United States District Court, D. Colorado
ORDER TO DISMISS IN PART
WILLIAM J. MARTINEZ, District Judge.
Applicant Anthony Marquez is a prisoner in the custody of the Colorado Department of Corrections at the Arkansas Valley Correctional Facility in Ordway, Colorado. Mr. Marquez has filed a pro se 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 Denver District Court case number 05CR3500. On June 20, 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 intend to raise either or both of those defenses in this action. On July 7, 2014, Respondents filed a Pre-Answer Response (ECF No. 11) arguing that each claim in the Application should be dismissed. On July 23, 2014, Mr. Marquez filed "Applicant's Reply to Respondent[s'] Pre-Answer Response" (ECF No. 12).
The Court must construe the Application and other papers filed by Mr. Marquez 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 in part.
Mr. Marquez was convicted by a jury of theft, theft from an at-risk victim, possession of a controlled substance, and possession of a controlled substance with intent to distribute. According to the Colorado Court of Appeals, the evidence at trial established the following facts:
Defendant defrauded a seventy-six year-old man (the victim) of approximately seventy thousand dollars by telling him, falsely, that he needed money for his ill mother. Over several months, the victim made numerous withdrawals from his bank account and provided the funds to defendant. At trial, the victim was unable to recall many of the withdrawals he had made, or to identify defendant. However, defendant's identity as the perpetrator was established by a bank employee who testified that she had called the police after defendant accompanied the victim to the bank, took possession of more than nine thousand dollars in cash which the victim had withdrawn from his account, and falsely stated that the victim was his father. In addition, a police officer testified that the victim had identified defendant as the person to whom he had given large sums of money.
An investigator testified that he obtained a warrant for defendant's arrest and went to an apartment building with several police officers. As he approached, the investigator encountered defendant, who was wearing a pair of black pants with red stripes. Defendant ran inside and changed his pants, but he soon surrendered while attempting to flee. The investigator then searched the residence and found the red striped pants he had seen defendant wearing. The investigator searched the pants and found more than one hundred and ninety-five grams of crack cocaine, and nearly nine thousand dollars in cash. During a search of the house, one of the officers found a digital scale.
People v. Marquez, No. 06CA1701, slip op. at 4-5 (Colo.App. Mar. 18, 2010) (unpublished) (ECF No. 11-9 at 6-7). The judgment of conviction was affirmed on direct appeal, but the court of appeals determined that the two theft convictions must be merged and that the two controlled substance offenses also must be merged. ( See ECF No. 11-9 at 7-10.) Thus, the court of appeals vacated the conviction for simple possession and remanded the matter with instructions to correct the mittimus to reflect a single conviction for "theft (from an at-risk adult)" and resentence Mr. Marquez for that offense. ( See id. at 10.) On July 19, 2010, the Colorado Supreme Court denied Mr. Marquez's petition for writ of certiorari on direct appeal. ( See ECF No. 11-7.) Pursuant to an amended mittimus issued in March 2011, Mr. Marquez was sentenced as an habitual offender to concurrent terms of forty-eight and sixty-four years in prison.
On April 27, 2011, Mr. Marquez filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. ( See ECF No. 11-1 at 11.) On June 16, 2011, the trial court denied the Rule 35(c) motion without a hearing and without appointing counsel. ( See id. ) The trial court's order denying the Rule 35(c) motion was affirmed on appeal. See People v. Marquez, No. 11CA1569 (Colo.App. Apr. 11, 2013) (unpublished) (ECF No. 11-4). On December 9, 2013, the Colorado Supreme Court denied Mr. Marquez's petition for writ of certiorari in the postconviction Rule 35(c) proceedings. ( See ECF No. 11-2.)
The Application was filed on May 9, 2014, and Mr. Marquez presents five claims for relief. He asserts in claim 1 that the trial court erred in refusing to sever the theft charges from the drug charges in violation of his right to due process. He contends in claim 2 that the evidence was insufficient to support his convictions in violation of his right to due process. Mr. Marquez alleges in claim 3 that he was subjected to double jeopardy because two of the four offenses on which he was convicted are lesser included offenses of the other convictions. He contends in claim 4 that the Colorado Court of Appeals improperly refused to consider the severance claim on direct appeal in violation of his right to due process. Mr. Marquez finally asserts in claim 5 that the trial court improperly denied his postconviction Rule 35(c) motion using the wrong standard and without holding a hearing or appointing counsel.
The Court notes initially that claim 5 may not be raised in this habeas corpus action because there is no federal constitutional right to postconviction review in the state courts. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Thus, a claim of constitutional error that "focuses only on the State's post-conviction remedy and not the judgment which provides the basis for [the applicant's] incarceration... states no cognizable federal habeas claim." Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998); see also Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (noting that petitioner's challenge to state "post-conviction procedures on their face and as applied to him would fail to state a federal constitutional claim cognizable in a federal habeas proceeding"). Mr. Marquez contends in claim 5 only that the trial court improperly denied his postconviction Rule 35(c) motion. Although he may have asserted ineffective assistance of counsel claims in the Rule 35(c) motion, Mr. Marquez does not assert in claim 5 in the Application any argument or claim that counsel was ineffective. Therefore, claim 5 will be dismissed for failure to present a cognizable federal constitutional issue.
Claim 3 also will be dismissed because Mr. Marquez concedes in his reply to the Pre-Answer Response that his double jeopardy claim is moot in light of his resentencing following direct appeal. ( See ECF No. 12 at 5.)
II. ONE-YEAR LIMITATION PERIOD
Respondents concede that this action is not barred by the one-year limitation period ...