United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Larry Gordon, is a prisoner in the custody of the Colorado Department of Corrections at the correctional facility in Limon, Colorado. On March 5, 2014, Mr. Gordon filed pro se a second and final amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 8). He is challenging the validity of his conviction in Denver District Court Case No. 93CR1055. Mr. Gordon has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On March 10, 2013, Magistrate Judge Boyd N. Boland entered an order (ECF No. 10) directing 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). On March 28, 2014, after being granted an extension of time, Respondents submitted their pre-answer response (ECF No. 18). On April 21, 2014, Mr. Gordon submitted a reply (ECF No. 22).
The Court must construe Mr. Gordon'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 dismiss the action as barred by the one-year limitation period.
Mr. Gordon was convicted on October 29, 1993, by a jury in Denver District Court Case No. 93CR1055 of second-degree burglary, second-degree kidnapping, and third-degree assault. ECF No. 18, ex. A (state register of actions) at 12-13. On December 17, 1993, the trial court sentenced him to 12 years for second-degree burglary, 8 years for second-degree kidnapping, and 2 years for third-degree assault, to be served concurrently. ECF No. 18, ex. A at 13. Although these sentences would have expired had they been Mr. Gordon's only sentences, they are consecutive to those imposed in other cases and, under Colorado law, he remains in custody on these convictions. See Colo. Rev. Stat. § 17-22.5-101 ("[When any inmate has been committed under several convictions with separate sentences, the [Colorado Department of Corrections] shall construe all sentences as one continuous sentence.").
Mr. Gordon appealed directly from his convictions and sentences, arguing only the sufficiency of the evidence. ECF No. 18, ex. L (appellant's opening brief). On May 25, 1995, the Colorado Court of Appeals affirmed. ECF No. 18, ex. K ( People v. Gordon, No. 94CA0005 (Colo. Ct. App. May 25, 1995)). On November 14, 1995, the Colorado Supreme Court denied certiorari review. ECF No. 18, ex. I. On October 7, 1996, the United States Supreme Court denied certiorari review. ECF No. 18, ex. H.
On January 25, 1996, while his certiorari petition was pending in the United States Supreme Court, Mr. Gordon filed a motion for sentence reconsideration pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure, which the trial court denied without a hearing on March 8, 1996. ECF No. 18, ex. A at 8. On December 16, 1997, Mr. Gordon filed the first of four motions to disqualify the trial judge, as well as an affidavit in support of the first motion to disqualify. ECF No. 18, ex. A at 7. On January 8, 1998, he filed a second motion for the judge's recusal and supporting affidavit. ECF No. 18, ex. A at 7. On January 26, 1998, he filed a petition for writ of error coram nobis, ECF No. 18, ex. A at 7, which the trial court dismissed on February 10, 1998. ECF No. 18, ex. A at 7. On March 10, 1998, he filed a petition for rehearing, which was denied on March 18, 1998. ECF No. 18, ex. A at 7.
Although Mr. Gordon filed a number of postconviction motions after March 18, 1998, including a third motion to disqualify the judge on March 23, 1998 (ECF No. 18, ex. A at 7), and a fourth such motion on October 2, 2012 (ECF No. 18, ex. A at 5-6), it is unnecessary for the Court to address any of these postconviction motions except Applicant's motions filed on August 9, 2012, and September 7, 2012, to set aside judgment and sentence, and to issue a subpoena, all of which the trial court denied on September 7, 2012. ECF No. 18, ex. A at 6. Mr. Gordon did not timely appeal or seek rehearing. On November 29, 2012, the requests for disqualification of the trial judge were denied. ECF No. 18, ex. A at 5. Mr. Gordon did not appeal.
On December 17 and 20, 2013, Mr. Gordon filed petitions for rehearing (ECF No. 18, ex. A at 5), but the rulings for which he sought rehearing are unclear. On January 3, 2013, the trial court denied the petitions. ECF No. 18, ex. A at 5. On January 18, 2013, Mr. Gordon initiated an appeal in the Colorado Court of Appeals. ECF No. 18, ex. A at 5.
After Mr. Gordon filed an opening brief approximately on January 29, 2013 (ECF No. 18, ex. G at 13), the Colorado Court of Appeals on March 11, 2013, entered an order (ECF No. 18, ex. F) in which it noted Mr. Gordon appeared to be appealing from orders that denied the petitions for rehearing but "did not rule upon the actual merits of any substantive postconviction claim." ECF No. 18, ex. F at 2. Because orders denying rehearing petitions would be nonfinal and nonappealable, the Colorado Court of Appeals directed Mr. Gordon to show cause why the appeal should not be dismissed. ECF No. 18, ex. F at 3.
Mr. Gordon's response to the show-cause order (ECF No. 18, ex. E) failed to satisfy the Colorado Court of Appeals. On April 11, 2013, the state appeals court entered an order dismissing the appeal for lack of "a final order... from which an appeal may be taken." ECF No. 18, ex. D at 2. Mr. Gordon then filed "Interlocutory Appeals" in the Colorado Supreme Court (ECF No. 18, ex. C at 3-6), which the state supreme court treated as a petition for writ of certiorari from the April 11, 2013, state appeals court order (ECF No. 18, ex. C), and on January 27, 2014, denied the certiorari petition. ECF No. 18, ex. B at 2.
On February 7, 2014, Mr. Gordon filed his original habeas corpus application (ECF No. 1) in this Court. On February 24, 2014, he filed an amended application (ECF No. 5), and on March 5, 2014, he filed the second and final amended application (ECF No. 8).
In the second and final amended habeas corpus application, Mr. Gordon asserts two claims verbatim as follows:
1. Denied due process: On July 4, 1992, Petitioner was arrested on (DUI) and stalking in the State of Nebraska, and only advised of those charges on the 6th of July 1992, first appearance, held for 37 days without counsel to obtain a confession or other evidence[, ] an unnecessary delay in presentment in violation of criminal procedure Rule 5(a); (quote, Riverside v. McLaughlin , 500 U.S. 44, 111, S.Ct. 1661, 114 L.Ed.2d 49 (1991) (quoting, ...