United States District Court, D. Colorado
BRIAN M. GROSS, Applicant,
BERRY GOODRICH, Warden BCCF, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Brian M. Gross, is a prisoner in the custody of the Colorado Department of Corrections (CDOC) at Intervention Community Corrections Services in Pueblo, Colorado. Mr. Gross 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) challenging the validity of his conviction in case 04CR225 in the Pueblo County District Court. Mr. Gross has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On July 2, 2014, Magistrate Judge Boyd N. Boland ordered Respondents to file a pre-answer response and address the affirmative defenses of timeliness and exhaustion of state-court remedies. On July 31, 2014, Respondent filed a response (ECF No. 17). Although Mr. Gross was given the opportunity to file a reply, he did not do so within the time allowed.
The Court must construe the Application liberally because Mr. Gross is a pro se litigant. 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 action will be dismissed for lack of jurisdiction.
Mr. Gross previously sought habeas corpus relief in this Court pursuant to § 2254 challenging the validity of the same state court conviction and sentence. See Gross v. Davis, No. 12-cv-01041-LTB (D. Colo. April 18, 2012). The Court may take judicial notice of its own records and files that are part of the Court's public records. See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979).
In 2005, Mr. Gross pled guilty to class three felony theft pursuant to a deferred judgment and sentence agreement. (ECF No. 17-1 at 3-4, 21-22). Pursuant to the agreement, his guilty plea would be withdrawn and the conviction would not be entered if Mr. Gross successfully completed a four year term of supervision. ( Id. at 3-4). Mr. Gross violated the terms of his supervision, however, and on July 6, 2007, the trial court entered judgment on the conviction and sentenced him to four years of probation. ( Id. at 3-4, 18). Mr. Gross later violated the terms of his probation, and on May 6, 2009, the trial court revoked the probationary sentence and sentenced him to four years in the custody of CDOC. ( Id. at 3-4, 15).
On September 28, 2009, Mr. Gross filed a motion for reconsideration, requesting a reduction of sentence. (ECF No. 17-1 at 14). On October 20, 2009, the trial court denied the request, and Mr. Gross did not file an appeal. On March 10, 2010, Mr. Gross filed a second motion for reconsideration, which the trial court denied. Mr. Gross did not file an appeal. ( Id. ).
On March 14, 2011, Mr. Gross then filed a postconviction motion pursuant to Colorado Rule of Criminal Procedure 35(c). (ECF No. 17-1 at 14). The trial court denied the motion on March 22, 2011. ( Id. ). Mr. Gross filed an appeal, and the Colorado Court of Appeals dismissed the appeal as untimely on January 27, 2012. ( Id. at 11).
On November 17, 2011, Mr. Gross filed a second postconviction motion, which the trial court denied on November 29, 2011. (ECF No. 17-1 at 12). Mr. Gross filed an appeal, and the Colorado Court of Appeals dismissed the appeal with prejudice on April 26, 2012. (ECF No. 17-1 at 11).
On April 18, 2012, Mr. Gross filed a habeas corpus application pursuant to § 2254 in Case No. 12-cv-01041-LTB. The application was denied and the action was dismissed as barred by the one-year limitation period in 28 U.S.C. § 2244(d). See ECF No. 13 in No. 12-cv-01041-LTB. Mr. Gross did not appeal.
On May 7, 2014, Mr. Gross filed a third postconviction motion in the state trial court. (ECF No. 17-1 at 10). The trial court denied the motion, and Mr. Gross did not appeal. ( Id. ).
The Court has examined the records for No. 12-cv-01041-LTB and finds that Mr. Gross previously challenged the validity of the same conviction he challenges here. Therefore, the Court finds that the instant application is a second or successive application subject to the restrictions on filing a second or successive application in § 2244(b).
Pursuant to 28 U.S.C. § 2244(b)(3)(A), Mr. Gross must apply to the Tenth Circuit for an order authorizing this Court to consider his second or successive habeas corpus application. See Case v. Hatch, No. 731 F.3d 1015, 1026 (10th Cir. 2013); see also In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam). Section 2244 requires an applicant to pass through two gates. Case, 731 F.3d at 1026-27. If the circuit court finds that the applicant makes a prima facie showing that the application satisfied the requirements of § 2244(b), the applicant may pursue a claim in district court. Id. The second gate requires the applicant to back up the prima facie showing at the district court level with actual evidence to show he can meet this standard. Id. Thus, gate one is at the circuit court level where a preliminary assessment occurs based on the application, and gate two is at the district court level where a record is made and a final assessment occurs. Id. at 1029.
However, in the absence of a Tenth Circuit order authorizing this Court to consider a second or successive habeas corpus application, the Court lacks jurisdiction to consider the merits of the claims asserted in a second or successive § 2254 application. See Cline, 531 F.3d at 1251. An applicant seeking authorization to file a second or successive application for a writ of habeas corpus pursuant to § 2254 must demonstrate that any claim he seeks to raise is based on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, " 28 U.S.C. § 2244(b)(2)(A); or that "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence" and "the facts underlying the claim, if proven and viewed in light of the evidence as a whole, ...