United States District Court, D. Colorado
ORDER TO DISMISS
Lewis T. Babcock Senior United States District Judge
Applicant, Michael W. Bingham, is a prisoner in the custody of the Colorado Department of Corrections (CDOC). Applicant initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, ECF No. 1, after which he filed an amended application, ECF No. 10, at the Court’s direction. His application challenges the validity of his convictions in case 01CR430 in the Adams County District Court.
On July 28, 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 28, 2015 (ECF No. 18). Applicant filed a Reply on September 4, 2015 (ECF No. 19).
On September 28, the Court issued an Order directing Respondents to file a Response as to the exhausted claims. Respondents submitted a Response on October 7, 2015 (ECF No. 22). Applicant filed a Traverse on October 20, 2015 (ECF No. 23).
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 habeas corpus action.
A. Relevant Factual and Procedural History
Evidence at trial established that Applicant severely beat and sexually assaulted his wife and a jury found him guilty of several crimes sexual assault, second degree assault, third degree assault, and harassment-stalking. The trial court sentenced him to indeterminate and determinate sentences for a total of forty-eight years to life on the sexual assault charges and a cumulative twelve-year term, to be served consecutively, on the other counts. The conviction and sentences were affirmed on appeal. People v. Bingham (Colo.App. No. 01CA2483, Jan. 29, 2004) (not published pursuant to C.A.R. 35(f)).
On March 18, 2008, defendant filed a pro se Crim. P. 35(a) motion seeking to correct an illegal sentence. The court granted the motion, merged the sexual assault convictions, and amended the mittimus accordingly.
On September 15, 2008, defendant filed a pro se Crim. P. 35(a) motion arguing that the CDOC had improperly calculated his parole eligibility date (PED) following the issuance of the amended mittimus. The district court denied the motion, finding that the appropriate avenue for requesting relief was to file a complaint under C.R.C.P. 106 or a motion for declaratory judgment under C.R.C.P. 57.
On May 1, 2009, Applicant filed a “Motion to Amend Mittimus, ” raising the same issue regarding his parole eligibility date that he had raised in his earlier motion. The district court denied the motion. Applicant appealed and the CCA affirmed the lower court. People v. Bingham (Colo.App. No. 09CA1047, March 11, 2011) (unpublished).
Between 2010 and 2013, Bingham filed a series of post-conviction motions wherein he asserted the following claims: 1) the Attorney General’s office was estopped from contesting Bingham’s assertions because it had failed to respond to Bingham’s “Affidavit of Negative Averment”; 2) Bingham is a non-citizen national of the United States and therefore was not subject to the district court’s jurisdiction; 3) the district court did not have subject matter jurisdiction because the United States has been under martial law since 1860 or 1861, allegedly rendering the Colorado Criminal Code invalid; and 4) the district court lacked jurisdiction because the district court judge and the prosecutors had failed to take the proper oaths, relinquished their citizenship and became foreign entities, agencies, or states when they took the oaths that they did, and failed to register as agents of foreign principals as allegedly required. The district court summarily denied Bingham’s motions and the CCA affirmed this disposition in People v. Bingham (Colo.App. No. 13CA2215, Dec. 18, 2014) (unpublished).
Applicant filed the instant action on June 11, 2015 wherein he raises essentially the same claims he raised in his latest post-conviction motion. For the reasons set forth below, the Application for Writ of Habeas Corpus will be dismissed.
B. Standard of Review
In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a superstate appellate court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984). "When a federal district court reviews a state prisoner's habeas [application] pursuant to 28 U.S.C. § 2254 it must decide whether the [applicant] is ‘in custody in violation of the Constitution or laws or treaties of the United States.' The court does not review a judgment, but the lawfulness of the [applicant's] custody simpliciter." Coleman v. Thompson, 501 U.S. 722, 730 (1991).
Specifically, the Habeas Corpus Statute, 28 U.S.C. § 2254(d), provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Mr. Bingham bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
The Court reviews claims of legal error and mixed questions of law and fact pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The threshold question the Court must answer under § 2254(d)(1) is whether Mr. Bingham seeks to apply a rule of law that was clearly established by the Supreme Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law “refers to the holdings, as opposed to the d ...