United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Darin Whatley, is a prisoner in the custody of the Colorado Department of Corrections currently incarcerated at the Centennial Correctional Facility. Mr. Whatley has filed pro se an amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 7). He is challenging the validity of his conviction and sentence in Pueblo County District Court case number 03CR863.
On August 26, 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. After being granted an extension of time, Respondents filed, on September 30, 2014, their Pre-Answer Response (ECF No. 14) arguing that the application is untimely and that claims one, two, and seven are procedurally defaulted. After being granted three extensions of time, Mr. Whatley filed his Reply (ECF No. 22).
The Court must construe the Application and other papers filed by Mr. Whatley 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.
A jury convicted Mr. Whatley of two counts of second degree kidnapping, three counts of sexual assault, and two counts of aggravated robbery. ( See ECF No. 14-13 at 2.) The trial court sentenced Mr. Whatley to concurrent forty-eight year sentences on the kidnapping charges, concurrent thirty-two year sentences on the robbery charges that ran consecutive to the kidnapping charges, and ninety-six years to life on each of the three counts of the sexual assault charges, which ran consecutive to the kidnapping and robbery charges. The judgment of conviction and sentences as to one of the kidnapping charges, one of the robbery charges, and two of the sexual assault charges were vacated, concluding that those counts should have been merged with the other, similar counts. See People v. Whatley, No. 05CA0351 (Colo.App. Feb. 14, 2008) (unpublished) (ECF No. 14-9 at 24). The judgment and sentences were affirmed in all other respects on direct appeal. Id. On June 26, 2008, the Colorado Supreme Court denied Mr. Whatley's petition for writ of certiorari on direct appeal. ( See ECF Nos. 14-11 and 14-1 at 10.)
On December 17, 2008, Mr. Whatley filed in the trial court a postconviction motion pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure seeking a reduction of sentence. ( See ECF No. 14-1 at 10.) Mr. Whatley then filed a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure on March 23, 2010, which the trial court denied on March 29, 2010. ( Id. at 9-10). On July 12, 2011, Mr. Whatley filed a petition for postconviction relief pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. ( Id. at 9.) On July 20, 2011, the trial court denied both the Rule 35(b) motion and Rule 35(c) petition. ( Id. ) Mr. Whatley appealed the denial of the Rule 35(c) petition and the order was affirmed on April 11, 2013 by the Colorado Court of Appeals. See People v. Whatley No. 11CA1811 (Colo.App. April 11, 2013) (unpublished) (ECF No. 14-13). Mr. Whatley did not file a petition for rehearing or seek review in the Colorado Supreme Court. The mandate was issued on August 27, 2013.
Mr. Whatley initiated the instant action on June 26, 2014 by filing a letter requesting appointment of counsel to assist him in filing his habeas application. After ordering Mr. Whatley to cure designated deficiencies, Mr. Whatley filed an incomplete habeas application on July 29, 2014, and an amended application (ECF No. 7) on August 25, 2014. In the amended Application, Mr. Whatley asserts the following seven claims for relief:
1. Ineffective assistance of trial counsel due to counsel's lack of investigation and performance at trial.
2. Ineffective assistance of counsel due to counsel Reynolds having a conflict of interest.
3. Mr. Whatley's right to be present was violated because he was not present during a portion of the jury selection.
4. He was denied his right to represent himself.
5. He was denied his right to due process when the trial court failed to suspend trial proceedings to address his competency.
6. His right to be free from unreasonable searches and seizures was violated by the manner in which the police arrested him and seized evidence.
7. His "right to privileged communication and confidentiality" was violated by the trial court's failure to exclude the prosecutor from the courtroom during a hearing concerning whether ...