United States District Court, D. Colorado
ORDER OF DISMISSAL
Lewis T. Babcock, Senior Judge, United States District Court.
Applicant, Albert Peter Grenier, is a prisoner in the custody of the Colorado Department of Corrections and currently is incarcerated at the Sterling Correctional Facility in Sterling, Colorado. Mr. Grenier filed pro se a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 challenging the validity of his conviction in Arapahoe County, Colorado, district court case number 98CR1850.
The Court must construe liberally Mr. Grenier’s filings 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. Because Mr. Grenier is challenging a conviction in state court, the amended § 2255 motion will be treated as an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, the Court will dismiss the habeas corpus application for lack of jurisdiction.
Mr. Grenier was convicted by a jury in Arapahoe County District Court case number 98CR1850 on charges of first-degree premeditated murder and abuse of a corpse. The trial court sentenced him to life imprisonment.
On March 6, 2008, the Colorado Court of Appeals affirmed on direct appeal. See People v. Grenier, No. 00CA1992 (Colo. Ct. App. Mar. 6, 2008) (not published). On February 17, 2009, the Colorado Supreme Court denied certiorari review. Mr. Grenier has not filed any postconviction motions in state court.
This is the third habeas corpus action that Mr. Grenier has filed attacking his conviction in Arapahoe County District Court case number 98CR1850. The first habeas corpus application Mr. Grenier filed in this Court was dismissed as procedurally barred. See Grenier v. Hartley, No. 09-cv-02553-ZLW (D. Colo. Dec. 17, 2009). The second habeas corpus application Mr. Grenier filed in this Court was dismissed for lack of jurisdiction as successive. See Grenier v. Hartley, No. 10-cv-02926-BNB (D. Colo. Jan. 26, 2011). "[T]he court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record." Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001).
In No. 09-cv-02553-ZLW, Mr. Grenier failed to raise any of his asserted claims as a federal constitutional claim in the state courts, was barred from doing so because he no longer had an adequate and effective state remedy available to him, and failed to demonstrate cause and prejudice or a fundamental miscarriage of justice to excuse his default. Therefore, the Court denied the application and dismissed the action in No. 09-cv-02553-ZLW as procedurally barred. Judgment was entered on the same day. On April 26, 2010, the United States Court of Appeals for the Tenth Circuit (Tenth Circuit) dismissed the appeal for failure to prosecute. See Grenier v. Hartley, No. 10-1093 (10th Cir. Apr. 26, 2010).
In No. 10-2926, Mr. Grenier raised three claims:
1. the trial court erred in finding that his confession was voluntary, not coerced;
2. the limiting instruction concerning his sanity failed to cure faulty legal instructions and violated his privilege against self-incrimination; and
3. the trial court’s erroneous interpretation of Colo. Rev. Stat. § 16-8-107(1)(a) concerning evidence acquired from a court-ordered examination permitted the jury to consider his examination statements and, thus, denied him an instruction on his right to use deadly force against an intruder in self-defense under the “Make My Day” law, Colo. Rev. Stat. § 18-1-704.5.
This Court determined that his claims were successive and that he had not received an order authorizing this Court to consider his second or successive habeas corpus application from the Tenth Circuit as required pursuant to 28 U.S.C. § 2244(b)(3)(A). See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam). In the absence of such authorization, the Court lacked jurisdiction to consider the merits of the claims asserted in a second or successive § 2254 application and dismissed the application on January 26, 2011. Judgment was entered on the same day. On March 28, 2011, the Tenth Circuit dismissed his appeal because he had presented no reasoned, non-frivolous argument in support of the issues he wanted to raise on appeal. See Grenier v. Hartley, No. 11-1059 (10th Cir. Mar. 28, 2011).
In the instant action, Mr. Grenier is raising the following claims.
1. The Arapahoe county trial court denied Defendant's request for an instruction on his right to use deadly physical force against an intruder in self-defense under the "Make My ...