial Notice" (ECF Nos. 13 and 15) on December 27, 2013 and January 31, 2014, respectively, and a Motion Requesting Court Leave to Amend and Supplement Habeas Corpus Application (ECF No. 16) on February 6, 2014.

The Court must construe Mr. Rudnick's Application 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 under 28 U.S.C. § 2244(d)(1).

In 1992, a jury found Mr. Rudnick guilty of first-degree (deliberative) murder, attempted first-degree (deliberative) murder, and two counts of first-degree assault. (ECF No. 1, at 15; No. 12-1, at 11; No. 12-4, at 3.) The trial court imposed a life sentence for the murder conviction, a consecutive eighteen-year term for the attempted murder conviction, and a concurrent four-year sentence for the assault convictions. (ECF No. 1, at 15; No. 12-1, at 12; No. 12-4, at 3.) Mr. Rudnick filed a direct appeal, and on December 30, 1993, the Colorado Court of Appeals affirmed his conviction in a published opinion, People v. Rudnick, 878 P.2d 16 (Colo.App. 1993). (ECF No. 12-4, at 3; ECF No. 12-8.) On August, 8, 1994, the Colorado Supreme Court denied certiorari. (ECF No. 12-4, at 3.)

According to the record before the Court, Mr. Rudnick did not submit any filings in the state district court until December 2, 1997, when he submitted a letter. (ECF No. 12-1, at 7.) On December 12, 1997, Mr. Rudnick filed a motion to "waive restitution and fines." ( Id. ) The state district court apparently denied the motion, and Mr. Rudnick sought reconsideration of the denial on January 29, 1998. ( Id. ) The record does not show that the motion to reconsider was resolved.

Mr. Rudnick filed his first motion for post-conviction relief on July 30, 2004. (ECF No. 12-1, at 7.) The record does not show that this motion was resolved. Nearly six years later, on March 8, 2010, Mr. Rudnick filed a second motion for post-conviction relief under Rule 35(c). ( Id., at 6.) The court denied the motion on August 26, 2010, and Mr. Rudnick appealed the decision. ( Id.; No. 12-5.) On April 19, 2012, the Colorado Court of Appeals affirmed the state district court's order denying the Rule 35(c) motion for post-conviction relief. (ECF No. 12-4.) Mr. Rudnick sought certiorari review, which was denied on November 27, 2012. (ECF No. 1, at 16.)

Mr. Rudnick initiated the instant habeas corpus action on November 25, 2013. He asserts three claims with numerous subparts within each claim. Claim one contends that the trial court lacked jurisdiction because (a) he was arrested and charged without any grand jury process; (b) his arraignment was untimely; (c) the charges were amended twice before arraignment and without additional notice; and (d) his waiver of his right to a speedy trial was improper due to the expiration of the deadline prior to his waiver. Claim two asserts ineffective assistance of counsel, and he contends that there were 250 related issues, including the following: defense counsel (a) revealed privileged statements and evidence to the prosecution; (b) failed to protect his constitutional rights to an arraignment, grand jury, and speedy trial; (c) was ill-prepared for trial; (d) failed to present a plea deal from the prosecution; and (e) was ineffective during pre-trial proceedings[1] and at trial.[2] Claim three asserts a violation of due process and equal protection alleging that the cumulative effect of the jurisdictional problems and ineffective assistance of counsel prevented (a) a full and fair hearing at trial; (b) adequate development of material facts; and (c) confidence in the jury verdict.

As noted above, Mr. Rudnick recently filed a motion for leave to amend and supplement the Application, which includes the following claims: (a) due process violation for the state district court's "unconstitutional changes of sentence' on public and official documentation;" (b) actual innocence claim "under natural right of self-defense and the unconstitutional District Court restrictions preventing fair and accurate presentation of justifiable circumstances, ' or assumption of risk' and voluntary exposure to danger' instruction;" (c) equal protection and due process violation for "unconstitutional [flawed] jury process" due to "improper exposure to corrupt evidence and lack of instructions;" (d) "attorney violation of contract" resulting in "unconstitutional [due process violation] conviction" where counsel breached "attorney/client privilege" and "switched sides to benefit the prosecution;" and (e) "speedy trial jurisdiction violation" (ECF No. 16, at 1-2).

Respondents argue that the Application is untimely. Respondents also assert that claim one is either not cognizable or is anticipatorily defaulted; claim two is partially exhausted, partially unexhausted, and partially inadequately pleaded; and claim three is inadequately pleaded or, in the alternative and assuming claim three alleges a cognizable constitutional violation, is partially exhausted and partially defaulted. Respondents have not addressed the claims in the motion to amend and supplement because Mr. Rudnick sought to raise those claims after the Pre-Answer Response was filed.

The Court first will address the timeliness argument.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year period of limitation for federal habeas petitions by state prisoners. 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 ...

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