United States District Court, D. Colorado
ADOLPH Q. SHERROD, Applicant,
WARDEN BONNER, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Adolph Q. Sherrod, is a prisoner in the custody of the Colorado Department of Corrections at the Kit Carson Correctional Center in Burlington, Colorado. Mr. Sherrod has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) ("the Application") challenging the validity of his conviction and sentence in El Paso County District Court case number 99CR205.
On January 17, 2014, Magistrate Judge Boyd N. Boland ordered Respondents to file a Pre-Answer Response limited to raising 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 intend to raise either or both of those defenses in this action. On March 11, 2014, Respondents filed a Pre-Answer Response (ECF No. 11) arguing that the Application should be denied because the claims Mr. Sherrod asserts are unexhausted and procedurally barred. On May 8, 2014, Mr. Sherrod filed a Reply to the Respondents' Pre-Answer Response (ECF No. 14).
The Court must construe the Application and other papers filed by Mr. Sherrod 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 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.
The following description of Mr. Sherrod's criminal case is taken from the opinion of the Colorado Court of Appeals affirming the trial court's order denying a postconviction motion:
Defendant was charged with crimes related to a domestic violence incident in which he verbally and physically assaulted his live-in girlfriend.
A jury convicted defendant of two counts of third degree sexual assault and related crime of violence counts, two counts of first degree assault and related crime of violence counts, two counts of second degree assault and related crime of violence counts, three counts of child abuse, and one count of menacing.
The trial court merged the first degree assault convictions, and also merged the second degree assault convictions into the first degree assault convictions as lesser included offenses. The court sentenced defendant to consecutive sixteen-year to life terms for each third degree sexual assault conviction, a consecutive thirty-two-year term for the first degree assault conviction, a consecutive six-year term for the menacing conviction, and concurrent one-year terms for each child abuse conviction.
On direct appeal, a division of this court concluded that the third degree sexual assault convictions should merge and thus, remanded the case for resentencing. People v. Sherrod, (Colo.App. No. 03CA1105, May 28, 2009) (not published pursuant to C.A.R. 35(f)).
On remand, the trial court merged the third degree sexual assault convictions and resentenced defendant to a term of sixteen years to life for one count of third degree sexual assault. All other sentences remained the same.
People v. Sherrod, No. 10CA1778 (Colo.App. Mar. 15, 2012) (unpublished) (ECF No. 11-9 at 2-3).
Mr. Sherrod asserts three claims for relief in the Application. He first claims that the trial court abused its sentencing discretion by imposing consecutive rather than concurrent sentences for third degree sexual assault and first degree assault because those offenses involved only one victim, occurred during the same criminal episode, and are supported by identical evidence. Mr. Sherrod's second claim is a double jeopardy claim in which he contends that the convictions for third degree sexual assault and first degree assault must merge. Mr. Sherrod alleges in claim three that he is entitled to the benefits of amendatory legislation that mitigates the penalties for certain crimes when relief is sought before finality has attached to the judgment of conviction. Mr. Sherrod argues within claim three that the trial court failed to apply a heat of passion mitigator to his conviction for first degree assault.
Respondents argue that Mr. Sherrod's first and third claims are not federal constitutional claims and that, even if those claims do raise federal constitutional issues, the claims are procedurally defaulted. Respondents also argue that claim two is procedurally defaulted. Respondents do not argue that the Application should be dismissed as untimely.
The Court agrees that claims one and three in the Application are state law claims that do not raise federal constitutional issues. Mr. Sherrod argues in support of his first claim only that the trial court improperly imposed consecutive sentences for third degree sexual assault and first degree assault as a matter of Colorado state law. He does not argue that his federal constitutional rights were violated because the trial court imposed consecutive sentences for third degree sexual assault and first ...