United States District Court, D. Colorado
JERRY L. CHASE, Applicant,
RANDY LIND, Warden, Arkansas Valley Correctional Facility, and JOHN SUTHERS, Attorney General, State of Colorado, Respondents.
ORDER TO DISMISS IN PART
MICHAEL J. WATANABE, District Judge.
This case is before this Court pursuant to the Order of Reference entered May 8, 2015, and the parties' unanimous consent to disposition of this action by a United States Magistrate Judge.
Applicant Jerry L. Chase is a prisoner in the custody of the Colorado Department of Corrections. Mr. Chase has filed a pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Docket No. 1) ("the Application") challenging the validity of his conviction and sentence in Grand County District Court case number 08CR147. On June 13, 2014, Magistrate Judge Boyd N. Boland 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 July 1, 2014, Respondents filed a Pre-Answer Response (Docket No. 9) arguing that claim 3 in the Application is procedurally defaulted and that claim 4(b) is not cognizable in a habeas corpus action. Respondents concede that the Application is timely and that Mr. Chase's other claims are exhausted. On July 16, 2014, Mr. Chase filed "Applicant's Reply to Preliminary Response" (Docket No. 10).
The Court must construe the Application and other papers filed by Mr. Chase 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 part.
Mr. Chase was charged with various offenses for sending a series of threatening emails to a number of recipients after an eviction notice was posted on the door of his apartment.
After a two-day jury trial, the jury convicted Chase of three counts of felony stalking, one for each of the three named victims. He was also convicted of... three misdemeanor counts of harassment by computer. The court sentenced Chase to the maximum presumptive sentence of four years on each of the felony counts, ordering that the sentences run consecutively, for a cumulative prison sentence of twelve years.
People v. Chase, No. 09CA1908, slip op. at 5 (Colo.App. Mar. 14, 2013) (Docket No. 9-3 at 6). The judgment of conviction and the sentences imposed were affirmed on direct appeal. See id. On April 7, 2014, the Colorado Supreme Court denied Mr. Chase's petition for writ of certiorari on direct appeal. ( See Docket No. 9-5.)
The Application was filed on June 12, 2014. In claim 1 Mr. Chase contends the evidence was insufficient to prove beyond a reasonable doubt: (a) that he made a credible threat to the named victims; and (b) that subsequent communications were repeated or in connection with any threat. He contends in claim 2 that there was insufficient evidence to establish subject matter jurisdiction for counts two and three because no part of those offenses was committed in the State of Colorado. He contends in claim 3 that his rights under the Due Process, Equal Protection, and Double Jeopardy Clauses were violated because the trial court failed to respond directly to a jury question about subject matter jurisdiction. Finally, he contends in claim 4 that § 18-9-111(4)(B)(II) of the Colorado Revised Statutes is unconstitutional as applied because: (a) the email communications are protected by the First Amendment; and (b) his right to equal protection was violated. As noted above, Respondents argue that claim 4(b) is not a cognizable federal constitutional claim. Mr. Chase states in his reply to the Pre-Answer Response that he will not contest this argument. Therefore, claim 4(b) will be dismissed.
II. ONE-YEAR LIMITATION PERIOD
Respondents concede that this action is not barred by the one-year limitation period in 28 U.S.C. § 2244(d).
III. EXHAUSTION OF STATE REMEDIES
Respondents concede that claims 1(a), 1(b), 2, and 4(a) in the Application are exhausted. However, Respondents argue that claim 3 is unexhausted and procedurally barred.
Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus may not be granted unless it appears that the applicant has exhausted state remedies or that no adequate state remedies are available or effective to protect the applicant's rights. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is satisfied once the federal claim has been presented fairly to the state courts. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the federal issue ...