United States District Court, D. Colorado
JOHN R. YELLOWBOY, Applicant,
MICHAEL MILLER, and JOHN W. SUTHERS, The Attorney General of the State of [Colorado], Respondents.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, John R. Yellowboy, is a prisoner in the custody of the Colorado Department of Corrections (CDOC) and is incarcerated at the Crowley County Correctional Facility in Olney Springs, Colorado. He has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. (ECF No. 6). Mr. Yellowboy challenges the validity of his conviction and sentence imposed in the District Court of Larimer County, Colorado. He has paid the $5.00 filing fee.
On October 22, 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 exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). Respondents filed a Pre-Answer Response on October 29, 2014 (ECF No. 12). Applicant filed his Reply (ECF No. 14) on December 11, 2014, after obtaining an extension of time.
The Court must construe liberally the Application filed by Mr. Yellowboy 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 act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the § 2254 Application will be dismissed as time-barred.
I. Background and State Court Proceedings
In September 1989, Mr. Yellowboy was convicted by a jury in Larimer County District Court Case No. 89CR802 of second degree kidnapping, first degree sexual assault, robbery, third degree assault, and a crime of violence. (ECF No. 12-1, at 2-3). On direct appeal, the Colorado Court of Appeals vacated the crime of violence conviction, but otherwise affirmed Applicant's convictions and sentences. See People v. Yellowboy, No. 90CA528 (Colo.App. Jan. 30, 1992) (unpublished) (ECF No. 12-3). Mr. Yellowboy did not seek certiorari review in the Colorado Supreme Court.
In December 1992, Mr. Yellowboy also filed a Colo. Crim. P. Rule 35(b) motion to reduce his sentence, which was denied by the state district court, along with a motion for reconsideration. (ECF No. 12-4). Applicant did not appeal the trial court's orders.
In June 2001, Mr. Yellowboy filed a Colo. Crim. P. Rule 35(a) motion to correct an illegal sentence, which was denied by the state district court. (ECF No. 12-1, at 7). Applicant did not appeal that order. (ECF No. 12-6, at 3).
In February 2008, Mr. Yellowboy filed a state post-conviction motion, pursuant to Colo. Crim. P. Rule 35(a) and (c), attacking his convictions and sentence. (ECF No. 12-6). The Colorado Court of Appeals affirmed the trial court's order denying the motion in People v. Yellowboy, No. 08CA729 (Colo.App. March 26, 2009) (unpublished) because the claims presented had been raised or could have been raised on direct appeal. (ECF No. 12-7). In the decision, the state appellate court also noted that Applicant's state court mittimus had not been amended to reflect removal of the crime of violence conviction, and remanded the case for an amendment of the mittimus. ( Id. ).
In 2011, Mr. Yellowboy filed another state post-conviction motion under Colo. Crim. P. Rule 35(a) and (c). (ECF No. 12-9). The Colorado Court of Appeals affirmed the trial court's order denying the motion on the various procedural grounds. See People v. Yellowboy, No. 11CA2565 (Colo.App. Aug. 22, 2013) (unpublished) (ECF No. 12-11). The Colorado Supreme Court denied Applicant's request for certiorari review on July 28, 2014. (ECF No. 6, at 11).
Mr. Yellowboy filed his § 2254 Application on October 20, 2014. He claims in the Application that the Colorado Court of Appeals order vacating the crime-of-violence conviction: (1) demonstrated that his remaining convictions were not supported by proof beyond a reasonable doubt; and, (2) that all of his sentences are illegal. (ECF No. 6, at 5-6).
Respondents argue that the Application is barred by the one-year limitation period in 28 U.S.C. § 2244(d). (ECF No. 12, at 5-7). Respondents further contend that claim the claims were procedurally defaulted in the state courts and are thus barred from merits review in this federal habeas proceeding. ( Id. at 8-11).
II. AEDPA Time Bar
The Anti-Terrorism and Effective Death Penalty Act ...