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Simpson v. Lind

United States District Court, D. Colorado

November 19, 2015

NORMAN SIMPSON, Applicant,
v.
RANDY LIND, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior Judge

I. Background

Applicant Norm Simpson is in the custody of the Colorado Department of Corrections (DOC) and currently is incarcerated at the Arkansas Valley Correctional Facility in Ordway, Colorado. Applicant has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 that challenges his conviction and sentence in State of Colorado Criminal Case No. 2000CR230. In an order entered on May 2, 2015, Magistrate Judge Gordon P. Gallagher directed 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 under 28 U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those affirmative defenses in this action.

Respondents filed a Pre-Answer Response, ECF No. 10, on June 15, 2015. After three requests for extensions of time to file a reply, and the extensions being granted, Applicant filed a Reply, ECF No. 17, on October 27, 2015.

Applicant raises four claims in the Application as follows:

(1) The jury instruction for first and second degree attempted murder violated his constitutional right to due process of law under the Fourteenth and Fifth Amendments;
(2) The jury instruction for first degree burglary violated his constitutional right to due process of law under the Fourteenth and Fifth Amendments;
(3) Denial of ineffective assistance of counsel as stated in the postconviction motion and supplements in state court; and
(4) Denial of right to confrontation based on the trial court admitting a videotape by a prosecution witness in violation of the Sixth Amendment.

Application, ECF No. 1, at 5-6 and 10.

II. Analysis

The Court must construe liberally the Application and Reply 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 Aassume the role of advocate for the pro se litigant." See Hall, 935 F.2d at 1110.

Applicant was found guilty by a jury trial on August 22, 2000, of second degree attempted murder, first degree burglary, trespassing, and menacing in Case No. 2000CR230 in the El Paso County District Court, ECF No. 10-1 at 4-5, and was sentenced on January 8, 2001, to sixteen years of incarceration in the DOC, id. at 3. Applicant appealed the conviction and sentence, which was affirmed on appeal. See People v. Simpson, 93 P.3d 551, No. 01CA0322 (Colo.App. Nov. 6, 2003). Applicant's petition for certiorari review to the Colorado Supreme Court (CSC) was denied on June 28, 2004. See ECF No. 10-8, Ex. H.

Regarding Applicant's initial postconviction motion filed in the state district court on June 30, 2004, ECF No. 10-1, Ex. A, at 20, the Colorado Court of Appeals, in Applicant's appeal of the June 30 postconviction motion, described the state court proceedings as follows:

Simpson appealed. A division of this court affirmed his convictions and sentence in People v. Simpson, 93 P.3d 551 (Colo.App. 2003).
Following his appeal, in June 2004, Simpson filed his initial Crim. P. 35(c) motion for postconviction relief. Effective July 1, 2004, the Colorado Supreme Court amended Crim. P. 35 to expressly preclude review of certain types of claims under subsections (c)(3)(VI) and (c)(3)(VII). Thereafter, in July 2004, November 2004, July 2006, November ...

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