United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Bobby Baker, is in the custody of the Colorado Department of Corrections at the Fremont Correctional Facility in Cañon City, Colorado. Applicant initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 with this Court on September 13, 2013. Applicant raises three claims challenging the validity of his conviction in Jefferson County District Court Case No. 01CR480. Applicant asserts (1) he was denied effective assistance of counsel, (2) the district court improperly admitted evidence, and (3) his consecutive sentences are illegal and unconstitutional.
On October 21, 2013, Magistrate Judge Boyd N. Boland directed Respondents to file a Pre-Answer Response 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). Respondents submitted a Response on December 6, 2013. The Court granted Applicant an extension of time to reply on January 14, and again on February 7, 2014. Applicant, however, has not replied within the time allowed.
The Court must construe liberally the Application because Applicant 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 does not "assume the role of advocate for the pro se litigant." See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the action because it is barred by the one-year limitation period in 28 U.S.C. § 2244(d).
The underlying facts were summarized by the Colorado Court of Appeals (CCA) as follows:
Following a jury trial, defendant was found guilty of extreme indifference first degree assault, second degree kidnapping of a victim of a sexual assault, and five counts of sexual assault, including two aggravated counts: one for causing submission of the victim by threats of imminent harm and one for causing her submission by threats of future harm. Defendant was sentenced to consecutive twenty-four-year terms in the Department of Corrections for the first degree assault and second degree kidnapping counts, and a consecutive sentence of twenty-four years to life imprisonment for the sexual assaults, plus mandatory parole of twenty years to life.
People v. Baker, 178 P.3d 1225, 1228 (Colo.App. Oct. 4, 2007). After the Colorado Supreme Court (CSC) ordered the CCA to accept Applicant's notice of appeal as timely and proceed with the appeal, see People v. Baker, 104 P.3d 893, 898 (Colo. 2005), the CCA vacated the judgment as to the jury's finding of the class three felony aggravator under Colo. Rev. Stat. § 18-3-402(4)(c), but affirmed in all other respects on October 4, 2007, see id. at 1235. Applicant's petition for certiorari review was denied on September 6, 2008. Id. at 1225.
Applicant then filed a Colo. R. Crim. P. 35(b) postconviction motion on January 9, 2009, which was denied on July 6, 2009. Application at 6. Applicant also asserts that he filed a Colo. R. Crim. P. 35(c) on August 31, 2009, that was denied on March 31, 2010. Id. at 7. Applicant further asserts that he appealed the Rule 35(b) motion at the same time he appealed his Colo. R. Crim. P. 35(c) postconviction motion, and both were denied on December 15, 2011. Id. at 6-7. The petition for certiorari review of the postconviction motions was denied on August 27, 2012. Id.
Respondents argue that this action is untimely under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). 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 ...