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Stickler v. Ellis

United States District Court, D. Colorado

April 7, 2015

JENNIFER M. STICKLER, Applicant,
v.
KIM ELLIS, Probation Officer, 4th Judicial District Colorado, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

I. Background

Applicant Jennifer Stickler initiated this action on January 12, 2015, by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Applicant asserts that she pled guilty to one count of criminal impersonation in State of Colorado Case No. 2006CR5634, was convicted on March 20, 2007, and was sentenced to two years of supervised probation. Application, ECF No. 1, at 1-2. In an order entered on February 18, 2015, 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. Respondents also were directed to address whether subject matter jurisdiction is lacking in this action.

Respondents filed their Pre-Answer Response, ECF No. 11, on March 11, 2015. Applicant did not reply to the Pre-Answer Response within the time allowed.

Applicant is challenging the continuation of her probation for the past nine years based on her failure to pay the restitution owed. Applicant's claims are difficult to decipher but the Court construes Applicant's claims as follows:

1. Ineffective assistance of counsel (never informed her of her right to appeal);
2. Applicant's postconviction motion has not been "adjudicated" and the case has been moved from one judge to another without justification;
3. Applicant has completed the two-year original probationary sentence and the continuing probation violations and sanctions imposed are constitutionally infirm;
4. Respondent Kim Ellis has perjured herself and not allowed any "fact finding mission" or "conclusions of law" to take place;"
5. The state district court continues to issue arrest warrants against her and has caused her to post bond at least two times; and
6. The imposition of restitution and payout order is illegal.

II. Analysis

The Court must construe liberally the Application 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.

Applicant was charged with aggravated motor vehicle theft (over $15, 000), theft ($500 to $15, 000), and criminal impersonation. Pre-Answer Resp., Attach. 1, ECF No. 11-1, at 4. She pled guilty to criminal impersonation and on October 24, 2007, in exchange for the dismissal of the other charges was sentenced to two years of probation and restitution. Id. at 15-16. On April 29, 2008, a warrant was issued for Applicant's arrest because she had failed to comply with the terms of her probation. Id. at 14. Applicant was arrested on January 15, 2009, and subsequently found to have violated the conditions of her probation, which resulted in a revocation of the probation and a new two-year probation sentence being imposed with additional conditions on February 3, 2009. Id. at 13. Then on January 7, 2011, the probation was extended for twelve months for Applicant to pay restitution, the payment of which was a condition of probation. Id. Shortly thereafter, on June 21, 2011, the trial court issued an arrest warrant based on Applicant's alleged failure to comply with the terms of her probation. Id. Applicant then ...


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