United States District Court, D. Colorado
MARLON L. SMITH, Applicant,
LOU ARCHULETA, Warden, and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents.
ORDER FOR ANSWER AND STATE COURT RECORD
WILLIAM J. MARTÍNEZ, District Judge.
Applicant is in the custody of the Colorado Department of Corrections and currently is incarcerated at the Fremont Correctional Facility in Cañon City, Colorado. Applicant, acting pro se, has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, ECF No. 1, challenging the conviction and sentence in State of Colorado Criminal Case No. 02CR3477. In an order entered on May 22, 2014, U.S. Magistrate Judge Boyd N. Boland 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.
Respondents filed their Pre-Answer Response, ECF No. 11, on June 10, 2014. After a request for an extension of time by Applicant, and a granting by the Court of the extension, Applicant filed a Reply, ECF No. 16, on July 15, 2014.
Applicant raises twelve claims in the Application. The claims are as follows:
(1) State district court violated his due process rights by refusing to suppress an unduly suggestive photo-identification procedure;
(2) State district court violated his right to a fair trial by allowing a putative expert witness to relate theories in psychology that are unreliable proof of motive, intent and propensities;
3) State district court violated his due process rights by failing to remedy the admission of unfounded, inflammatory hearsay evidence designed to frame the government's theory of the case;
4) State district court violated his right to a fair trial by overruling a well-founded Rule 403 objection without coherence or actual review of challenged evidence of a 911 audiotape;
5) State district court violated his due process rights by denying him an opportunity to suppress collateral use by the government of prior unconstitutional convictions;
6) State district court violated his due process rights by failing to conduct a Weidemer analysis regarding the validity of prior convictions, burdening his right to testify;
7) Evidence is insufficient to sustain a guilty verdict for burglary, felony murder, and violating a restraining order;
8) Sentence for the offense of attempted felony murder in Count Four should be vacated because only one killing;
9) Ineffective assistance of appellate counsel for failure to amend opening brief when U.S. Supreme Court issued decision in Crawford;
10) Crawford due process issue;
11) Ineffective assistance of trial counsel for failure to conduct forensic examinations and for:
i) Failure to investigate and present evidence of wife's drug overdose;
ii) Failure to object to prosecution eliciting expert opinion from domestic violence expert without ...