United States District Court, D. Colorado
ORDER OF DISMISSAL
Lewis T. Babcock,
Applicant, Joseph Medina, is a prisoner in the custody of the Colorado Department of Corrections, currently incarcerated at the Fremont Correctional Facility in Canon City, Colorado. On June 22, 2015, Mr. Medina, acting pro se, filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) (the “Application”) challenging the validity of his Colorado conviction and sentence in Denver County District Court case number 95CR3977.
On September 11, 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. (ECF No. 10). Respondents filed their Pre-Answer Response on October 2, 2015 raising both the defenses of timeliness and failure to exhaust state court remedies. (ECF No. 14). Applicant filed a Reply on October 21, 2015. (ECF No. 15).
The Court must construe the filings by Mr. Medina 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, Mr. Medina’s § 2254 application will be dismissed as time-barred under 28 U.S.C. § 2244(d).
Applicant is serving a sentence of life without parole as a result of his conviction for first-degree murder. The judgment of conviction and the sentence were affirmed on direct appeal. See People v. Medina, No. 97CA0161 (Colo.App. Dec. 17, 1998) (unpublished) (ECF 14-7). Applicant filed a petition for writ of certiorari with the Colorado Supreme Court (ECF No. 14-6), but it was denied on July 19, 1999 (ECF No. 14-5).
On April 4, 2006, Applicant filed in the trial court a petition for postconviction relief pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (ECF No 14-1 at 17). On October 19, 2009, the trial court denied Mr. Medina’s postconviction motion. (ECF No. 14-4). The Colorado Court of Appeals affirmed the trial court’s order denying postconviction relief. See People v. Medina, No. 09CA2424 (Colo.App. Aug. 16, 2012) (unpublished) (ECF No. 14-2). Mr. Medina did not seek certiorari review in the Colorado Supreme Court.
The instant action commenced on June 22, 2015. Mr. Medina asserts the following four claims for relief in his Application:
1. Mr. Medina was denied a fair trial because one of the jurors knew the victim.
2. The trial court allowed testimony of gang membership as evidence to the jury in violation of due process.
3. Mr. Medina was denied his right to effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendment.
4. Mr. Medina was denied his right to effective assistance of appellate counsel in violation of the Sixth and Fourteenth Amendment.
(ECF No. 1 at 5-7).
II. ONE-YEAR LIMITATION PERIOD
Under 28 U.S.C. § 2244(d), the statute ...