United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND TO ANSWER
Philip A. Brimmer United States District Judge
Applicant, Angel Quintana, a state prisoner in the custody of the Colorado Department of Corrections, is currently incarcerated at the Colorado State Penitentiary in Cañon City, Colorado. Applicant initiated this action by filing pro se an Application for a Writ of Habeas Corpus. He is serving sentences for judgments of conviction imposed by the District Court for the City and County of Denver, Colorado in case 04CR2291.
On July 2, 2015, Magistrate Judge Gordon P. Gallagher directed Respondents to file a Pre-Answer Response addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). Respondents submitted a Pre-Answer Response on August 17, 2015 [Docket No. 12]. Applicant filed a Reply on September 3, 2015 [Docket No. 13].
The Court must construe the Application liberally because Applicant 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 does not “assume the role of advocate for the pro se litigant.” See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the action in part and will order Respondents to file an answer addressing the merits of the remaining claims.
I. RELEVANT FACTUAL AND PROCEDURAL HISTORY
On direct appeal, the Colorado Court of Appeals described the relevant factual background for Mr. Quintana’s convictions as follows:
After B.M. broke up with defendant at a local restaurant in Denver, B.M. and her sister, S.P. (the victims), drove to a different restaurant where they socialized with others in the restaurant’s parking lot. B.M. was talking with T.S., a male friend of hers, in her car. T.S. was sitting in the driver’s seat, and B.M. was crouched alongside him, “in the door jamb, ” showing him the televisions that were in the car. S.P. was in the passenger’s seat of the car talking to another man. Shortly thereafter, B.M. saw defendant rapidly approaching, “yelling, cursing, ” and shooting at the car. Defendant shot approximately four bullets, one of which hit the window of the car door. T.S. jumped out of the car and ran away. As he was running away, defendant fired a shot in his direction, but T.S. was not hit.
Defendant grabbed B.M., threw her into the driver’s seat, got into the backseat of the car, and told her to drive. Evidence was conflicting whether defendant ordered S.P. to get into the car or whether S.P. was already in the car then. In any event, S.P., who was in the passenger’s seat, screamed at defendant, asking him what he was doing, and in response, defendant hit her in the mouth. B.M., having driven a few feet, put the car in park, and told S.P. to get out of the car. When B.M. attempted to exit the car, defendant shot her in the hip. B.M. tried to run, but she fell down because her leg was numb from the gunshot wound. As S.P. came around the car to see if B.M. was okay, defendant picked up B.M. and put her in the passenger’s seat of the car. He then put S.P. in the backseat of the car.
Defendant drove the victims to a deserted field, put on gloves, and said that he had to kill B.M., because she had “f***** up” and tried “to play him, ” meaning that she had “made him feel stupid.” However, defendant had no more bullets. B.M. said she was sorry and asked him to take her to the hospital. Defendant refused and instead took the victims to his mother’s house where B.M. began “shaking really bad” and begged defendant to take her to the hospital. Eventually, defendant agreed to take B.M. to the hospital with the understanding that she would tell the police that she was shot in a drive-by shooting.
Initially, both victims told the police that B.M. had been shot in a drive-by shooting. However, in a second interview with the police, B.M. admitted that defendant shot her, but did not provide defendant’s last name.
Defendant was charged with one count of criminal attempt to commit first degree murder against B.M., one count of first degree assault against B.M., and two counts of second degree kidnaping with a deadly weapon (one count against B.M. and one count against S.P.). After a trial, the jury found defendant not guilty of attempt to commit first degree murder, but guilty of the lesser included offense of criminal attempt to commit manslaughter. The jury also found defendant guilty of the remaining charges. Defendant was sentenced to a total of forty-eight years in the custody of the Department of Corrections. This appeal followed.
Docket No. 12-3, pp. 2-4.
After unsuccessfully moving for a sentence reduction, Applicant filed a direct appeal. Docket No. 12-2 (opening brief). On October 28, 2010, the Colorado Court of Appeals affirmed. Docket No. 12-3 (People v. Quintana, No. 07CA1381 (Colo. Ct. App. Oct. 28, 2010) (not published)) (Quintana I). On March 14, 2011, the Colorado Supreme Court denied certiorari review. Docket No. 12-5.
On January 3, 2012, Mr. Quintana filed a post-conviction motion pursuant to Rule 35 of the Colorado Rules of Criminal Procedure with the trial court. On August 17, 2012, the trial court denied the motion. On September 4, 2014, the Colorado Court of Appeals affirmed, Docket No. 12-8 (People v. Quintana, No. 12CA1926 (Colo. Ct. App. September 4, 2014) (not published)) (Quintana II). The Colorado Supreme Court denied certiorari on April 20, 2015. Docket No. 12-10.
On July 23, 2015, Applicant filed his present Application under § 2254 in this action raising the following claims:
(1) speedy trial rights were violated;
(2) ineffective assistance of counsel:
(A) first trial counsel:
(i) failed to completely investigate all lines of defense;
(ii) deceived applicant into believing that counsel would present an innocence-based defense and that prior counsel withdrew based upon a witness conflict;
(iii) failed to share exculpatory information;
(iv) misinformed the trial court about his reasons for withdrawing; and
(v) violated applicant’s federal constitutional speedy trial right;
(B) second trial counsel:
(i) failed to file a motion to dismiss based on violation of speedy trial right;
(ii) failed to pursue exculpatory evidence such as witnesses;
(iii) failed to object to Applicant’s arrest as illegal when there was evidence that he was not at the crime scene;
(iv) failed to investigate and present the defenses of actual innocence, complete denial, and alibi;
(v) failed to prove that the evidence against applicant was not overwhelming, applicant was not at the scene, and law enforcement coached the witnesses;
(vi) “refused to confront personal knowledge of the prosecution’s misconduct on record”;
(vii) failed to investigate the prosecution’s plan to turn trial counsel against applicant by introducing threatening jail letters against applicant;
(viii) “took part in hiding and not disclosing on record the fact that the prosecution presented him with a second coached letter of threats a week before trial started”;
(ix) made a judicial admission of applicant’s guilt to the jury, which infringed on applicant’s right to plead guilty and testify;
(x) prejudiced applicant’s appeal by “keep[ing] a lot of stuff of [sic] the record”;
(xi) had a complete breakdown in communication;
(xii) violated the attorney-client privilege;
(xiii) failed to investigate law enforcement witnesses at the jail and court house;
(xiv) failed to challenge the imposition of three illegal sentence enhancers for a crime of violence, which were not determined by the jury;
(xv) was not prepared for trial, failed to properly cross-examine witnesses to discover the real ...