United States District Court, District of Colorado
LAVERN BARRON, a/k/a LAVONE B. BARRON, Applicant,
RANDY LIND, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, SENIOR JUDGE UNITED STATES DISTRICT COURT
Applicant, Lavern Barron, is a prisoner in the custody of the Colorado Department of Corrections (CDOC) at the Arkansas Valley Correctional Facility in Ordway, Colorado. He has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. (ECF No. 8). Mr. Barron challenges the validity of his convictions and sentence imposed in the District Court of Denver County, Colorado. He has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On November 18, 2014, Magistrate Judge Gordon P. Gallagher 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). (ECF No. 12). Respondents filed a Pre-Answer Response on November 28, 2014. (ECF No. 16). Applicant was given an opportunity to file a Reply.
The Court construes the Application liberally because Mr. Barron 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 January 2007, Mr. Barron was convicted by a jury in Denver County District Court Case No. 06CR2543 of two counts of aggravated first degree sexual assault. (ECF No. 16-1, at 11-12). Upon his adjudication as a habitual offender, Applicant was sentenced to a 72-year prison term with the CDOC. (Id. at 9). His convictions and sentence were affirmed on direct appeal in People v. Lavern Bunny Barron, No. 07CA1078 (Colo.App. May 14, 2009) (unpublished) (ECF No. 16-3). The Colorado Supreme Court denied Mr. Barron’s petition for certiorari review on August 24, 2009. (ECF No. 16-5).
Mr. Barron filed a motion for sentence reconsideration on October 26, 2009, which the trial court denied the following day. (ECF No. 16-1, at 7). Applicant did not appeal.
On December 13, 2010, Mr. Barron filed a motion for post-conviction relief pursuant to Colo. Crim. P. Rule 35(c), which was denied by the state district court on October 10, 2011. (Id. at 6-7). The Colorado Court of Appeals affirmed the district court’s order in People v. Lavern Bonnie Barron, 11CA2159 (Colo.App. Nov. 14, 2013) (unpublished). (ECF No. 16-8). The Colorado Supreme Court denied Applicant’s petition for certiorari review on September 8, 2014. (ECF No. 16-10).
II. Prior Federal Application
Mr. Barron filed his first § 2254 Application in this Court, on August 12, 2010. See Lavern B. Barron v. The People of the State of Colorado, et al., No. 10-cv-02134-ZLW. On November 10, 2010, Magistrate Judge Boyd N. Boland issued an Order directing Applicant to show cause, within thirty days, why the § 2254 Application should not be dismissed without prejudice as a mixed petition, pursuant to Rose v. Lundy, 455 U.S. 509, 522 (1982), because it contained both exhausted and unexhausted claims. (See Id. at ECF No. 10). Magistrate Judge Boland gave Applicant the following advisement in the Order to Show Cause:
. . . In order to avoid dismissal of a habeas application as a mixed petition, an applicant may elect to dismiss any unexhausted claims and pursue only those claims for which state remedies already have been exhausted. If an applicant wishes to pursue all of his claims in federal court the habeas action will be dismissed without prejudice so that the applicant may exhaust state remedies. He then may file a new application for a writ of habeas corpus.
A decision to dismiss unexhausted claims and pursue immediately only exhausted claims likely will bar an applicant from seeking review of the unexhausted claims in a second or successive application. See 28 U.S.C. § 2244(b). Alternatively, if an applicant elects to dismiss the entire action and return to state court to exhaust the unexhausted claims before seeking relief in federal court, the one-year limitation period in § 2244(d) will be applied to any new federal court action the applicant seeks to file. Furthermore, the time during which a 28 U.S.C. § 2254 application is pending in this Court does not toll the one-year limitation period in § 2244(d). See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that “an application for federal habeas corpus review is not an ‘application for State post-conviction or other collateral review’ within the meaning of 28 U.S.C. § 2244(d)(2)” and “therefore did not toll the limitation period during the pendency of [an applicant’s] first federal habeas petition”).
The fact that the instant action currently is timely under § 2244(d) does not mean that any future action filed by Mr. Barron also will be timely.
(Id., at pp. 5-6) (Emphasis in the original).
In his response to the Order to Show Cause, Mr. Barron stated that he desired to pursue all of his claims in federal court, and, therefore, he requested that the Court dismiss the action without prejudice so that he could exhaust state court remedies for his unexhausted claims. (Id., ECF No. 11). Based on Applicant’s response, the Court dismissed the action without prejudice on December 2, 2010, and reminded Mr. Barron that “the fact that the instant action currently is timely ...