United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Anthony Lolin Jimenez, Sr., is a prisoner in the custody of the Colorado Department of Corrections. Mr. Jimenez initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). On May 26, 2015, Mr. Jimenez filed an amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 7). Mr. Jimenez is challenging the validity of his conviction and sentence in Teller County District Court case number 00CR178.
On May 27, 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 June 4, 2015, Respondents filed their Pre-Answer Response (ECF No. 13) arguing that the application is untimely and that Mr. Jimenez's claims are unexhausted and procedurally barred. On June 18, 2015, Mr. Jimenez filed his reply (ECF No. 14) to Respondents' Pre-Answer Response.
The Court must construe the amended application and other papers filed by Mr. Jimenez 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.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Colorado Court of Appeals described the factual and procedural background as follows:
On August 20, 2000, defendant, Michael Easton, Nick Olan, and three other individuals began a "camping trip." Over the next few days, they smoked marijuana and drank alcohol at the campsite. Easton testified that during the camping trip he and defendant stole from a Home Depot store twice and a Hobby Lobby store once, and burglarized a cabin, to get money to buy alcohol, marijuana, cigarettes, and "supplies." Olan was with them during one of the Home Depot thefts, the Hobby Lobby theft, and the cabin burglary, but defendant and Easton dropped him off near his house on August 23. By that day, defendant and Easton were the only members of the original group still camping at the campsite.
On August 24, defendant and Easton picked up a fifteen-year-old girl, J.B., whom they did not know, on a street in Colorado Springs. They took her to the campsite where they held her for two days. Easton testified that both he and defendant sexually assaulted J.B., and that defendant suggested they kill J.B. because she "knew too much." Defendant bound J.B. with duct tape, and he and Easton carried J.B. to a stream where they drowned her. Defendant and Easton then removed J.B.'s clothing and jewelry as well as the duct tape, put her body in a sleeping bag, and drove to a small ravine near Trail Creek Road in Teller County, where they left J.B.'s body.
Late on September 8, 2000, defendant went to the Pikes Peak Mental Health Center (PPMH), in Colorado Springs. He told a counselor that he was having "visions" of a teenage girl being sexually assaulted and murdered by two men, and that he wanted her to ask the police to come get him so he could show them where the girl's body was. The counselor called the Teller County Sheriff's Office.
After a sheriff's deputy arrived at PPMH, defendant told the deputy what he had told the counselor. Defendant offered to go with the officer to find the victim's body. He, the deputy, and a sheriff's office sergeant then searched the Trail Creek Road area. Defendant directed them to several sites where they found nothing, but eventually he directed them to the victim's body. The officers then handcuffed defendant, took him into custody, and transported him to the Teller County Sheriff's Office.
Another sheriff's office sergeant and a district attorney's office investigator questioned defendant at length on September 9 and, at defendant's request, took him to a campsite where he said he and Easton had camped. At about 6:30 p.m. that day, the sergeant and the investigator arrested defendant. After they booked him into jail, they took him to a hospital to give biological samples. After defendant gave the biological samples, he directed the sergeant and the investigator to where he and Easton had "picked up" the victim.
The next day, defendant again asked to speak with the sergeant and the investigator. Defendant then related additional details about his visions and the incident.
The People charged both defendant and Easton with first degree murder, kidnapping, sexual assault, and conspiracy. The prosecution indicated that the People intended to seek the death penalty against both men. Easton entered into a plea agreement with the People, in which he agreed to plead guilty to second degree murder and second degree kidnapping and to testify truthfully in defendant's trial in exchange for a stipulated sentence of seventy-three years in the custody of the Department of Corrections and dismissal of all other charges.
Defendant's first trial ended in a mistrial. Before defendant's second trial, the prosecution decided not to seek the death penalty.
Defendant's theory of defense at trial was that the victim had willingly gotten into the car with him, Easton, and Olan; he never participated in preventing the victim from going anywhere; he did not sexually assault her or know that Easton or Olan had done so; and although he was physically present during the events leading to the victim's death, he did not cause her death or intend to kill her.
The jury in the second trial found defendant guilty of the lesser included offense of second degree murder and the lesser nonincluded offense of accessory to a crime, but was unable to reach verdicts on the kidnapping, sexual assault, and conspiracy charges. The court sentenced defendant to forty-eight years in the custody of the Department of Corrections on the murder conviction and six years incarceration on the accessory conviction, to be served consecutively.
People v. Jimenez, 217 P.3d 841, 849-50 (Colo.App. 2008). The Colorado Court of Appeals affirmed the convictions for second degree murder and accessory on direct appeal. See id. On October 19, 2009, the Colorado Supreme Court denied Mr. Jimenez's petition for writ of certiorari on direct appeal. ( See ECF No. 13-6.) On May 14, 2010, the trial court granted the prosecution's motion to dismiss the kidnapping, sexual assault, and conspiracy charges. ( See 13-1 at 17.)
On June 9, 2010, Mr. Jimenez filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. ( See ECF No. 13-1 at 17.) The trial court denied the Rule 35(c) motion and the Colorado Court of Appeals affirmed the trial court's order. See People v. Jimenez, No. 10CA1713 (Colo.App. Mar. 22, 2012) (ECF No. 13-2). Mr. Jimenez did not seek certiorari review in the Colorado Supreme Court.
On April 10, 2012, Mr. Jimenez filed in the trial court a postconviction motion "To Amend or Vacate Unauthorized Sentence" (ECF No. 13-1 at 16). On August 21, 2012, the trial ...