United States District Court, District of Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior Judge
Applicant Nick Raul Medina is in the custody of the Colorado Department of Corrections and currently is incarcerated at the Sterling Correctional Facility in Sterling, Colorado. Applicant has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Because it was not clear whether Applicant is challenging the execution or the validity of his sentence, on November 11, 2014, Magistrate Judge Boyd N. Boland directed Respondents to brief the issue and to address the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). Respondents submitted a Response, ECF No. 13, on November 24, 2014. Applicant filed a Reply, ECF No. 14, to the Pre-Answer Response on December 10, 2014, and provided exhibits in support of the Application, ECF No. 15, on December 24, 2014.
The Court must construe liberally the Application and Reply 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 does not “assume the role of advocate for the pro se litigant.” See Hall, 935 F.2d at 1110.
First, Respondents contend that Applicant is challenging the validity of his conviction and sentence and not the execution of his sentence. ECF No. 13 at 3-5. Applicant agrees. ECF No. 14 at 1. The Court, therefore, construes the action as filed pursuant to 28 U.S.C. § 2254 and will address the affirmative defenses of timeliness under 28 U.S.C. § 2244(d), and if necessary of exhaustion of state court remedies.
Applicant pled guilty to one count of contributing to the delinquency of a minor and one count of sexual assault in Case No. 07CR1679 in the Jefferson County District Court, ECF No. 14 at 2; Pre-Answer Resp., ECF No. 13-1, Ex. A at 12-13, and was sentenced to a total of six years of incarceration on March 31, 2008, Pre-Answer Resp., ECF No. 13-1, Ex. A, at 7-8.
Respondents assert that Applicant did not file a direct appeal but filed a timely motion for sentence reconsideration on July 29, 2008. ECF No. 13 at 2; ECF No. 13-1 at 7. The motion was denied on September 8, 2008, but Applicant did not appeal the motion. See ECF No. 13 at 2; ECF No. 13-1 at 7. Applicant then filed a motion to modify his sentence on November 1, 2012, which was denied on November 15, 2012, and Applicant did not appeal the denial. Id. Applicant’s next postconviction filing was on September 25, 2014, when he filed a Colo. R. Crim. P. 35(a) postconviction motion, which was denied on October 8, 2014, and he did not appeal the denial. Id. Finally, on October 15, 2014, Applicant filed a Colo. R. Crim. P. 35(c) postconviction motion, which as of November 24, 2014, the date Respondents filed their Response, was pending. Id.
Respondents argue that this action is untimely under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). Applicant does not disagree. See ECF No. 14 at 4. Section 2244(d) provides as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of–
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...