United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Joel Stovall, is in the custody of the Colorado Department of Corrections at the Arkansas Valley Correctional Facility in Ordway, Colorado. Applicant initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 on June 18, 2014. Applicant claims he was denied effective assistance of counsel and was subjected to a coerced plea and an excessive sentence. Application, ECF No. 1, at 5-7.
On July 8, 2014, Magistrate Judge Boyd N. Boland directed Respondents to file a Pre-Answer Response 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). Respondents submitted a Response on July 22, 2014. Applicant did not reply to the Pre-Answer Response.
The Court must construe liberally the Application because Applicant 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 does not "assume the role of advocate for the pro se litigant." See Hall, 935 F.2d at 1110.
Applicant pled guilty on November 2, 2001, to first degree murder and at least nineteen other lesser charges in Case No. 01CR409 in the Fremont County District Court in Cañon City, Colorado, Application at 2; Pre-Answer Resp., App. A, ECF No. 10-1, at 1-18, and was sentenced to life without parole plus 896 years on the same day, Application at 2; Pre-Answer Resp., ECF No. 10-2, App. A, at 5. The prosecution appealed the trial court's denial of their motion for restitution, which was denied by the Colorado Court of Appeals (CCA) as untimely. Pre-Answer Resp. ECF No. 10, at 3. The Colorado Supreme Court (CSC) granted a writ of certiorari review, but dismissed the certiorari proceeding as "improvidently granted" on November 18, 2003. Pre-Answer Resp., App. F, ECF No. 10-7.
Applicant then filed a Colo. R. Crim. P. 35(c) postconviction motion on June 6, 2007, see Pre-Answer Resp., App. A, ECF No. 10-2, at 1, and a Colo. R. Crim. P. 35(a) postconviction motion while the Rule 35(c) postconviction motion was pending, which was denied on January 21, 2009, see id. ECF No. 10-1, at 24-25. Subsequently, the Rule 35(c) postconviction motion was denied on October 9, 2009. Id. at 20-21. Applicant filed an appeal; the CCA affirmed the denial; and the CSC denied certiorari review on November 12, 2013. Id., Apps. B and D, ECF Nos. 10-3 and 5.
Respondents argue that this action is untimely under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). Section 2244(d) provides as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...