United States District Court, D. Colorado
JIMMY W. TANKSLEY, Applicant,
JAMES FALK, Warden, Sterling Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Jimmy W. Tanksley, is a prisoner in the custody of the Colorado Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr. Tanksley has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) (the "Application") challenging the validity of his conviction in Denver District Court case number 88CR833.
On November 18, 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 18, 2014, Respondents filed their Pre-Answer Response (ECF No. 11) arguing that the Application is untimely and that Mr. Tanksley's claim is unexhausted and procedurally defaulted. On December 31, 2014, Mr. Tanksley filed a reply (ECF No. 12) to the Pre-Answer Response.
The Court must construe the Application and other papers filed by Mr. Tanksley 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.
The following description of the factual and procedural background pertinent to Mr. Tanksley's conviction is taken from an opinion of the Colorado Court of Appeals.
The People appeal from a judgment of the trial court dismissing charges of first degree assault, second degree motor vehicle theft, and crime of violence against the defendant, Jimmy Tanksley. The trial court dismissed the charges upon finding a violation of the provisions of the Interstate Agreement on Detainers (IAD), § 24-60-501, et seq., C.R.S. (1988 Repl. Vol. 10B). We reverse.
On September 23, 1985, a criminal complaint charging the defendant with these crimes was filed in Denver, Colorado, and shortly thereafter, a warrant was issued for his arrest. On January 2 or 3, 1986, in Honey Grove, Texas, the defendant was arrested on the Colorado warrant and on a charge arising in Texas. Although Colorado authorities requested in writing that the Colorado warrant be placed as a detainer upon the defendant, Texas authorities did not honor this request, nor did they advise Colorado authorities that their request for a detainer had been received. The defendant was informally aware of the Colorado charges and was told he could sign extradition papers, but was not taken before a court to be formally advised on these matters.
Subsequently, the defendant was convicted on the Texas charge, was incarcerated in the Texas Department of Corrections, and was released on parole in August 1986. Soon after that release, the defendant was arrested in Bonham, Texas, pled guilty to a new Texas charge, and received a 35-year sentence.
On July 6, 1987, while incarcerated, the defendant was notified by Texas authorities of the detainer for the Colorado charges. Sometime thereafter, in July 1987, he was formally advised for the first time of his rights under the IAD.
Upon being returned to Colorado, defendant moved to dismiss the charges. The trial court granted the motion and found that there was a violation of the notification provision of § 24-60-501, art. III(c), C.R.S. (1988 Repl. Vol. 10B) in that defendant should have been notified of the detainer and advised of his rights in early 1986.
The prosecution contends that the provisions of the IAD were not activated because no detainer was lodged against the defendant until July 1987, when he was formally advised. We agree.
People v. Tanksley, No. 86CA1166, slip op. at 1-2 (Colo.App. May 25, 1989) (not selected for publication) (ECF No. 11-6 at 2-3). Mr. Tanksley alleges that he had been returned to Texas before the Colorado Court of Appeals reversed the trial court's order dismissing the charges against him.
Mr. Tanksley was returned to Colorado for a jury trial in 1991. He was convicted of second degree assault on a peace officer and second degree motor vehicle theft. He was sentenced to twelve years in prison to be served consecutively to his Texas sentence and he again was returned to Texas. The Colorado Court of Appeals affirmed the judgment of conviction on direct appeal. See People v. Tanksley, No. 91CA0827 (Colo.App. Aug. 13, 1992) (not selected for publication) (ECF No. 11-2). On February 16, 1993, the Colorado Supreme Court denied Mr. Tanksley's petition for writ of certiorari on direct appeal. ( See ECF No. 11-3.)
On June 21, 1993, the trial court denied Mr. Tanksley's postconviction motion pursuant to Rule 35(b) of the Colorado Rules of Criminal ...