United States District Court, D. Colorado
CHARLES E. BACA, Applicant,
JAMES FAULK, Warden, and JOHN W. SUTHERS, Attorney General of the State of Colorado, Respondents.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Charles E. Baca, is a prisoner in the custody of the Colorado Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr. Baca 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). On December 17, 2014, Mr. Baca filed an amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) (the "Amended Application"). Mr. Baca is challenging the validity of his conviction in Lincoln County District Court case number 94CR3.
On December 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 January 8, 2015, Respondents filed their Pre-Answer Response (ECF No. 11) arguing that the Amended Application is untimely and that some of Mr. Baca's claims are unexhausted and procedurally defaulted. On February 2, 2015, Mr. Baca filed a reply (ECF No. 12) to the Pre-Answer Response.
The Court must construe the Amended Application and other papers filed by Mr. Baca 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 state court proceedings pertinent to Mr. Baca's conviction is taken from an opinion of the Colorado Court of Appeals.
In August 1994, defendant was convicted on nine felony counts stemming from his attack on three prison guards while he was an inmate at the Limon Correctional Facility. His conviction was affirmed on appeal, and the mandate issued on April 3, 1997. People v. Baca, (Colo.App. No. 95CA0008, Sept. 5, 1996) (not published pursuant to C.A.R. 35(f)).
On May 29, 1997, defendant, through counsel, filed a Crim. P. 35(b) motion for sentence reconsideration. The motion was denied on July 31, 1997.
On June 5, 1998, in response to defendant's pro se request, the trial court appointed the public defender "to investigate whether a Rule 35C motion should be filed on defendant's behalf." Two weeks later, the public defender sought to withdraw due to irreconcilable differences, and asked the trial court to appoint substitute counsel to "continue representing [defendant] on his motion pursuant to Crim. P. 35( b ) [sic]." (Emphasis added.) On July 22, 1998, the trial court ruled that any further motion would be successive and therefore denied as moot defendant's request for substitute counsel "for the purpose of filing a successive 35( b ) motion." (Emphasis added.)
Approximately one year later, by letter dated July 11, 1999, defendant again requested that counsel be appointed to assist him in filing a Crim. P. 35(c) motion. The trial court appointed counsel (first substitute counsel) on July 16, 1999, "to represent [defendant] re the court's order denying post conviction relief dated 7/22/98." Some six months later, defendant wrote to the court clerk inquiring about the status of the case. On January 12, 2000, the court ordered first substitute counsel to provide a status report within thirty days. One week later, she responded with a motion to withdraw, due to a conflict of interest. The court granted the motion and on February 4, 2000, with only two months remaining before the three-year deadline under section 16-5-402, C.R.S. 2008, appointed second substitute counsel. He withdrew from the case over three years later, not having filed any motions. The court appointed new substitute counsel twice again after expiration of the deadline in response to defendant's repeated complaints that nothing was being done on his case.
Counsel appointed in November 2006 ultimately filed a Crim. P. 35(c) motion on August 27, 2007, more than seven years after expiration of the statutory limitation period. Defendant argued that the motion should be accepted because the late filing was due to justifiable excuse or excusable neglect. Specifically, defendant contended that his postconviction counsel failed to act in his behalf and one of them erroneously told him that a Crim. P. 35(c) motion had been filed. Defendant also argued that his "lack of knowledge of the law, lack of funds, lack of education, and lack of access to legal representation support[ed] a finding of excusable neglect."
The trial court held that defendant had not shown "any valid reason for filing the Motion beyond the three year limitation." On the merits, it concluded that the allegations did not support findings that trial counsel's performance fell below the level of reasonable professional assistance required or that defendant suffered any prejudice. The court accordingly denied the motion without a hearing.
People v. Baca, No. 08CA1273, slip op. at 1-3 (Colo.App. July 9, 2009) (unpublished) (ECF No. 11-7 at 2-4). Mr. Baca appealed and, on appeal, the Colorado Court of Appeals affirmed in part, reversed as to the finding that the Rule 35(c) motion was untimely, and remanded for further proceedings. ( See id. )
On remand, the trial court determined Mr. Baca had justifiable excuse or excusable neglect for his late filing but denied the motion on the merits. That order was affirmed on appeal. See People v. Baca, No. 12CA0179 (Colo.App. Feb. 14, 2013) (unpublished) (ECF No. 11-11). On October 7, 2013, the Colorado Supreme Court denied Mr. Baca's petition for writ of certiorari. ( See ECF No. 11-13.)
Mr. Baca initiated this action on November 19, 2014. In the Amended Application filed on December 17, 2014, he asserts the ...