United States District Court, D. Colorado
ALEXANDER S. MARDIS, Propria Persona, Applicant,
JAMES FALK, Warden Sterling Corr. Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, JOHN SUTHERS, Respondents.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Alexander S. Mardis, is a prisoner in the custody of the Colorado Department of Corrections (DOC) currently incarcerated at the Sterling Correctional Facility in Sterling, Colorado. Mr. Mardis filed a pro se an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 16) challenging the validity of his conviction in Case No. 11CR1331 in the Weld County District Court. Mr. Mardis has been granted leave to proceed in forma pauperis.
On January 15, 2015, Magistrate 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). Respondents submitted a Pre-Answer Response (ECF No. 20) on January 28, 2015. Mr. Mardis filed a Reply (ECF No. 23), a Memorandum of Law (ECF No. 24), and Omnibus Motion (ECF No. 25).
The Court must construe liberally the Application and other documents filed by Mr. Mardis 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 act as 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 barred by the one-year limitation period.
On November 9, 2011, Mr. Mardis pled guilty to felony menacing and criminal mischief pursuant to a deferred judgment and sentence (DJS) agreement. (ECF No. 20-2 at 1; ECF No. 20-1 at 3, 5, 12). Pursuant to the agreement, if Mr. Mardis successfully completed a two year term of supervision, his guilty plea would be withdrawn, and a conviction would not be entered. See Colo. Rev. Stat. § 18-1.3-102 (2014).
Mr. Mardis later violated the terms of his supervision, and on May 22, 2012, the trial court revoked the DJS, entered judgment on the conviction, and sentenced him to probation. (ECF No. 20-2 at 1; ECF No. 20-1 at 10, 12). Mr. Mardis did not appeal.
Mr. Mardis later violated the terms of his probation, and on June 20, 2013, the trial court revoked the probationary sentence and sentenced him to one year in the custody of the DOC, to be followed by two years of mandatory parole. (ECF No. 20-2 at 1; ECF No. 20-1 at 5, 8, 10). Mr. Mardis did not appeal.
On August 1, 2014, Mr. Mardis filed a postconviction motion pursuant to Colorado Rule of Criminal Procedure 35(c). (ECF No. 20-1 at 8). On October 31, 2014, the trial court denied the motion in a written order. (ECF No. 20-2). Mr. Mardis appealed and that appeal remains pending. (ECF No. 20-1 at 7; ECF No. 20-3).
Mr. Mardis initiated the instant action in this Court on October 23, 2014. In the Amended Application, Mr. Mardis asserts three claims: (1) that he was "falsely convicted" because his "public defender misrepresented me and unconscionably took the plea" for him; (2) that he acted "under duress and necessity" to defend himself and thus, there was insufficient evidence to support the conviction of felony menacing; and (3) that he received ineffective assistance of counsel because his public defender "illegally accepted the plea" from me and made fraudulent misrepresentations. (ECF No. 16 at 5-6).
Respondents argue that this action is barred by the one-year limitation period in 28 U.S.C. § 2244(d). Section 2244(d) provides as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...