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Green v. Miller

United States District Court, D. Colorado

April 13, 2015

KENNETH GREEN, Applicant,
v.
MICHAEL MILLER, Warden Crowley County Correctional Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant, Kenneth Green, is a prisoner in the custody of the Colorado Department of Corrections at the Crowley County Correctional Facility in Olney Springs, Colorado. Mr. Green has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) (the "Application") challenging the validity of his convictions in two Denver District Court cases. The relevant state court case numbers are 11CR2366 and 11CR2449.

On December 16, 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 December 24, 2014, Respondents filed their Pre-Answer Response (ECF No. 10) arguing that the Application is untimely and that Mr. Green's claims are unexhausted and procedurally defaulted. On February 3, 2015, Mr. Green filed his Reply to Pre-Answer Response (ECF No. 14) arguing, in part, that the one-year limitation period should be equitably tolled.

On February 25, 2015, Magistrate Judge Gallagher entered an order giving Respondents an opportunity to file a supplement to the Pre-Answer Response that addresses Mr. Green's equitable tolling argument. On March 6, 2015, Respondents filed their Supplemental Pre-Answer Response (ECF No. 16). On March 26, 2015, Mr. Green filed his Reply to the Supplemental Pre-Answer Response (ECF No. 17).

The Court must construe the Application and other papers filed by Mr. Green 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.

In case number 11CR2366 Mr. Green agreed to plead guilty to sexual assault on a child and child abuse and he was sentenced to twenty years in prison plus an indeterminate term of ten years to life on probation. ( See ECF No. 10-1 at 10.) In case number 11CR2449 Mr. Green agreed to plead guilty to possession of marijuana with intent to distribute and he was sentenced to a concurrent term of six years in prison. ( See ECF No. 10-2 at 8.) He was sentenced in both cases on February 16, 2012. ( See ECF No. 10-1 at 10; ECF No. 10-2 at 8.) He did not appeal.

On June 19, 2012, Mr. Green filed in case number 11CR2449 a motion to reconsider his sentence. ( See ECF No. 10-2 at 8.) On July 2, 2012, the trial court denied the motion to reconsider. ( See id. ) Mr. Green did not appeal.

Beginning on March 7, 2014, Mr. Green commenced filing in both cases a series of postconviction motions. ( See ECF No. 10-1 at 7-9; ECF No. 10-2 at 5-7.) The state court docketing records provided by Respondents indicate the trial court has entered orders denying some of these motions, although there is no indication that the trial court has ruled on either the Rule 35(c) motion filed on March 7, 2014, or a supplemental Rule 35(c) motion filed on May 2, 2014. ( See id. ) According to Mr. Green these motions and others remain pending. Mr. Green has not appealed from any of the trial court's orders denying his postconviction motions.

The instant action was commenced on November 25, 2014. The Court construes the Application liberally as presenting the following six claims for relief:

1. Mr. Green's guilty plea was not voluntary, knowing, and intelligent.
2. Mr. Green was arrested without a warrant or probable cause in violation of the Fourth Amendment.
3. Mr. Green's home and car were searched illegally without a search warrant or valid consent in violation of the Fourth Amendment.
4. Mr. Green was not taken promptly before a magistrate following his warrantless arrest to be advised of his rights and for a judicial determination of ...

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