United States District Court, District of Colorado
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.
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 ...