United States District Court, D. Colorado
MARK R. ASHLEY, Applicant,
TRAVIS TRANI (Warden), and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER DRAWING CASE
BOYD N. BOLAND, Magistrate Judge.
Applicant, Mark R. Ashley, has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 4) challenging the validity of his criminal conviction in case 02CR1772 in the Denver District Court. He has been granted leave to proceed pursuant to 28 U.S.C. § 1915.
On February 26, 2014, 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 pre-answer response [ECF No. 13] on March 17, 2013. Applicant did not file a reply.
I. Background and State Court Proceedings
On February 28, 2003, Mr. Ashley was convicted by a jury in case number 02CR1772 of sexual assault, robbery, and two counts of second degree kidnapping. [ECF No. 13-1 at 12]. He was sentenced to forty-eight years to life with the Colorado Department of Corrections. [ Id. ].
Mr. Ashley filed a direct appeal and the Colorado Court of Appeals affirmed in part, vacated in part, and remanded with directions to vacate one count of second degree kidnapping. [ECF No. 13-5 at 2, 14-15, 21]. On July 10, 2006, the Colorado Supreme Court denied Applicant's petition for certiorari review. [ECF No. 13-7].
In June 2007, Mr. Ashley filed a Rule 35(c) motion seeking postconviction relief, and in July 2009, Mr. Ashely's appointed postconviction counsel filed a supplemental Rule 35(c) motion. [ECF No. 13-1 at 8-9; 13-11 at 12]. On May 23, 2013, the Colorado Court of Appeals affirmed the state district court's denial of the petition for postconviction relief. [ECF No. 13-1 at 7; 13-11]. The Colorado Supreme Court denied certiorari review on January 13, 2014. [ECF No. 13-13].
Mr. Ashley initiated this action on January 23, 2014 by filing a letter. [ECF No. 1]. On February 24, 2014, he filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [ECF No. 4] asserting the following three claims for relief:
(1) ineffective assistance of counsel based on (a) counsel's failure to consult and communicate with Applicant; (b) counsel's conduct during trial as being the equivalent of a guilty plea; and (c) counsel's failure to more thoroughly investigate and challenge the DNA evidence;
(2) due process violation because the victim's out-of-court identification of Applicant was based on an impermissibly suggestive photo array; and
(3) violation of his right to a jury trial as recognized in Apprendi v. New Jersey, 530 U.S. 466 (2000) because the trial court improperly aggravated Mr. Ashley's sentence based on facts not found by the jury.
[ECF No. 4 at 11-14].
II. Timeliness of Application
Respondents do not challenge the timeliness of the Application under the one-year limitation period set forth in 28 U.S.C. § ...