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Kinney v. Diggins

United States District Court, D. Colorado

January 29, 2015

ANTHONY T. KINNEY, Applicant,
v.
SHERIFF D. DIGGINS, and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant, Anthony T. Kinney, a prisoner currently detained at the Denver County Jail, initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). He is challenging the validity of his conviction and sentence in Arapahoe County District Court case number 07CR1228.

On December 4, 2014, Magistrate Judge Gordon P. Gallagher 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 December 16, 2014, Respondent Attorney General of the State of Colorado, through his counsel, filed a Pre-Answer Response (ECF No. 9) arguing that the Application is untimely and that Mr. Kinney's claims are unexhausted and procedurally barred.[1] Mr. Kinney did not file a reply to the Pre-Answer Response despite being given an opportunity to do so.

The Court must construe the Application filed by Mr. Kinney liberally 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 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 as untimely.

Mr. Kinney was charged with escape, motor vehicle theft, three counts of identity theft, three counts of forgery, criminal possession of a financial device, theft, and three counts of habitual criminal. ( See ECF No. 9-1 at 2-5.) Pursuant to a plea agreement, he pled guilty to escape and one count of identity theft with a sentence cap of twelve years. ( Id. at 13-14.) On November 8, 2007, the state district court sentenced him to eight years in prison and five years parole. ( Id. ) He did not appeal his judgment of conviction or sentence.

On March 4, 2008, Mr. Kinney filed a motion for sentence reconsideration. (ECF No. 9-1 at 12.). The state district court denied the motion on April 15, 2008. ( Id. at 12.) Mr. Kinney filed a notice of appeal on August 8, 2008. ( Id. )

While the appeal was pending, Mr. Kinney filed a second motion for reconsideration on August 12, 2008, which the state court denied on September 22, 2008. (ECF No. 9-1 at 11.) On November 21, 2008, the Colorado Court of Appeals issued an order to show cause why the appeal should not be dismissed with prejudice for failure to timely appeal the April 15, 2008 order and proceed solely on the September 22, 2008 order denying Mr. Kinney's second motion for reconsideration ( Id. ) The Colorado Court of Appeals dismissed the appeal on June 10, 2009, finding that Mr. Kinney failed to show good cause. ( Id. at 12.) The mandate issued on August 10, 2009. ( Id. )

While the appeal was pending, Mr. Kinney also filed a motion for postconviction relief pursuant to Colo. Crim. P. 35(c) on February 17, 2009. (ECF No. 9-1 at 10.) The state court denied the motion on February 23, 2009. ( Id. ) Mr. Kinney did not appeal.

In July and August 2009, Mr. Kinney submitted two letters with attachments to the state district court, which were denied. (ECF No. 9-1 at 10.) Mr. Kinney did not appeal.

Mr. Kinney filed another letter on September 11, 2009, which the state district court treated as a petition for reconsideration and denied it as successive and untimely. (ECF No. 9-1 at 10). Mr. Kinney did not appeal.

On March 10, 2010, Mr. Kinney sent a letter to the state district court apparently requesting information about presentence confinement credit. (ECF No. 9-1 at 10.) According to the register of actions, the state district court sent Mr. Kinney a copy of the mittimus on March 12, 2010. ( Id. )

On April 2, 2010, Mr. Kinney sent a letter to the state district court concerning his judgment of sentence. (ECF NO. 9-1 at 10.) The state court issued a response on April 15, 2010. ( Id. )

On September 16, 2010, Mr. Kinney filed a motion for presentence confinement credit, and filed a second such motion on September 20, 2010. (ECF No. 9-1 at 9-10.) Both motions were denied. ( Id. ) Mr. Kinney did not appeal.

On January 19, 2012, Mr. Kinney filed a request for copies of the registers of actions and mittimuses in three of his criminal cases. (ECF No. 9-1 at 9.) The state district court ...


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