United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Christable E. Seymore, a state prisoner, has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 8). He challenges the validity of his conviction and sentence imposed in Denver, Colorado, District Court Case No. 03CR5034. Mr. Seymore has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
In a January 27, 2015 Order, Magistrate Judge Gordon P. Gallagher directed Respondents to file, within 21 days, a pre-answer response addressing the potential 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). On February 12, 2014, Respondents submitted a pre-answer response (ECF No. 16). On March 6, 2015, Applicant filed several documents that the Court will construe liberally and together as his Reply. (ECF Nos. 18, 19, 20 and 21).
The Court must construe Mr. Seymore's filings 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 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 Application as time-barred.
I. Background and State Court Proceedings
On December 30, 2003, Mr. Seymore pleaded guilty to possessing a controlled substance, pursuant to a deferred judgment and sentence (DJS) agreement. (ECF No. 16-1, at 21). Under the agreement, if Applicant successfully completed a term of supervision, his guilty plea would be withdrawn, and a conviction would not be entered. See generally COLO. REV. STAT. (C.R.S.) § 18-1.3-102 (2014). Applicant did not file a direct appeal.
Mr. Seymore later admitted to violating the terms of supervision. (ECF No. 16-1, at 14). On August 10, 2006, the state district court entered judgment on the conviction and sentenced him to four years in Community Corrections, a residential and transitional program. ( Id. ) ; see generally C.R.S. §§ 17-27-102(3) (2014), 18-1.3-301 (2014). Applicant did not appeal.
In February 2007, Mr. Seymore filed motions, pursuant to Colo. Crim. P. Rule 35, seeking a reduction of sentence and collaterally attacking the judgment, which were denied by the state district court. (ECF No. 16-1, at 13). Applicant did not appeal.
On July 10, 2008, Mr. Seymore was resentenced to the Colorado Department of Corrections after he violated the terms of the Community Corrections program. ( Id. at 12). Applicant then filed several state post-conviction motions between June 2009 and 2012, the latest of which was denied on December 19, 2012. ( Id. at 8-11). Mr. Seymore did not appeal any of those rulings. In January 2015, Applicant filed three additional post-conviction motions in the state district court. ( Id. at 8).
Mr. Seymore initiated this action on January 5, 2015. He asserts two claims for relief in the Application. Respondents argue that the Application is barred by the one-year limitation period in 28 U.S.C. § 2244(d). (ECF No. 16, at 4-10).
II. AEDPA Time Bar
Section 2244(d) of Title 28 United States Code, 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 ...