United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Application) [#1] filed August 17, 2012. The respondents filed an answer [#24], and applicant filed a reply [#25 & #26].
Because the applicant is proceeding pro se, I have construed his pleadings and other filings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I cannot act and have not acted as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. After reviewing the pertinent portions of the record, including the state court record [#21], I conclude that the Application must be denied.
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 2254 (habeas corpus, applicant in state custody).
The applicant, John Timothy Harrison, raises a single claim in his Application. He claims changes in the relevant Colorado sentencing statutes increased the severity of the parole component of his prison sentence after the date of the crime for which he is serving a sentence. This change, he argues, violates the ban on ex post facto laws stated in the Constitution of the United States. U.S. Const. art 1, § 10.
Mr. Harrison pleaded guilty in state court to sexual assault on a child by one in a position of trust, a class three felony under Colorado law. His plea and conviction are based on a sexual assault that occurred in December 2000. In May 2002, the state court sentenced Mr. Harrison to eight years to life in the Colorado Department of Corrections to be followed by an indeterminate period of parole. Mr. Harrison did not file a direct appeal of his conviction or sentence.
Shortly before Mr. Harrison was sentenced, §17-2-201(5)(a.5), C.R.S., was amended to add certain language. Mr. Harrison claims the parole component of his sentence was made more severe as a result of the amendment of §17-2-201(5)(a.5) in 2002, an amendment which took effect after the date of the crime of conviction. According to Mr. Harrison, the amendment caused his term of parole to change from a determinate period of parole not to exceed the maximum sentence imposed by the court, under subsection (a.5), to an indeterminate period of parole under subsection (a.7).
The respondents contend Mr. Harrison is not entitled to relief because his Application is untimely. In addition, in the view of the respondents, §17-2-201(5)(a.7), as that statute existed in 2000, properly controls the term of parole of Mr. Harrison. Even before the 2002 amendment, subsection (a.5) was not applicable to Mr. Harrison, the respondents assert. Rather, subsection (a.7) was always applicable to the crime of Mr. Harrison. Given these circumstances, the respondents contend, there is no violation of the Ex Post Facto Clause of article 1, § 10 of the Constitution.
Under the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), a habeas claim is timely raised if the habeas application is filed within one year of the date on which the challenged state judgment became final by the conclusion of direct review for the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). The time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward the AEDPA period of limitation. § 2244(d)(2). This includes a motion for reduction of sentence under the Colorado Rule of Criminal Procedure (Crim.P.) 35(b). Robinson v. Golder, 443 F.3d 718, 720-21 (10th Cir. 2006). However, a postconviction motion is not "properly filed, " and thus does not toll, if it does not comply with the state's "conditions to filing, " including the applicable statute of limitations. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005).
Under Crim. P. 35(a), there is no time limit to file a motion to correct an illegal sentence. Rule 35(b) permits a motion for reduction of sentence. Under Rule 35(b), such a motion must be filed within 126 days after the sentence was imposed or after a relevant ruling by a state appellate court.
On June 13, 2002, Mr. Harrison filed in the trial court a postconviction motion to "Delete Mandatory Parole as Unconstitutional Pursuant to Crim. P. Rule 35(a)." Pre-Answer Response [#14], Exhibit A (state court docket), p. 11. On September 13, 2002, Mr. Harrison filed with the trial court a postconviction motion for sentence reconsideration under Rule 35(b). Id., p. 10. On October 10, 2002, the trial court denied the Rule 35(a) motion. Id. On June 26, 2003, the trial court granted the Rule 35(b) motion after a hearing and reduced Mr. Harrison's sentence from eight years to life to four years to life. Id .; Transcript [#24-2], June 26, 2003 hearing. In 2004 and 2009, Mr. Harrison filed two additional motions under Rule 35(a), both of which were denied by the trial court. Order [#17], p. 3 (summary of motions filed in state court).
The Colorado Court of Appeals affirmed the denial of the 2004 and 2009 Rule 35 motions. People v. Harrison, 165 P.3d 859, 860 (Colo. Ct. App. 2007) ( Harrison I ); People v. Harrison, No. 09CA1670 (Colo. Ct. App. July 15, 2010) (unpublished) ( Harrison II ) (copy at Pre-Answer Response [#14], Exhibit H [#14-8], p. 3 (CM/ECF p. 4)). On August 27, 2007, the Colorado Supreme Court denied certiorari review in Harrison I. State Court Record, p. 250. On January 3, 2011, the Colorado Supreme Court denied certiorari review in Harrison II. Pre-Answer Response [#14], Exhibit K.
On May 6, 2011, Mr. Harrison filed another Crim. P. 35(a) postconviction motion. State Court Record, pp. 271-274. The trial court largely denied this motion on June 23, 2011. State Court Record, p. 275. However, the trial court amended its mittimus to read: "Parole shall be determined under the provisions of C.R.S. 18-1.3-1006[b], requiring the parole board to impose an indeterminate term of at least 20 years and a maximum of the remainder of the defendant's natural life." Id. This amendment of the mittimus was based on a statement of the Colorado Court of Appeals in Harrison II. Id. Mr. Harrison appealed the June 23, 2011, denial of his Rule 35(a) motion. Addressing this appeal, the Colorado Court of Appeals found that the May 6, 2011, Rule 35(a) motion and appeal of Mr. Harrison were "improper attempts to relitigate the issues decided in Harrison I and Harrison II. " Harrison III, No. 11CA1410 (Colo. Ct. App. Dec. 15, 2011) (unpublished) (copy at Pre-Answer Response [#14], Exhibit N [#14-14], p. 3 (CM/ECF p. 4)).
In his reply [#25], Mr. Harrison relies on his May 6, 2011, Rule 35 motion as a basis for showing that his Application in this case is timely. Reply [#25], pp. 2-4. Both the Rule 35 motion and the appeal were declared by the Colorado Court of Appeals to be improper attempts to re-litigate issues resolved in previous Rule 35 motions. Thus, the May 6, 2011, Rule 35 motion on which Mr. Harrison relies was not ...