United States District Court, District of Colorado
ORDER DISMISSING APPLICATION IN PART AND DIRECTING ANSWER
William J. Martinez, United States District Judge.
Applicant, Ira Miner, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the correctional facility in Sterling, Colorado. On November 14, 2013, Mr. Miner filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging his convictions and sentence in Jefferson County, Colorado, district court case number 06CR454.
On November 15, 2013, Magistrate Judge Boyd N. Boland entered an order (ECF No. 3) directing 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 December 16, 2013, after being granted an extension of time, Respondents filed their pre-answer response (ECF No. 9).
On December 26, 2013, Mr. Miner filed both a motion (ECF No. 10) for an extension of time to file a reply to the pre-answer response and a motion (ECF No. 11) to amend the habeas corpus application providing the amendments he wished to make to claims seven, eight, nine, and ten. On December 27, 2013, Magistrate Judge Boyd N. Boland entered a minute order (ECF No. 12) granting the motion to amend the habeas corpus application. However, Mr. Miner was informed he would not be permitted to amend his application in a piecemeal manner. Instead, he would be allowed thirty days in which to submit a final amended application on the proper, Court-approved form for filing an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 that contained all the claims he wished to assert in this action. The December 27 minute order warned Mr. Miner that failure to do so within the time allowed would result in the Court proceeding with the Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) he originally filed on November 14, 2013, and the pre-answer response (ECF No. 9) Respondents submitted on December 16, 2013.
Applicant was directed to obtain the Court-approved form for filing an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (with the assistance of his case manager or the facility’s legal assistant), along with the applicable instructions, at www.cod.uscourts.gov, and to use that form in filing the final amended application. The motion (ECF No. 10) filed on December 26, 2013, for an extension of time to file a reply to the pre-answer response (ECF No. 9) filed on December 16, 2013, was denied because Applicant was being given the opportunity to file a completely amended application.
On January 24, 2014, Mr. Miner filed an amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 13) challenging the validity of his conviction and sentence in Jefferson County District Court case number 06CR454. On January 27, 2014, Magistrate Judge Boland entered an order (ECF No. 14) directing Respondents to file a second pre-answer response to the final amended application that was 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 intended to raise either or both of those defenses in this action. On February 10, 2014, Respondents filed their response (ECF No. 15) to the second order for a pre-answer response, utilizing exhibits A through J submitted as part of the original pre-answer response (ECF No. 9). On March 26, 2014, after being granted an extension of time, Mr. Miner filed a reply (ECF No. 19). On April 16, 2014, Mr. Miner filed an addendum (ECF No. 20) to the reply.
The Court must construe Mr. Miner’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 habeas corpus action in part.
Following a jury trial, Mr. Miner was convicted in Jefferson County District Court case number 06CR454 of attempted first-degree murder (after deliberation) and first-degree assault, both second-degree felonies, and robbery, a third-degree felony. ECF No. 9, ex. C, attachment A (presentence report) at 14. He is serving a total sentence of forty-eight years, two concurrent thirty-two year sentences on the attempted murder and assault charges and a consecutive sixteen-year sentence on the robbery charge. ECF No. 15 at 2. On April 15, 2010, the Colorado Court of Appeals affirmed his conviction and sentence on direct appeal. ECF No. 9, ex. H (People v. Miner, No. 07CA0488 (Colo. Ct. App. Apr. 15, 2010) (unpublished) (Miner I)). On August 9, 2010, the Colorado Supreme Court denied his petition for writ of certiorari. ECF No. 9, ex. F.
On November 12, 2010, Mr. Miner filed in the trial court a combination motion for sentence reconsideration pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure and reduction of mandatory sentence pursuant to Colo. Rev. Stat. § 18-1.3-406(1)(a), which the trial court denied on December 7, 2010. ECF No. 9, ex. A (state court register) at 3. Mr. Miner did not appeal.
On May 19, 2011, he filed a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure, which the trial court denied without a hearing on June 22, 2011. ECF No. 9, ex. A at 3. On January 17, 2013, the Colorado Court of Appeals affirmed. ECF No. 9, ex. D (People v. Miner, No. 11CA1451 (Colo. Ct. App. Jan. 17, 2013) (unpublished) (Miner II)). On August 26, 2013, the Colorado Supreme Court denied certiorari review. ECF No. 9, ex. B.
As previously stated, on November 14, 2013, Mr. Miner filed his original § 2254 habeas corpus application (ECF No. 1) in this Court. After Respondents filed their initial pre-answer response (ECF No. 9), the Court allowed Applicant to submit an amended application, which he filed on January 24, 2013 (ECF No. 13), and on January 27, 2014, entered an order (ECF No. 14) directing Respondents to file a second pre-answer response. On February 10, 2014, Respondents filed their response (ECF No. 15) to the second order for a pre-answer response. Respondents concede the instant action is filed within the one-year limitation period in 28 U.S.C. § 2244(d). Therefore, the Court need not address further the one-year limitation period.
