United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Steven Jeffery Valdez, is a prisoner in the custody of the Colorado Department of Corrections ("DOC"). Mr. Valdez 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 and sentence in Denver District Court case number 06CR4906.
On November 19, 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 December 20, 2013, Respondents filed their Pre-Answer Response (ECF No. 10). On February 13, 2014, Mr. Valdez filed a reply (ECF No. 13) to the Pre-Answer Response.
The Court must construe the Application and other papers filed by Mr. Valdez 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.
Mr. Valdez was convicted by a jury of second degree murder, attempted manslaughter, and prohibited use of a weapon. He was sentenced to a total term of forty-two years in prison. The judgment of conviction was affirmed on direct appeal. People v. Valdez, No. 07CA2411 (Colo.App. Aug. 18, 2011) (unpublished) (ECF No. 10-5). On June 4, 2012, the Colorado Supreme Court denied Mr. Valdez's petition for writ of certiorari on direct appeal. See Valdez v. People, No. 11SC716, 2012 WL 1994872 (Colo. June 4, 2012).
On December 17, 2012, Mr. Valdez filed in the trial court a motion for sentence reconsideration pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure. (See ECF No. 10-1 at 7.) The trial court denied the Rule 35(b) motion on December 21, 2012. ( See id. ) Mr. Valdez did not appeal.
The Application was received for filing on November 14, 2013. Mr. Valdez asserts the following eight claims for relief: (1) the prosecutor improperly expressed a personal opinion during closing argument; (2) the trial court erred by denying the defense's challenge for cause to Juror W; (3) the trial court erred by refusing to instruct the jury concerning the weight to be given to Mr. Valdez's confession; (4) the trial court erred by denying the defense's challenge for cause to Juror B; (5) the prosecutor improperly used Mr. Valdez's post- Miranda silence as evidence of guilt; (6) Mr. Valdez's confession was involuntary; (7) Mr. Valdez's waiver of his Miranda rights was invalid; and (8) trial counsel was ineffective.
Respondents first argue that the Application 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 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 ...