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Maxsween v. Miller

United States District Court, D. Colorado

October 27, 2014

MICHAEL FRANCIS MAXSWEEN, Applicant,
v.
MICHAEL MILLER, Superintendent, Crowley County Correctional Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant, Michael Francis Maxsween, is a prisoner at the Crowley County Correctional Facility in Olney Springs, Colorado. Mr. Maxsween filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 4) challenging the judgment of conviction imposed by the Mesa County District Court in case number 00CR115.

On May 14, 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 response, Respondents filed their Pre-Answer Response (ECF No. 18) arguing that the application is untimely and the claims are procedurally defaulted. Judge Boland granted an extension of time to reply to the Pre-Answer Response, and Mr. Maxsween filed a Reply (ECF No. 21). On July 29, 2014, Judge Boland ordered Respondents to supplement the Pre-Answer Response. ( See ECF No. 22.) Judge Boland granted an extension of time, and Respondents filed their Supplement to Pre-Answer Response (ECF No. 26). Judge Boland granted two extensions of time to reply to the Supplement, and Mr. Maxsween filed his Reply to the Supplemented Pre-Answer Response (ECF No. 31) on October 16, 2014.

The Court must construe Mr. Maxsween's filings 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 under 28 U.S.C. § 2244(d).

I. Background

On July 8, 2002, Mr. Maxsween was convicted by a jury of sexual assault on a child, sexual assault on a child while in a position of trust, and sexual assault on a child as part of a pattern of abuse. ( See ECF No. 18-4 at 4.) The state district court imposed indeterminate sentences of six years to life, four years to life, and ten years to life, to be served concurrently. (ECF No. 18-1 at 18-19.)

On May 27, 2004, the Colorado Court of Appeals affirmed the judgment but vacated the sentence and remanded for resentencing. (ECF No. 18-4 at 4, 20-22.) On May 26, 2005, the state district court resentenced Mr. Maxsween to concurrent sentences of eight years to life, two years to life, and eight years to life. (ECF No. 18-1 at 16.) Mr. Maxsween did not appeal.

On January 11, 2006, Mr. Maxsween filed a motion for postconviction relief under Colo. Crim. P. 35(c). (ECF No. 18-1 at 15; ECF No. 18-9 at 2.) On August 14, 2006, the state district court denied the motion. (ECF No. 18-1 at 14.) Mr. Maxsween then filed a motion purportedly pursuant to Colo. R. Civ. P. 60(b) on December 27, 2006. ( Id. ) The state district court treated the motion as a Rule 35(c) motion, denied as successive all the claims Mr. Maxsween had previously raised in his first postconviction motion, and denied the two new claims - that he was entitled to a proportionality review of his sentence and that he could not be sentenced under the Colorado Sex Offender Lifetime Supervision Act of 1998 - on the merits. (ECF No. 18-9 at 2-3.)

On March 22, 2007, Mr. Maxsween filed a notice of appeal, challenging the state district court's orders denying his January 2006 motion and his December 2006 motion. (ECF No. 18-1 at 13; ECF No. 18-7.) On May 22, 2008, the Colorado Court of Appeals dismissed the appeal of the January 2006 postconviction motion as untimely, and affirmed the state district court's order denying his December 2006 motion because the motion was properly treated as a postconviction motion and Mr. Maxsween's claims were successive because they either were or could have been raised in his first motion. (ECF No. 18-9 at 3-4.) The Colorado Supreme Court denied certiorari review on September 2, 2008. (ECF No. 18-11.)

From September 17, 2008, through May 11, 2010, Mr. Maxsween filed numerous documents with the state district court, including letters of inquiry, a "Notice... of Fault and Opportunity to Cure and Contest Acceptance, " an "Affidavit of Notice of Dishonor Default and of Res Judicate, " and a "Notice/Conditional Acceptance and Demand in Admiralty." ( See ECF No. 18-1 at 11-13.) The state district court denied all of these requests, finding that it was "under no legal obligation to respond to interrogatories or offer legal opinions when nothing is pending before the court, " and that the filings had no legal basis and were largely nonsense. ( Id.)

On June 14, 2010, Mr. Maxsween filed a motion for appointment of conflict-free counsel in postconviction proceedings and a motion for free transcripts. (ECF No. 18-1 at 11.) The court denied both motions. ( Id. ) Mr. Maxsween and his parents continued to file several documents with the state district court. ( Id. )

On April 20, 2011, Mr. Maxsween filed a motion for postconviction relief under Colo. Crim. P. 35(a), a motion for postconviction relief under Colo. Crim. P. 35(c), and a request for counsel. (ECF No. 18-1 at 10-11; ECF No. 18-13 at 3.) On June 9, 2011, the state district court denied both postconviction motions but granted Mr. Maxsween's request for counsel for purposes of appeal. (ECF No. 18-1 at 10; ECF No. 18-13 at 4.) On April 25, 2013, the Colorado Court of Appeals affirmed the state district court's order denying his postconviction motions. (ECF No. 18-13.) On December 9, 2013, the Colorado Supreme Court denied certiorari review. (ECF No. 18-15).

Mr. Maxsween initiated the instant action on January 21, 2014, by submitting a "Motion for Leave to File for Extension of Time." (ECF No. 1.) On March 25, 2014, Mr. Maxsween filed his § 2254 Application. ( See ECF No. 4.) He asserts the following six claims:

(1) Applicant's due process rights were violated because the charging document failed to provide fair notice;
(2) Applicant's constitutional right against double jeopardy was violated because he was charged with multiplicity in the charging document and found guilty for the same conduct and incident;
(3) Applicant was deprived of the right to a full and fair sentencing hearing;
(4) Applicant's constitutional rights were violated when the postconviction court erroneously denied appointment of postconviction counsel when his claims had arguable merit;
(5) Applicant's constitutional rights were violated when the postconviction court erroneously denied his right ...

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