Mr. Miner asserts three claims that Respondents divide into numerous subclaims as follows:
As claim 1, Mr. Miner argues that the trial court “did not have jurisdiction” over the case (ECF No. 13 at 5) because:
(a) Applicant was arrested at gunpoint and “in fear of physical retribution” by arresting officers, such that any statements he made during the arrest were coerced (id.);
(b) Arresting officers failed to advise him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), prior to asking for his consent to search his home (ECF No. 13 at 5);
(c) The search of his home was without a warrant, and the consent of his wife was coerced “under Color of Authority” in violation of constitutional rights and a state statute (id.);
(d) There was insufficient evidence that he intended to kill the victim; the murder charge was based on the victim’s age “and other prejudicial assumptions” (ECF No. 13 at 6); and
(e) The victim’s identification of Applicant was “coerced” when police told her that defendant was her attacker (id.).
As claim 2, Mr. Miner aggregates different theories and factual allegations as follows:
(a) Ineffective assistance of counsel because trial counsel:
(i) Had no experience representing criminal defendants (ECF No. 13 at 7);
(ii) Made “no real attempt” to devote the time necessary to communicate adequately with him (id.);
(iii) Failed to introduce “key elements and specific facts” that would have influenced the jury in his favor; the jury was “left ignorant” of “most of [Applicant’s] information” (id.);
(iv) Failed to conduct sufficient pretrial investigation to:
(1) seek exclusion of “any mention” of the word “homicide” from the trial (id.);
(2) discover a videotaped confession made in the absence of counsel (id.);
(3) request an evaluation of the victim’s mental condition “to test the credibility of her statements and . . . what actually happened at the scene” (ECF No. 13 at 7-8);
(4) confront the victim “about [the] alleged offense(s), ” which would have established the absence of an intent to kill (ECF No. 13 at 7-8 & n.1);
(v) Requested continuances and delays, resulting in the deprivation of his speedy trial right under 18 U.S.C. § 3161(a) (ECF No. 13 at 8); and
(vi) Cumulative error based upon ineffective assistance of counsel, prosecutorial misconduct, and trial court error (ECF No. 13 at 8 n.1);
(b) Insufficient evidence that Applicant was “involved in anything more than a simple theft” (ECF No. 13 at 9);
(c) Prosecutorial misconduct:
(i) In charging attempted first-degree murder solely for the purpose of “aggrandizement in a simple aggravated theft case” (id.);
(1) withholding information that juror W. had mentioned to the prosecution, after trial, something about looking at Gray’s Anatomy during trial (id.);
(2) subsequently having an ex parte conversation with juror W. (id.); and
(3) failing to seek a mistrial based on juror W.’s alleged misconduct (id.);
(d) Judicial bias, in that the trial judge:
(i) Erroneously ruled that Applicant validly waived his Miranda rights prior to his police interview, even though Applicant did not understand that a lawyer would be appointed for him at state expense if he requested one, thereby permitting introduction of Applicant’s videotaped statement made in the absence of counsel (ECF No. 13 at 9-10);
(ii) Questioned jurors individually, from the bench, about possible exposure to extraneous information as a result of juror W.’s disclosure, without permitting Applicant (or the prosecution) to examine or cross-examine directly and confront the jurors, and instead “censored” questions submitted by the parties (ECF No. 13 at 10-11);
(iii) Colluded with the prosecution to overlook juror W.’s alleged misconduct (ECF No. 13 at 9-10);
(iv) Erroneously prohibited the parties from contacting jurors to investigate their possible exposure to extraneous information (ECF No. 13 at 10-11); and
(v) Failed to declare a mistrial upon learning that any juror might have consulted extraneous information (ECF No. 13 at 11);
(e) The jury was exposed to extraneous information, as evidenced by a comment by juror W. in a post-trial discussion with one of the prosecutors making reference to looking at Gray’s Anatomy (ECF No. 13 at 9).
Claim three asserts violations of the Fourth Amendment in that:
(a) Applicant was in “physical and psychological distress” and did not consent to the search at the time it was conducted (ECF No. 13 at 11); and
(b) Officers obtained consent to search from Applicant’s wife by being “deliberately deceitful” and “us[ing] pressure” on her to gain entry (id.);
Claim 3 also complains that all evidence seized during the search of his home “was in violation of the Chain of Custody, ” and that the search essentially ...