United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Melvin Keith Williams, is a prisoner in the custody of the Colorado Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr. Williams 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 in Denver District Court case number 05CR644.
On July 21, 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 September 10, 2014, Respondents filed their Pre-Answer Response (ECF No. 14) arguing that the Application is untimely and that Mr. Williams' claims are unexhausted and procedurally barred. Mr. Williams has not filed a reply to the Pre-Answer Response despite being given an opportunity to do so.
The Court must construe the Application liberally because Mr. Williams 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.
On May 11, 2006, Mr. Williams agreed to plead guilty to one count of kidnapping and one count of sexual assault. ( See ECF No. 14-1 at 11.) On July 26, 2006, he filed a motion to withdraw the guilty plea. ( See id. ) On August 4, 2006, the trial court denied Mr. Williams' motion to withdraw his guilty plea and sentenced him to an indeterminate term of thirty-five years to life in prison. ( See id. ) Although Mr. Williams filed a direct appeal, he later filed a motion to dismiss the appeal. On February 1, 2008, the Colorado Court of Appeals dismissed the appeal. ( See ECF No. 14-2 at 1.) The mandate issued on March 21, 2008. ( See id., ECF No. 14-1 at 10.)
On September 18, 2008, Mr. Williams filed in the trial court his first postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. ( See id. at 9.) On September 29, 2008, the trial court denied the first Rule 35(c) motion. ( See id. ) On July 7, 2009, Mr. Williams filed a notice of appeal from the trial court's order denying the first Rule 35(c) motion. ( See ECF No. 14-3.) On October 15, 2009, the Colorado Court of Appeals dismissed Mr. Williams' appeal as untimely. ( See ECF No. 14-5.)
On December 22, 2010, Mr. Williams filed in the trial court his second postconviction Rule 35(c) motion, which was denied on December 28, 2010. ( See ECF No. 14-1 at 8.) He did not appeal.
On September 23, 2011, and December 11, 2013, Mr. Williams filed in the trial court two more postconviction Rule 35(c) motions. ( See id. ) The trial court denied those motions on February 12, 2014, as untimely and successive. ( See id. at 7.) Mr. Williams did not appeal.
Finally, on January 21, 2014, Mr. Williams filed in the trial court a postconviction motion to correct an illegal sentence pursuant to Rule 35(a) of the Colorado Rules of Criminal Procedure. ( See id. at 8.) The trial court denied the postconviction Rule 35(a) motion on March 26, 2014. ( See id. at 7.) Mr. Williams did not appeal.
The Application was filed on July 7, 2014. Mr. Williams asserts three claims for relief contending counsel was ineffective by failing to advise him he was pleading guilty to an offense that would result in a life sentence (claim one), he was denied his Sixth Amendment right to trial by an impartial jury of his peers (claim two), and his Fourteenth Amendment rights were violated when the trial court failed to rule on his motion to withdraw his guilty plea and told him to address the issue in a postconviction Rule 35(c) motion. As noted above, the record before the Court demonstrates that the trial court denied Mr. Williams' motion to withdraw his guilty plea at his sentencing hearing.
Respondents first argue that the Application is barred by the one-year limitation period in 28 U.S.C. § 2244(d). That statute 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 ...