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King v. Miller

United States District Court, D. Colorado

February 11, 2015

CLARENCE KING, Applicant,
v.
MICHAEL MILLER, Warden, Crowley County Correctional Facility, and JOHN W. SUTHERS, The Attorney General of the State of Colorado, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

I. Background

Applicant, Clarence King, is a prisoner in the custody of the Colorado Department of Corrections currently incarcerated at the Crowley County Correctional Facility in Olney Springs, Colorado. Mr. King has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging his conviction and sentence in Denver County District Court case no. 03CR2350. In an order entered on November 26, 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.

On December 12, 2014, Respondents filed their Pre-Answer Response (ECF No. 8) asserting that the action is untimely and that both claims are procedurally defaulted. After being granted an extension of time, Applicant filed a Reply (ECF No. 11) on January 30, 2015.

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.

In December 2003, a jury found Applicant guilty of second degree assault (deadly weapon), second degree kidnapping, and attempted sexual assault. (ECF No. 8-1 at 12; ECF No. 8-3 at 1.) The trial court sentenced him to ten years for second degree assault, ten years for second degree kidnapping, and an indeterminate sentence of eight years to life for attempted sexual assault, to be served concurrently. (ECF No. 8-1 at 11; ECF No. 8-3 at 1-2.) Applicant filed a direct appeal and the Colorado Court of Appeals affirmed the conviction and sentence on August 10, 2006 in a published opinion. ( See ECF No. 8-3, People v. King, 151 P.3d 594 (Colo.App. 2006)). Applicant filed a petition for writ of certiorari, which was denied by the Colorado Supreme Court on February 15, 2007. (ECF No. 8-1 at 9.)

Applicant then filed a Colo. R. Crim. P. 35(c) motion on May 11, 2007, and a combined motion to accept a Colo. R. Crim. P. 35(b) motion for sentence reconsideration and modification of sentence as timely filed on August 15, 2007. (ECF No. 8-1 at 9.) On August 30, 2007, the trial court denied all pending motions. (Id. ) Applicant did not appeal.

On March 10, 2008, Applicant filed a Colo. R. Crim. P. 35(a) motion to correct an illegal sentence, which the trial court denied on May 29, 2008. (ECF No. 8-1 at 8.) Applicant attempted to appeal, but the Colorado Court of Appeals denied his motion for an extension of time to file a notice of appeal and dismissed the appeal. (Id.; ECF No. 8-4.)

On June 1, 2009, Applicant filed another Colo. R. Crim. P. 35(c) motion, which was denied on August 6, 2009. (ECF No. 8-1 at 7-8; ECF No. 8-2.) The Colorado Court of Appeals affirmed the denial, but remanded to the trial court for correction of the mittimus, which erroneously reflected the attempted sexual assault conviction as a class five felony rather than as a class four felony. (ECF No. 8-7, People v. King, No. 09CA1878 (Colo.App. Sept. 2, 2010)). Applicant's petition for rehearing was denied on December 30, 2010. (ECF No. 8-8.) Applicant did not seek certiorari review.

On or around April 14, 2011, the trial court corrected the mittimus by merging count two (attempted sexual assault), a class 5 felony, with the related count three (sexual assault sentence enhancer), a class 4 felony, but not dismissing either count. (ECF No. 8-1 at 3-4, 6; ECF No. 11-4.) An amended mittimus was issued on July 12, 2011. (ECF No. 8-1 at 6; ECF No. 11-4.)

On April 9, 2014, Applicant filed a Colo. R. Crim. P. 35(c) motion, which he supplemented on May 7, 2014. (ECF No. 8-1 at 6; ECF Nos. 11-1 and 11-2.) On August 19, 2014, the trial court denied the postconviction motions as untimely. (ECF No. 8-1 at 6.) Applicant did not appeal.

On September 26, 2014, Applicant filed a petition in this Court in King v. Miller, Case No. 14-cv-02662-LTB (D. Colo. Sept. 26, 2014). The Court reviewed the document, determined that it was deficient, and ordered Applicant to cure certain enumerated deficiencies within thirty days if he wished to pursue his claims. On November 7, 2014, the Court dismissed the action without prejudice for failure to cure the designated deficiencies as directed.

On November 25, 2014, Applicant initiated the instant action by filing his § 2254 Application. He asserts the following two claims: (1) "District Court by vacating count 2 and adding count 3 violated Double Jeopardy, Equal [sic], Fairness and Due Process Protections of the Federal Constitution;" and (2) "Fatal Variance between Complaint and Information, Jury Instructions, and Plaintiff's Sentence on Count 2 was Imposed Inconsistence [sic] ...


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