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Bueno v. Timme

United States District Court, D. Colorado

April 11, 2014

JOEY BUENO, Applicant,
v.
RAE TIMME, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant, Joey Bueno, is a prisoner in the custody of the Colorado Department of Corrections at the Colorado Territorial Correctional Facility. Mr. Bueno 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 convictions in case numbers 92CR96 and 92CR209 in the Douglas County District Court. Mr. Bueno has been granted leave to proceed pursuant to 28 U.S.C. § 1915.

On January 2, 2014, 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). After being granted an extension of time to file a pre-answer response, Respondents submitted a Motion for Leave to File Motion to Dismiss (ECF No. 13) arguing that the Application was time barred. The Court granted leave and the Motion to Dismiss Habeas Application (ECF No. 14) was accepted for filing. After being granted an extension of time to file a response to the Motion to Dismiss, Mr. Bueno submitted his Reply (ECF No. 18) on March 17, 2014.

The Court must construe Mr. Bueno's 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 grant Respondents' Motion to Dismiss and deny the Application as untimely.

I. Background

In 1993, a jury found Mr. Bueno guilty of kidnapping, burglary, aggravated robbery, aggravated motor vehicle theft, and second degree assault in case number 92CR96. (ECF No. 1, at 1; No. 14-1, at 32.) In case number 92CR209, Mr. Bueno pled guilty to ten separate counts of aggravated robbery. (ECF No. 1, at 1; No. 14-2, at 26.) The trial court sentenced him to 118 years of imprisonment. (ECF No. 1, at 1; No. 14-1, at 36.)

A. Case Number 92CR96

With respect to case 92CR96, Mr. Bueno filed a direct appeal, and the Colorado Court of Appeals affirmed in part, reversed in part, and remanded with directions to vacate the conviction of second degree burglary and eliminate any sentence imposed for that conviction. (ECF No. 14-1, at 25.) On April 2, 1996, the Colorado Supreme Court order denying certiorari review was filed in the state district court, and the mandate issued April 10, 1996. ( Id. at 24.)

According to the record before the Court, Mr. Bueno did not file any motions for more than two years, until he submitted a motion for appointment of postconviction counsel on June 18, 1998. (ECF No. 14-1, at 21.) On October 9, 1998, Mr. Bueno filed pro se a motion for postconviction relief (hereinafter "Pro Se Postconviction Motion"). ( Id. ) In November 1998, the court appointed postconviction counsel to Mr. Bueno. ( Id. ) In April 2003, nearly five years after being appointed counsel, Mr. Bueno's postconviction counsel filed a "Brief in Support of Motion for New Trial" (hereinafter "2003 Postconviction Supplement"), which the state court considered as a supplement to the Pro Se Postconviction Motion. ( Id., at 18; ECF No. 18, at 11.) On November 4, 2003, the state district court denied the 2003 Postconviction Supplement as untimely and denied the Pro Se Postconviction Motion on the merits. ( Id. ) Mr. Bueno appealed, the Colorado Court of Appeals affirmed, and his petition for writ of certiorari was denied in February 2006. ( Id., at 17.)

On June 20, 2006, Mr. Bueno filed another petition for postconviction relief challenging the effectiveness of his appointed postconviction counsel (hereinafter "2006 Postconviction Counsel Motion") (ECF No. 14-1, at 17; ECF No. 18, at 11.) In June 2009, Mr. Bueno's new court-appointed counsel supplemented the 2006 Postconviction Counsel Motion. (ECF No. 14-1, at 15; ECF No. 18, at 21.) On December 16, 2009, the state district court granted the 2006 Postconviction Counsel Motion finding that Mr. Bueno's postconviction counsel was ineffective and that the court should consider the merits of the 2003 Postconviction Supplement. (ECF No. 14-1, at 15; ECF No. 18, at 11.)

The record reflects that the state district court set an evidentiary hearing to be held in September 2010, but that hearing was continued. (ECF No. 14-1, at 15; ECF No. 18 at 13, 22.) On January 18, 2011, the state district attorney apparently objected to rescheduling the evidentiary hearing, and the new judge directed the parties to submit a timeline relating to Mr. Bueno's postconviction motions. (ECF No. 14-1, at 14; ECF No. 18, at 22.) The new judge then determined that a hearing was unnecessary, and on September 8, 2011, denied postconviction relief. (ECF No. 14-1, at 13.) Mr. Bueno appealed, and in January 2014, the Colorado Court of Appeal order affirming the decision and Colorado Supreme Court order denying certiorari were filed in the state district court. ( Id., at 12; ECF No. 14-2, at 15.)

B. Case Number 92CR209

Mr. Bueno filed a direct appeal in case 92CR209, and the Colorado Court of Appeals affirmed the conviction and sentence in 1996. (ECF No. 14-2, at 22.) On December 9, 1996, the Colorado Supreme Court denied certiorari. ( Id. )

According to the record before the Court, Mr. Bueno did not file any motions until January 30, 1998, when he filed a motion for appointment of counsel. (ECF No. 14-2, at 21.) In February 1998, the state district court ordered the Office of the Public Defender to represent Mr. Bueno in his postconviction proceedings. ( Id. ) In April 1998, Mr. Bueno's appointed public defender withdrew because of conflict, and Mr. Bueno's subsequently appointed counsel also withdrew in November 1998. ( Id. ) On November 30, 1998, Mr. Bueno appears to have filed a motion for application for postconviction relief (hereinafter "First Postconviction Motion"). ( Id. ) On December 9, 1998, Mr. Bueno was appointed postconviction counsel but the record does not indicate any resolution of the First Postconviction Motion. ( Id., at 20.)

In April 2003, Mr. Bueno filed a second motion for postconviction relief (hereinafter "Second Postconviction Motion").[1] (ECF No. 14-2, at 20.) On July 31, 2003, the state district court denied the Second Postconviction Motion. ( Id. ) Mr. Bueno appealed, and the Colorado Court of Appeals affirmed the denial on April 21, 2005. ( Id., at 19.) On August 22, 2005, the Colorado Supreme Court denied certiorari review. ( Id. )

On April 7, 2008, Mr. Bueno filed a third petition for postconviction relief (hereinafter "Third Postconviction Motion"). (ECF No. 14-2, at 19.) In June 2008, the state district court appointed counsel, and a supplement to the postconviction petition was filed through Mr. Bueno's counsel on March 3, 2010. ( Id., at 18-19; ECF No. 18, at 22.) It appears that at some point the state district court consolidated the postconviction proceedings in case 92CR209 and case 92CR96, and denied postconviction relief in both cases on September 8, 2011. (ECF No. 14-1, at 13-14; ECF No. 14-2, at 17-18.) The Colorado Court of Appeals affirmed and certiorari review was denied in January 2014. (ECF No. 14-2, at 15.)

II. Habeas Application

Mr. Bueno initiated the instant habeas corpus action on December 17, 2013, and asserts fifteen claims. The claims are presented as follows:

• Claim One: The trial court erred when it denied the defense's motion to suppress evidence based upon an unconstitutional search and seizure.
• Claim Two: At the suppression hearing, the trial court violated the Defendant's constitutional rights to due process of law, effective assistance of counsel, and to confront the witnesses against him, when it did not require the prosecution to produce reports regarding the other offenses that were used to generate the suspicion for the police contact with the Defendant, inhibiting a meaningful cross-examination of the ...

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