United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND FOR ANSWER
R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE
Applicant, Cesar Pasillas-Sanchez, is in the custody of the Colorado Department of Corrections (CDOC) at the Arkansas Valley Correctional Facility in Ordway, Colorado. He has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging the validity of convictions and sentences imposed in the District Court of Jefferson County, Colorado. Mr. Pasillas-Sanchez has paid the $5.00 filing fee.
On September 9, 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 (ECF No. 11) on September 24, 2015. Applicant filed a Reply (ECF No. 14) on November 16, 2015, after obtaining an extension of time.
The Court construes Mr. Pasillas-Sanchez's filings 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 act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the Application, in part.
I. Background and State Court Proceedings
On August 4, 2005, Applicant was convicted in Jefferson County District Court Case No. 03CR783 of second-degree murder, two counts of theft by receiving, three counts of possession of a controlled substance, and three special offender counts. (ECF No. 1, at 2, 4; ECF No. 11-1 at 7-10). He was sentenced to an aggregate 96-year prison term with the CDOC. (ECF No. 1 at 2).
Applicant's conviction was affirmed on direct appeal in People v. Pasillas-Sanchez, 214 P.3d 520 (Colo.App. 2009) (Pasillas-Sanchez I). The Colorado Supreme Court denied Applicant's petition for certiorari review on August 31, 2009. (ECF No. 11-6).
On January 25, 2010, Applicant filed a motion for reconsideration of his sentence, pursuant to Colo. Crim. P. Rule 35(b), which was denied by the state district court on March 22, 2010. (ECF No. 11-1 at 19-20). Applicant did not appeal the trial court's order. (Id. at 19).
On November 10, 2010, Applicant filed a motion for post-conviction relief pursuant to Colo. Crim. P. Rule 35(c). (Id.). The trial court denied the motion and the supplemental motion filed by court-appointed counsel. (Id. at 18-19). The Colorado Court of Appeals affirmed the trial court's order in People v. Pasillas-Sanchez, No. 13CA0097 (Colo.App. Dec. 11, 2014) (unpublished) (Pasillas-Sanchez II). (ECF No. 11 -10). The Colorado Supreme Court denied Applicant's petition for certiorari review on June 22, 2015. (ECF No. 11-12).
On July 29, 2015, Applicant filed his federal application under 28 U.S.C. § 2254 raising the following claims:
1. Applicant was denied counsel of his choice when the trial court disqualified defense counsel because he was a potential witness. (ECF No. 1. at 10).
2. Applicant was denied his right to a fair trial when the trial court declined to require the prosecution to disclose the statements of a defense expert made to the prosecution's investigator. (Id.).
3. Applicant was denied his right to a fair trial when the trial court denied his challenge for cause to a prospective juror. (Id.).
4. Applicant was denied his right to a fair trial when the trial court denied his motion to sever the theft by receiving counts. (Id.).
5. Applicant's 96-year sentence is excessive and violated his right to fair sentencing.
6. Applicant's Sixth Amendment right to the effective assistance of counsel was violated because counsel failed to investigate critical issues. (Id.).
7. Applicant's Sixth Amendment right to the effective assistance of counsel was violated because counsel failed to consult experts necessary to the defense. (Id.).
8. Applicant's Sixth Amendment right to the effective assistance of counsel was violated because Ain pre-trial, trial, and post-trial situations involving competence, deligence [sic] scope of representation, and advising, as well as other deficiencies." (Id. at 11).
9. Applicant's Sixth Amendment right to the effective assistance of counsel was violated because counsel Afil[ed] a petition for writ of certiorari that met none of the criteria for ...