United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Norman Adkins, is a prisoner currently incarcerated at the Fremont Correctional Facility. Mr. Adkins initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). He is challenging a judgment of conviction imposed by the Clear Creek County District Court in case number 04CR40.
On July 1, 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. After Judge Boland granted an extension of time to file a pre-answer response, Respondents filed their Pre-Answer Response (ECF No. 13) arguing that the application is untimely, that claim seven fails to state a cognizable habeas claim, and that claims one, two, four, and eight are unexhausted and procedurally defaulted. Although Mr. Adkins was given the opportunity to file a reply, he did not do so within the time allowed.
The Court must construe the Application filed by Mr. Adkins 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 as barred by the one-year limitation period in 28 U.S.C. § 2244(d).
On August 5, 2005, Mr. Adkins was convicted by a jury of sexual assault on a child by one in a position of trust and sexual assault on a child. ( See ECF No. 13-1 at 9-10; ECF No. 13-4 at 2.) The state district court imposed indeterminate sentences of twenty years to life for the sexual assault on a child by one in a position of trust conviction and ten years to life for the sexual assault on a child conviction, to be served concurrently. (ECF No. 13-4 at 2.)
On July 3, 2008, the Colorado Court of Appeals affirmed the judgement. (ECF No. 13-4.) The Colorado Supreme Court initially granted certiorari review ( see ECF No. 13-6), but on October 21, 2009, following briefing and oral arguments, denied certiorari as having been improvidently granted. (ECF No. 13-7.)
On March 3, 2010, Mr. Adkins filed a motion for sentence reconsideration, which the state district court denied on November 12, 2010. (ECF No. 13-1 at 7-8.) Mr. Adkins did not appeal.
On November 23, 2010, Mr. Adkins filed a motion for postconviction relief under Colo. R. Crim. P. 35(c). (ECF No. 13-1 at 7). On December 27, 2010, the state district court denied the motion. ( Id. ). Mr. Adkins did not appeal.
On September 26, 2011, Mr. Adkins filed a second motion for postconviction relief. (ECF No. 13-1 at 7.) The state district court denied the motion and the Colorado Court of Appeals affirmed on May 23, 2013. (ECF No. 13-9.) The Colorado Supreme Court denied certiorari review on February 3, 2014. (ECF No. 13-11)
Mr. Adkins initiated the instant action on June 18, 2014 by filing his § 2254 Application. ( See ECF No. 4). He asserts the following eight claims:
(1) trial counsel rendered ineffective assistance of counsel by failing to obtain evidence of an alternate suspect;
(2) law enforcement failed to investigate evidence of an alternate suspect;
(3) there was a failure to introduce excluded evidence of an alternate suspect;
(4) the trial court erred by finding the four-year-old victim ...