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Stogsdill v. Ploughe

United States District Court, District of Colorado

January 5, 2015

CHARLES STOGSDILL, Applicant,
v.
PAMELA J. PLOUGHE, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior Judge United States District Court

Applicant is a Colorado Department of Corrections inmate who is incarcerated at the Four Mile Correctional Center in Cañon City, Colorado. Applicant has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, ECF No. 1, challenging his judgment of conviction in Larimer County District Court case number 08CR665. Applicant has been granted leave to proceed pursuant to 28 U.S.C. § 1915.

On October 21, 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/or exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). Respondents submitted their Pre-Answer Response (ECF No. 9) on October 27, 2014. Although given the opportunity, Applicant did not file a reply.

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 should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will deny the Application and dismiss this action.

I. Background

After a jury trial, Applicant was convicted of attempted second-degree murder, felony menacing, four counts of third-degree assault against an at-risk adult, false imprisonment, two crime of violence counts, and multiple counts of violating a protection order. (ECF No. 9-1 at 2; ECF No. 9-6 at 3.) On January 14, 2010, the state trial court sentenced Applicant to 17 ½ years imprisonment. (ECF No. 1 at 2; ECF No. 9-1 at 3; ECF No. 9-8 at 6.) On March 2, 2010, Applicant filed a notice of appeal. (ECF No. 9-8 at 5.)

While the appeal was pending, Applicant filed a Colo.App. R. 21 petition in the Colorado Supreme Court, raising a claim of statutory speedy trial. The Colorado Supreme Court denied the petition on January 24, 2011. (ECF No. 9-3 at 2.)

On May 6, 2011, Applicant filed a Colo. Crim. P. 35(c) postconviction motion alleging newly discovered evidence consisting of the victim’s affidavit recanting her testimony. (ECF No. 9-8 at 5; ECF No. 9-4 at 2.) On June 6, 2011, Applicant filed a renewed motion to dismiss his direct appeal so that he could pursue his postconviction motion in the trial court. (ECF No. 9-2 at 2-3.) On June 29, 2011, the Colorado Court of Appeals dismissed the direct appeal. (ECF No. 9-8 at 5.) On July 27, 2011, the state trial court denied the postconviction motion on the merits. (ECF No. 9-4.) Applicant appealed and on November 29, 2012, the Colorado Court of Appeals affirmed the state trial court’s order denying the postconviction motion. (ECF No. 9-6.)

In August 2013, Applicant sent a letter to the state trial court that was construed as a postconviction motion alleging ineffective assistance of postconviction counsel. (ECF No. 9-7; ECF No. 9-8 at 3.) The state trial court denied the supplemented motion on May 29, 2014. (ECF No. 9-7.) On July 18, 2014, Applicant filed a notice of appeal. (ECF No. 9-8 at 2.) That appeal is still pending.

On September 30, 2014, Applicant filed his § 2254 Application presenting three claims for relief. In claim one, Applicant asserts a violation of his constitutional and statutory right to a speedy trial. In claim two, he alleges newly discovered evidence regarding the victim’s recantation of testimony. Finally, Applicant asserts a claim for ineffective assistance of postconviction counsel.

B. One-Year Limitation Period

Respondents concede that this action is not barred by the one-year limitation period under 28 U.S.C. § 2244(d).

C. Exhaustion of State Remedies

Respondents argue that Applicant’s claims are not cognizable for relief on federal habeas review and that the claims are ...


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