United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Shauntiel Denelle Goree, is a prisoner in the custody of the Colorado Department of Corrections. Ms. Goree has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). Ms. Goree is challenging the validity of her conviction and sentence in Arapahoe County District Court case number 94CR782.
On March 26, 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 28, 2015, Respondents filed their Pre-Answer Response (ECF No. 12) arguing that the application is barred by the one-year limitation period. On June 9, 2015, Ms. Goree filed "Applicant's Reply to Respond[e]nt[s'] Pre-Answer Response" (ECF No. 16).
The Court must construe the application and other papers filed by Ms. Goree liberally because she 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 as untimely.
The Colorado Court of Appeals described the relevant factual and procedural background as follows:
In 1994, defendant and two accomplices stabbed two women to death. The People charged defendant with two counts of first degree murder after deliberation; two counts of felony murder; one count each of conspiracy, burglary, and robbery; and three crime of violence counts. Before trial, the prosecution proposed a plea agreement to defendant pursuant to which she would plead guilty to attempted second degree murder and agree to testify against her codefendants, and the prosecution, in exchange, would seek a sentence of no more than twelve years in prison for the offense. Defendant rejected that offer.
A jury convicted defendant of all counts, and the district court sentenced her to four consecutive life sentences without the possibility of parole on each of the first degree murder and felony murder convictions, and additional consecutive prison terms totaling ninety-six years on the remaining convictions. On direct appeal, a division of this court vacated defendant's first degree murder and felony murder convictions because they merged, remanded the case for correction of the mittimus to show that defendant was convicted of one first degree murder count per victim, and affirmed the remainder of the convictions and sentences. See People v. Goree, (Colo.App. No. 95CA0571, Dec. 12, 1996) (not published pursuant to C.A.R. 35(f)).
In December 2007, defendant filed a cursory Crim. P. 35(c) motion which was supplemented by court-appointed counsel in March 2011. In the supplemental motion, defendant alleged that she had rejected the plea offer because her codefendant had threatened her and her family if she accepted it, and, because the two attorneys who represented her throughout her trial had failed to investigate those threats, she had received ineffective assistance of counsel.
Following a hearing at which defendant, her mother, her trial attorneys and the prosecuting attorney testified, the court denied defendant's motion in a detailed written order. The court found, based on the testimony of her trial attorneys and her interactions with the codefendant during the trial, that counsel neither knew about the threat or had any reason to suspect that she had rejected the plea because of a threat. Thus, because counsel were unaware of the threat, the court concluded that their failure to investigate the same could not constitute deficient performance, and her ineffective assistance of counsel claim necessarily failed.
People v. Goree, No. 12CA0447, slip op. at 1-3 (Colo.App. Aug. 22, 2013) (ECF No. 12-8 at 2-4). On June 16, 2014, the Colorado Supreme Court denied Ms. Goree's petition for writ of certiorari in the state court postconviction proceedings. ( See ECF No. 12-10.)
Ms. Goree initiated this action on March 20, 2015, asserting two claims for relief. She first claims trial counsel were ineffective by failing to investigate and make the trial court aware of her codefendant's threats, which caused her to reject a favorable plea agreement. She contends in her second claim that her Fifth and Sixth Amendment rights were violated because the trial court denied her motions for a severance.
As noted above, Respondents argue that the application 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 ...