United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND FOR ANSWER
R. BROOKE JACKSON, District Judge.
Applicant, Donovan Craig Matthews, is a prisoner in the custody of the Colorado Department of Corrections (DOC) who currently is incarcerated at the Kit Carson Correctional Center in Burlington, Colorado. Mr. Matthews, acting pro se, filed a second amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 14) challenging the validity of his conviction in Adams County, Colorado, district court Case No. 07CR1097. He has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
In an order entered on December 4, 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) if Respondents intended to raise either or both of those affirmative defenses in this action. On January 21, 2014, after being granted an extension of time, Respondents filed their pre-answer response (ECF No. 22). Mr. Matthews did not file a reply to the pre-answer response, although he was provided with the opportunity to do so.
The Court must construe Mr. Matthews' 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.
I. Background and State Court Proceedings
Mr. Matthews was convicted by a jury in Arapahoe County District Court Case No. 07CR1097 of first-degree assault (causing serious bodily injury with a deadly weapon), two counts of second-degree assault (causing bodily injury with a deadly weapon), third-degree assault, and illegal possession of a weapon by a prior offender. ECF No. 22, ex. D ( People v. Matthews, No. 08CA0904 (Colo. Ct. App. Sept. 16, 2010) (unpublished)) at 3. The trial court merged the second and third-degree assault convictions into the first-degree assault conviction, and imposed concurrent prison sentences of twenty-six years for the assault conviction and one year for the illegal weapon conviction. ECF No. 22, ex. D at 3-4.
Applicant appealed directly to the Colorado Court of Appeals, which on September 16, 2010, affirmed his convictions. ECF No. 22, ex. D. On January 18, 2011, the Colorado Supreme Court denied certiorari review. ECF No. 22, ex. F. On June 2, 2011, Mr. Matthews filed a motion for sentence reconsideration, which the trial court denied the same day. ECF No. 22, ex. A (state court register of actions) at 8. Applicant did not appeal.
On June 17, 2011, Mr. Matthews filed a motion for postconviction relief. ECF No. 22, ex. A at 8. On September 22, 2011, the trial court denied the motion. ECF No. 22, ex. A at 8. On August 23, 2012, the Colorado Court of Appeals affirmed. ECF No. 22, ex. H ( People v. Matthews, No. 11CA2269 (Colo. Ct. App. Aug. 23, 2012) (unpublished)). On June 24, 2013, the Colorado Supreme Court denied certiorari review. ECF No. 22, ex. J.
On August 8, 2013, Mr. Matthews filed his original habeas corpus application (ECF No. 4) with the Court. Respondents concede the instant action is filed within the one-year limitation period in 28 U.S.C. § 2244(d). Therefore, the Court need not address further the one-year limitation period. Mr. Matthews asserts the following six claims:
(1) The admission of other-acts evidence violated Applicant's right to a fair trial. ECF No. 14 at 12.
(2) The admission of photographs of his prior acts violated his right to a fair trial. Id.
(3) The admission of the photographs without a proper foundation violated his right to a fair trial. Id. at 13.
(4) The admission of his involuntary statements violated his right to a fair trial. Id.
(5) The admission of testimony not based on personal knowledge violated his right to a fair trial. Id. at 14.
(6) The trial court's denial of his motion to dismiss the public defender violated his right to the effective ...