United States District Court, D. Colorado
KEVIN R. HERRERA, Applicant,
JOHN FALK, Sterling Correctional, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER DRAWING CASE
GORDON P. GALLAGHER, Magistrate Judge.
Applicant Kevin R. Herrera is in the custody of the Colorado Department of Corrections and currently is incarcerated at the Sterling Correctional Facility in Sterling, Colorado. Applicant has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 that challenges his conviction and sentence in State of Colorado Criminal Case No. 99CR3726. In an order entered on January 27, 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 filed their Pre-Answer Response, ECF No. 10, on February 6, 2015. Applicant filed a Reply, ECF No. 11, on February 17, 2015.
Applicant raises two claims in the Application: (1) ineffective assistance of counsel on appeal with three subparts; and (2) violation of due process rights based on prosecutorial misconduct.
The Court must construe liberally the Application and Reply 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 found guilty by a jury trial on December 11, 2003, of first degree murder and two counts of accessory to a crime in Case No. 99CR3726 in the El Paso County District Court, ECF Nos. 1 at 2 and 10 at 1-2, and was sentenced on February 12, 2004, to forty-four years of incarceration, ECF Nos. 1 at 2 and 10-1 at 27-28. Applicant appealed his convictions, the Colorado Court of Appeals (CCA) affirmed the conviction and sentence, ECF No. 10-3, Ex. C., and the Colorado Supreme Court (CSC) denied Applicant's petition for certiorari review on September 17, 2007, ECF No. 10-4, Ex. D.
While the direct appeal was pending, Applicant filed a Colo. R. Crim. P. 35(b) motion for sentence reconsideration on February 21, 2006. ECF No. 10-1, Ex. A, at 20. On June 6, 2008, after the mandate was entered in the direct appeal, Applicant filed a letter regarding the motion for reconsideration. Id. The letter Applicant submitted on June 6, 2008, refers to his Rule 35(b) postconviction motion being held in abeyance until his appeal was final and requests a hearing. See Herrera, No. 99CR3726, Flat File at 997-98. Then on December 15, 2008, Applicant filed a Colo. R. Crim. P. 35(c) postconviction motion. ECF No. 10-1 at 19.
The Rule 35(c) postconviction motion is dated December 11, 2008. See Herrera, No. 99CR3726, Flat File at 1126. Pursuant to Colo.App. R. 25(b), a document filed by an inmate is considered filed the date the document is deposited in the institution's internal mailing system. Applicant must use a legal mail system if an institution has such a system to receive benefit of this rule. Colo.App. R. 25(b). Applicant did not indicate on the Rule 35(c) motion that he relied on a legal mailing system at the prison, nor does he state that he dropped the motion in the prison mail system on the date the motion was filed. Nonetheless, Applicant's Rule 35(c) motion is not file stamped. The case register has an entry of December 15, 2008, but the only date noted on the Rule 35(c) motion is December 11, 2008. Given the possible discrepancy of when the motion was actually filed, the Court will give Applicant the benefit of the doubt and construe the Rule 35(c) postconviction motion filed on December 11, 2008.
The trial court denied the Rule 35(c) motion on January 10, 2012, ECF No. 10-1 at 14, the CCA affirmed the denial on May 22, 2014, ECF No. 10-6, Ex. F, and the CSC denied the petition for certiorari review on December 22, 2014, ECF No. 10-8, Ex. H.
Applicant signed and dated the Application in this case on January 14, 2015. For purposes of this action, the mailbox rule states that an inmate who places a habeas petition "in the prison's internal mail system will be treated as having filed' [the petition] on the date it is given to prison authorities for mailing to the court." Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir.2005) (citing Houston v. Lack, 487 U.S. 266, 276 (1988)). "However, the inmate must attest that such a timely filing was made and has the burden of proof on this issue." Id. (citing United States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir.2004)). In order to establish a timely filing, an inmate must either (1) prove that he made timely use of the prison's legal mail system if a satisfactory system is available; or (2) if a legal mail system is not available, prove timely use of the prison's regular mail system by submitting a notarized statement or a declaration under penalty of perjury indicating the date on which the document was given to prison officials for mailing. Id. (citing Ceballos-Martinez, 387 F.3d at 1144-45). Applicant has not complied with either of the requirements in Price. The Court, therefore, finds the Application was filed on January 20, 2015, the date the Court received and filed the Application.
Respondents argue that this action is untimely under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). See ECF No. 10 at ...