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Powell v. Arapahoe County District Court

United States District Court, D. Colorado

June 2, 2015

CROSBY LINCOLN POWELL, Applicant,
v.
ARAPAHOE COUNTY DISTRICT COURT, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant, Crosby Lincoln Powell, is a prisoner in the custody of the Federal Bureau of Prisons. Mr. Powell initiated this action while he was housed at a federal prison in California by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). On March 26, 2015, he filed an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 12). Mr. Powell is challenging the validity of his conviction and sentence in a Colorado state court case, Arapahoe County District Court case number 06CR2664.

On April 15, 2015, 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 April 30, 2015, Mr. Powell filed a motion (ECF No. 20) asking the Court to stay these proceedings because he was in transit to Colorado to attend a hearing in his federal criminal case and did not have access to his legal papers. On May 6, 2015, Respondents filed their Pre-Answer Response (ECF No. 22). On May 11, 2015, Mr. Powell filed a notice of change of address indicating he currently is confined at the Federal Correctional Institution at Englewood, Colorado. On May 12, 2015, Mr. Powell filed his reply (ECF No. 24) to the Pre-Answer Response.

The Court must construe the application and other papers filed by Mr. Powell 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. The motion for a stay will be denied as moot.

On January 15, 2009, Mr. Powell agreed to plead guilty in Arapahoe County District Court case number 06CR2664 to one count of theft and he was sentenced to a suspended twelve-year prison term and six years of probation. ( See ECF No. 22-1 at 4-8.) He did not file a direct appeal.

On April 12, 2013, the state filed a complaint for revocation of probation citing the existence of a federal conviction, new charges pending in state court, and a failure to pay restitution. ( See ECF No. 12 at 50-51.) On April 17, 2013, a warrant was issued for his arrest and, on April 26, 2013, Mr. Powell was arrested on that warrant. ( See ECF No. 22-1 at 15-16.)

On May 19, 2014, Mr. Powell filed in the trial court a motion pursuant to the Interstate Agreement on Detainers Act ("IAD") to dispose of the warrant and complaint for revocation of probation. ( See id. at 15.) On May 22, 2014, he filed a motion for postconviction relief pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. ( See id. ) On July 10, 2014, the trial court denied the IAD motion. ( See id. at 14.) Mr. Powell appealed from the order denying the IAD motion but, on November 18, 2014, the Colorado Court of Appeals dismissed the appeal without prejudice for lack of a final appealable order. ( See ECF Nos. 22-2, 22-3, 22-4.)

Mr. Powell asserts three claims for relief in the amended application. He contends in his first claim that venue was not proper under Colorado law because the offense occurred in the City and County of Denver and not Arapahoe County. Mr. Powell contends in his second claim that his constitutional right to due process was violated because the Arapahoe County District Court lacked jurisdiction over an offense in the City and County of Denver. Mr. Powell contends in his third claim that he has been denied a speedy disposition of the charges in the April 2013 complaint for revocation of probation.

Claim one in the amended application is a state law claim that does not raise a federal constitutional issue. "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Mr. Powell argues in support of claim one only that venue was improper as a matter of Colorado state law. He does not argue in claim one that his federal constitutional rights were violated in any way because of the alleged lack of proper venue. Therefore, Mr. Powell's first claim in the amended application may not be raised in a federal habeas corpus action pursuant to § 2254 and must be dismissed. Furthermore, even if Mr. Powell's first claim in the amended application could be construed liberally as a federal constitutional claim that is not repetitive of claim two in the amended application, the Court concludes that claim one, like claim two, is untimely as discussed below.

The Court also finds that claim three in the amended application is not cognizable in this habeas corpus action. Mr. Powell contends in claim three that he has been denied a speedy disposition of the charges in the April 2013 complaint for revocation of probation that is lodged as a detainer against him. However, the Supreme Court "has never held... that a prisoner subject to a probation-violation detainer has a constitutional right to a speedy probation-revocation hearing... [and] it is not clear that the purpose of vindicating a prisoner's constitutional right to a speedy trial is applicable at all in the context of probation-violation detainers." Carchman v. Nash, 473 U.S. 716, 731 n. 10 (1985). Therefore, claim three in the amended application also will be dismissed.

With respect to claim two in the amended application, Respondents contend the claim is barred by the one-year limitation period in 28 U.S.C. § 2244(d). That statute provides as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...

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