United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, David Richard Carrillo, is currently incarcerated in Canon City, Colorado. On February 24, 2015, Applicant filed pro se 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 93CR1048. (ECF No. 1). In an order entered on March 24, 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. (ECF No. 6).
After receiving an extension of time, Respondents filed their Pre-Answer Response on April 22, 2015 asserting that the application was time-barred. (ECF No. 12). Applicant filed a Reply on May 5, 2015. (ECF No. 13).
The Court must construe the application and other papers filed by Mr. Carrillo 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 action will be dismissed as time-barred.
Applicant raises four claims in the Application: (1) the trial court violated his right to due process by dismissing a juror and replacing him with an alternate after the jury had already rendered a verdict favorable to him; (2) the trial court violated his right to due process by trying him with a co-defendant who was also the victim of a count of contributing to the delinquency of a minor; (3) his trial counsel was ineffective for not recognizing that being tried jointly with the co-defendant who was also the victim of a count created an actual conflict of interest; and (4) his trial counsel was ineffective for failing to seek having the jury instructed on a lesser non-included offense of accessory to a crime.
Mr. Carrillo was accused of participating in a gang killing. (ECF No. 12-5). He was tried by a jury along with a co-defendant, who was a juvenile at the time of the murder. The jury found Mr. Carrillo guilty of first degree murder, conspiracy to commit first degree murder, and contributing to the delinquency of a minor. ( Id. ). On March 23, 1995, the trial court sentenced Mr. Carrillo to life in prison for the murder, twenty years in prison for conspiracy, and eight years in prison for contributing to the delinquency of a minor. (ECF 12-1 at 15).
The judgment of conviction and the sentence were affirmed by the Colorado Court of Appeals on direct appeal on March 20, 1997. See People v. Carrillo, 946 P.2d 544 (Colo.App. 1997) (ECF No. 12-3). On February 22, 1999, the Colorado Supreme Court also affirmed his conviction. See People v. Carrillo, 974 P.2d at 478 (Colo. 1999) (ECF No. 12-5).
On June 20, 2000, Mr. Carrillo filed a habeas corpus application with this court. Carrillo v. Williams, 00-cv-1261, (ECF No. 12-7). On June 7, 2001, he filed a motion to voluntarily dismiss his habeas application, which the court granted without prejudice on January 4, 2002. ( Id. )
On August 5, 2002, Mr. Carrillo filed a pro se Crim. P. 35c post-conviction motion asserting ineffective assistance of counsel during his trial. (ECF No. 12-1 at 7). A supplemental post-conviction motion was filed on December 9, 2005 after Mr. Carrillo retained counsel. ( Id. at 6).
After holding a hearing on the motion, the court issued a written order denying Mr. Carrillo's 35(c) motion on December 28, 2006. (ECF 12-1 at 5). On appeal, the Colorado Court of Appeals affirmed. See People v. Carrillo, No. 07CA0267 (Colo.App. Oct. 16, 2008) (ECF No. 12-9). On March 9, 2009, the Colorado Supreme Court denied certiorari review. (ECF No. 12-10).
While the appeal of his post-conviction motion was still pending, on December 13, 2007, Mr. Carrillo filed a second post-conviction motion through newly retained counsel. ( See ECF No. 12-1 at 4). The court held a three-day evidentiary hearing on Mr. Carrillo's second post-conviction motion. ( See id. at 2). The court issued a written order denying Mr. Carrillo's second post-conviction motion on July 1, 2011. ( See id. ). The Colorado Court of Appeals confirmed. People v. Carrillo, No. 11CA1644 (Colo.App. Aug. 8, 2013) (ECF No. 12-12). The Colorado Supreme Court denied certiorari review on July 28, 2014. (ECF No. 12-14). Mr. Carrillo filed a petition for writ of certiorari to the U.S. Supreme Court, which was denied on December 8, 2014. See Carrillo v. Colorado, 135 S.Ct. 756 (2014).
On December 22, 2014, Mr. Carrillo filed a motion to correct an illegal sentence pursuant to Crim. P. 35(a). (ECF No. 12-1 at 1). The court denied this motion on January 13, 2015. ( Id. ). On February 9, 2015, Mr. Carrillo filed a motion to reduce the restitution award by $30.00, which the court granted the same day. ( Id. ).
The instant habeas corpus application was filed on February 25, 2015.
Respondents concede that Mr. Carrillo has exhausted all of the claims presented in his habeas application. However, Respondents argue that the application is time-barred.
Mr. Carrillo argues that the AEDPA one-year limitation clock started from the beginning when the trial court amended his sentence on February 9, 2015 by reducing the amount of restitution. (ECF No. 1 at 19 and No. 13 at 2). In the alternative, Mr. Carrillo argues he is entitled to equitable tolling because he was diligently pursuing his claims but faced ...