United States District Court, D. Colorado
ORDER TO DISMISS IN PART
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Michael Salvatore Parrino, is a prisoner in the custody of the Colorado Department of Corrections at the Fremont Correctional Facility in Cañon City, Colorado. Mr. Parrino has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) ("the Application") challenging the validity of his conviction and sentence in Larimer County District Court case number 00CR996. On August 4, 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. On August 15, 2014, Respondents filed a Pre-Answer Response (ECF No. 8) arguing that claim one is unexhausted, claim two is not cognizable and anticipatorily defaulted, and claim three is anticipatorily defaulted. Respondents concede that the instant action is timely. On September 3, 2014, Mr. Parrino filed "Habeas Applicant's Reply to Respondent's Pre-Show Cause Answer" (ECF No. 9) ("the Reply").
The Court must construe the Application and other papers filed by Mr. Parrino 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 in part.
The factual background of Mr. Parino's crimes and convictions was summarized by the Colorado Court of Appeals in state court postconviction proceedings as follows:
Defendant was convicted of aggravated robbery, three counts of first degree assault of a police officer, first degree criminal trespass, and menacing, arising from an armed robbery of a convenience store. As defendant left the store, he exchanged gunfire with the responding officers. The court sentenced him to four consecutive twenty-two-year terms of imprisonment on the robbery and assault counts, pursuant to section 18-1.3-406, C.R.S. 2012 (formerly § 16-11-309), and to two terms of three years imprisonment on the menacing and trespassing counts, to run concurrently with the consecutive terms. Defendant's convictions and sentences were affirmed on direct appeal.
People v. Parrino, No. 10CA1576, slip op. at 1 (Colo.App. Jan. 3, 2013) (ECF No. 8-4 at 3.) On March 7, 2005, the Colorado Supreme Court denied Mr. Parrino's petition for writ of certiorari on direct appeal. ( See ECF No. 8-11 at 2.)
On June 6, 2005, Mr. Parrino filed in the trial court a postconviction motion pursuant to Colorado Crim. P. Rule 35(c), asserting ineffective assistance of counsel. ( See ECF No. 9-1 at 25; ECF No. 8-8 at 3.) On June 16, 2005, the trial court summarily denied the Rule 35(c) motion. ( See ECF No. 8-10 at 2.) On February 1, 2007, the Colorado Court of Appeals affirmed in part, reversed in part, and remanded with directions. ( See ECF No. 8-8.) The Colorado Court of Appeals concluded that a remand was warranted for the trial court to hold an evidentiary hearing on whether Mr. Parrino's trial counsel was ineffective because he labored under a conflict of interest and to make findings of fact and conclusions of law. ( Id. at 4.)
Mr. Parrino was appointed alternate defense counsel to represent him during the remand proceedings. (ECF No. 8-8 at 8-9; ECF No. 8-4 at 4.) Following an evidentiary hearing on the alleged conflict of interest, the trial court issued a written order denying Mr. Parrino's motion for postconviction relief, finding that Mr. Parrino's ineffective assistance of counsel claims lacked merit. ( See ECF No. 8-7.) The trial court further concluded that even if counsel's performance was deficient, Mr. Parrino failed to show he suffered any prejudice as a result because he failed to prove that the prosecution extended the twenty-five-year plea offer during counsel's representation, that the prosecution would have extended such an offer, or that Mr. Parrino would have accepted such an offer. ( Id. ) Mr. Parrino appealed, and the Colorado Court of Appeals affirmed the trial court's denial of his Rule 35(c) motion on January 3, 2013. ( See ECF No. 8-4.) On August 5, 2013, the Colorado Supreme Court denied Mr. Parrino's petition for writ of certiorari in the state court postconviction proceedings. ( See ECF No. 8-2 at 2.)
On July 25, 2014, Mr. Parrino filed his § 2254 Application asserting three claims for relief. In claim one, Mr. Parrino contends that he received ineffective assistance of trial counsel based upon a financial conflict of interest. (ECF No. 1 at 5, 9-11.) In claim two, he asserts that he received ineffective assistance of postconviction counsel because counsel "deliberately sabotag[ed] my State Evidentiary Hearing." ( Id. at 12-17.) He explains that claim two is not an "official claim" but rather an "exception for a federal evidentiary hearing" in this Court. ( Id. ) In claim two, Mr. Parrino also contends that the prosecution engaged in misconduct during the remand proceedings. ( Id. ) In claim three, Mr. Parrino alleges he is innocent of one of the counts for assault on a peace officer because his conviction for two counts of assault on one peace officer was "duplicitous." ( Id. at 18.)
II. ONE-YEAR LIMITATION PERIOD
Respondents concede that this action is not barred by the one-year limitation period in 28 U.S.C. § 2244(d).
III. EXHAUSTION OF STATE REMEDIES
Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus may not be granted unless it appears that the applicant has exhausted state remedies or that no adequate state remedies are available or effective to protect the applicant's rights. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is satisfied once the federal claim has been presented fairly to the state courts. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the federal issue ...