United States District Court, D. Colorado
ORDER OF DISMISSAL
Applicant, Grant Henry Stewart, is a prisoner in the custody of the Colorado Department of Corrections. Mr. Stewart 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 September 21, 2015, he filed on the proper form an amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Mr. Stewart is challenging the validity of his conviction and sentence in Fremont County District Court case number 06CR274.
On September 22, 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 September 30, 2015, Respondents filed their Pre-Answer Response (ECF No. 12) arguing that the application is barred by the one-year limitation period and that the constitutional claim Mr. Stewart is asserting is unexhausted and procedurally defaulted. On October 13, 2015, Mr. Stewart filed his Reply to Pre-Answer Response (ECF No. 13).
The Court must construe the amended application and other papers filed by Mr. Stewart 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 as untimely.
Mr. Stewart agreed to plead guilty to one count of “sex assault – victim under fifteen” in October 2006 and he received a deferred judgment and sentence for a period of four years. (See ECF No. 12-1 at 2, 9-10.) Following a revocation hearing on April 14, 2008, at which Mr. Stewart was found to have violated the conditions of his supervision, the trial court entered judgment and sentenced Mr. Stewart to an indeterminate term of two years to life in prison. (See Id. at 7-8.) Mr. Stewart did not appeal.
On May 6, 2008, Mr. Stewart filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See Id. at 7.) However, he subsequently withdrew the motion on June 19, 2008. (See id.) On June 23, 2009, Mr. Stewart filed in the trial court a postconviction motion pursuant to Rule 35(a) of the Colorado Rules of Criminal Procedure. (See id.) On August 3, 2009, in response to the trial court’s order to clarify the relief he was seeking, Mr. Stewart filed another Rule 35(a) motion. (See Id. at 6-7.) On September 4, 2009, the trial court denied the Rule 35(a) motion. (See id.) On October 15, 2009, Mr. Stewart filed in the trial court a second postconviction Rule 35(c) motion. (See Id. at 6.) On December 15, 2009, the trial court denied the second Rule 35(c) motion. (See id.) The state court docketing records indicate no further activity in Mr. Stewart’s case for nearly three years until September 20, 2012, when he filed a motion to waive probation supervision fees. (See id.) Mr. Stewart did not file another postconviction motion in the trial court until June 30, 2014, when he filed a third postconviction Rule 35(c) motion. (See id.) On September 23, 2014, the trial court denied the third Rule 35(c) motion. (See id.) Mr. Stewart did not appeal from the denial of any of these postconviction motions.
The trial court’s docketing records indicate that Mr. Stewart filed a letter on January 14, 2015, that was denied on January 20, 2015. (See id.) In response to the trial court’s denial of that letter, Mr. Stewart submitted to the state appellate courts a demand for habeas corpus relief that was docketed in the Colorado Supreme Court on January 30, 2015, as an original petition for writ of habeas corpus. (See ECF No. 12-4.) On May 14, 2015, the Colorado Supreme Court denied the original petition for writ of habeas corpus without addressing the merits of the claims asserted. (See ECF No. 12-6.)
Mr. Stewart initiated this action on August 28, 2015. He asserts one claim for relief contending his constitutional rights were violated because he was charged by information rather than indictment.
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 B
(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 was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) 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 ...