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Daniel v. Raemish

United States District Court, D. Colorado

November 16, 2015

ARLUS DANIEL, JR., Applicant,
v.
RAEMISH, Executive Director Colorado Department of Corrections/ISP-I; and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior Judge United States District Court

Applicant, Arlus Daniel, Jr., initiated this action on August 20, 2015 by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). On October 29, 2015, Respondents filed a Pre-Answer Response in accordance with this Court’s March 18, 2015 Order (ECF No. 13).

The Court must construe the amended application liberally because Mr. Daniel 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 action will be dismissed.

Mr. Daniel is challenging the validity of his conviction in case 05CR384 in the Larimer County District Court. His sole claim is an ineffective-assistance claim based on trial counsel’s failure to raise certain defenses. This Court lacks jurisdiction to consider the claim because Mr. Daniel previously has filed a habeas corpus action challenging the validity of that same judgment.

In this regard, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244 provides in relevant part as follows

2244. Finality of determination
(a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.
(b) (1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
(3) (A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order ...

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