United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Eric Chapman, has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 9). Mr. Chapman is challenging the validity of his conviction in the Arapahoe County District Court, Case Number 06CR2462.
On February 27, 2014, 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 intended to raise either or both of those defenses in this action. After being granted an extension of time, Respondents filed their Pre-Answer Response (ECF No. 16) on April 4, 2014. Mr. Chapman has not filed a reply to the Pre-Answer Response despite being given an opportunity to do so.
The Court must construe the Application liberally because Mr. Chapman 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 because the claims are procedurally barred.
The Colorado Court of Appeals summarized the state court proceedings relevant to the conviction and sentence as follows:
Following a jury trial, defendant was found guilty of three counts of sexual assault on a child by one in a position of trust - pattern of abuse, and three counts of aggravated incest - natural child under twenty-one. Before sentencing, defendant filed a "Motion for Judgment of Acquittal and In The Alternative Motion for New Trial and Motion for Reconsideration of Evidentiary Rulings" (motion for judgment of acquittal). The trial court denied the motion.
Defendant was sentenced to eight years to life in the Department of Corrections (DOC) on each of the sexual assault charges and four years to life in the DOC on each of the aggravated incest charges, with all six sentences running concurrently. He appealed and a division of this court affirmed the conviction. People v. Chapman, (Colo.App. No. 07CA1629, June 24, 2010) (not published pursuant to C.A.R. 35(f)).
Defendant later filed a pro se Crim. P. 35(c) motion for postconviction relief. The trial court summarily denied the motion, finding that "all of the claims set forth in [d]efendant's [Crim. P.] 35(c) motion are successive because they were previously raised in [d]efendant's motion for judgment of acquittal" and, alternatively, that defendant's motion failed to provide "specific facts to support th[e] bare and conclusory assertion[s]." This appeal follows.
People v. Chapman, No. 11CA2618, slip op at 1-2 (Colo.App. March 7, 2013) (unpublished) (ECF No. 16-7 at 2-3). The Colorado Court of Appeals affirmed the trial court's order denying six claims for postconviction relief because the claims could have been raised in the direct appeal. See id. at 4. The Court of Appeals also refused to address three claims that were not raised in Mr. Chapman's postconviction motion and not addressed in the trial court's order giving rise to the appeal. Id. at 4-5.
Mr. Chapman initiated the instant action on December 26, 2013, and the Application was filed on February 25, 2014. He asserts the following seven claims:
Claim 1: Did the trial court abuse it's authority after allowing the prosecution to re litigate the defendants acquittal case #02CR1631 when the trial court failed to instruct the jury concerning the common law doctrine of Res Judica Pro Vertate Accipture when required to do so by the defense?
Claim 2: Did the trial court abuse it's authority, when over defense objections it allowed the prosecution to argue that there was no evidence that Justine had ever been in trouble with the police or abused in any state or foster care facility, ? After allowing the prosecutor to redact any and all references of problems from the discovery?
Claim 3: Did the trial court abuse it's authority by allowing the prosecution to use the rape shield statute to prevent the defense from defending himself, ? When the defense was instructed not to talk about ...