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Harvey v. Trami

United States District Court, D. Colorado

January 29, 2015

DARRIN HARVEY, Applicant,
v.
TRAVIS TRAMI, Warden, and JOHN W. SUTHERS, The Attorney General of the State of Colorado, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant Darrin Harvey is in the custody of the Colorado Department of Corrections and currently is incarcerated at the Centennial Correctional Facility in Canon City, Colorado. Applicant has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 that challenges his conviction and sentence in State of Colorado Criminal Case No. 05CR807. In an order entered on November 17, 2014, Magistrate Judge Gordon P. Gallagher directed 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 under 28 U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those affirmative defenses in this action.

Respondents filed their Pre-Answer Response, ECF No. 7, on November 26, 2014, and an Amended Pre-Answer Response, ECF No. 9, on December 1, 2014. Applicant filed a Reply, ECF No. 12, on December 24, 2014. Applicant raises one claim in the Application. When Respondents attempted to construe the claim as three separate claims, see ECF No. 9 at 2-3, Applicant specifically disagreed with Respondents and stated he is raising only one claim, which is that the state court improperly denied his request for relief based on newly discovered evidence, see ECF No. 12 at 1. The Court, therefore, will address only Applicant's newly discovered evidence claim.

II. Analysis

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.

Respondents assert the action is untimely and the newly discovered evidence claim is not cognizable in a federal habeas action, because the claim is based solely on state law. The Court will discuss the relevant issues as follows.

Applicant was found guilty by a jury trial on August 24, 2005, of possession of more than one gram of a schedule II controlled substance and possession with intent to distribute a schedule II controlled substance in Case No. 05CR807 in the El Paso County District Court, ECF Nos. 1 at 1 and 7-1, and was sentenced on August 25, 2005, to forty-eight years of incarceration as an habitual offender, ECF Nos. 1 at 2 and 7-1.

Applicant filed a direct appeal and the Colorado Court of Appeals (CCA) affirmed the conviction and sentence on March 1, 2007. See ECF Nos. 1 at 2 and 7-1 at 1. Applicant did not petition for certiorari review of the CCA's decision. Applicant then filed a Colo. R. Crim. P. 35(c) on April 25, 2007 (sent to the court on April 23, 2007), ECF Nos. 1 at 3 and 7-1 at 14, which the trial court denied on November 9, 2009, ECF Nos. 1 at 4 and 7-1 at 9-10. Applicant then sought an out-of-time appeal on May 2, 2011, ECF No. 7-12, which was granted on May 23, 2011, id.

A. Timeliness

Respondents argue that this action is untimely under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). See ECF No. 7 at 4-6. 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 ...

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