United States District Court, D. Colorado
MAITISE D. CREWS, Applicant,
WARDEN TRAVIS TRANI, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Maitise D. Crews, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the correctional facility in Limon, Colorado. On July 15, 2013, Mr. Crews filed an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). On August 1, 2013, he filed an amended habeas corpus application (ECF No. 4). Mr. Crews is challenging the validity of his conviction in El Paso County District Court Case No. 07CR1940. Mr. Crews paid the $5.00 filing fee in a habeas corpus action.
On August 5, 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 August 27, 2013, Respondents submitted their pre-answer response (ECF No. 11). Mr. Crews did not file a reply to the pre-answer response, although he was granted the opportunity and extensions of time to do so.
The Court must construe Mr. Crews' 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.
Mr. Crews was convicted by a jury in El Paso County District Court Case No. 07CR1940 of felony menacing, third-degree assault, and three habitual criminal counts following an altercation in which he attacked his wife. ECF No. 11, ex. A (state register of actions) at 4-5, ex. B ( People v. Crews, No. 08CA0451 (Colo. Ct. App. Apr. 21, 2011)) at 2. He was sentenced to twelve years of incarceration. ECF No. 11, ex. A at 9; ex. C (appellant's opening brief) at 9. On April 21, 2011, the Colorado Court of Appeals affirmed the convictions and sentence on direct appeal. ECF No. 11, ex. B. On November 17, 2011, the Colorado Supreme Court denied certiorari review. ECF No. 11, ex. A at 7.
On June 29, 2012, Mr. Crews filed a postconviction motion challenging his conviction, ECF No. 4 at 4; ECF No. 11, ex. A at 7., which the trial court denied on July 10, 2012. Id. Mr. Crews did not appeal.
In the amended habeas corpus application, Mr. Crews asserts three claims:
1. The trial court abused its discretion by denying Applicant's request for substitute appointed counsel. ECF No. 4 at 5.
2. Applicant was denied a fair trial by prosecutorial comments in closing argument. Id. at 6.
3. The trial court violated state evidentiary rules in admitting certain documents in Applicant's habitual criminal sentencing hearing, resulting in his conviction without his guilt being proven beyond a reasonable doubt. Id.
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 ...