United States District Court, D. Colorado
ORDER STAYING CASE
Philip A. Brimmer United States District Judge
Applicant, Angel Quintana, a state prisoner in the custody of the Colorado Department of Corrections, currently is incarcerated at the Colorado State Penitentiary in Cañon City, Colorado. Applicant initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 1] . He is serving a sentence imposed by the District Court for the City and County of Denver, Colorado in Case No. 04CR2291.
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 17, 2015 [Docket No. 12]. Applicant filed a Reply on September 3, 2015 [Docket No. 13].
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.
I. RELEVANT FACTUAL AND PROCEDURAL HISTORY
On direct appeal, the Colorado Court of Appeals described the relevant factual background for Mr. Quintana’s convictions as follows:
After B.M. broke up with defendant at a local restaurant in Denver, B.M. and her sister, S.P. (the victims), drove to a different restaurant where they socialized with others in the restaurant’s parking lot. B.M. was talking with T.S., a male friend of hers, in her car. T.S. was sitting in the driver’s seat, and B.M. was crouched alongside him, “in the door jamb, ” showing him the televisions that were in the car. S.P. was in the passenger’s seat of the car talking to another man. Shortly thereafter, B.M. saw defendant rapidly approaching, “yelling, cursing, ” and shooting at the car. Defendant shot approximately four bullets, one of which hit the window of the car door. T.S. jumped out of the car and ran away. As he was running away, defendant fired a shot in his direction, but T.S. was not hit.
Defendant grabbed B.M., threw her into the driver’s seat, got into the backseat of the car, and told her to drive. Evidence was conflicting whether defendant ordered S.P. to get into the car or whether S.P. was already in the car then. In any event, S.P., who was in the passenger’s seat, screamed at defendant, asking him what he was doing, and in response, defendant hit her in the mouth. B.M., having driven a few feet, put the car in park, and told S.P. to get out of the car. When B.M. attempted to exit the car, defendant shot her in the hip. B.M. tried to run, but she fell down because her leg was numb from the gunshot wound. As S.P. came around the car to see if B.M. was okay, defendant picked up B.M. and put her in the passenger’s seat of the car. He then put S.P. in the backseat of the car.
Defendant drove the victims to a deserted field, put on gloves, and said that he had to kill B.M., because she had “f***** up” and tried “to play him, ” meaning that she had “made him feel stupid.” However, defendant had no more bullets. B.M. said she was sorry and asked him to take her to the hospital. Defendant refused and instead took the victims to his mother’s house where B.M. began “shaking really bad” and begged defendant to take her to the hospital. Eventually, defendant agreed to take B.M. to the hospital with the understanding that she would tell the police that she was shot in a drive-by shooting.
Initially, both victims told the police that B.M. had been shot in a drive-by shooting. However, in a second interview with the police, B.M. admitted that defendant shot her, but did not provide defendant’s last name.
Defendant was charged with one count of criminal attempt to commit first degree murder against B.M., one count of first degree assault against B.M., and two counts of second degree kidnapping with a deadly weapon (one count against B.M. and one count against S.P.). After a trial, the jury found defendant not guilty of attempt to commit first degree murder, but guilty of the lesser included offense of criminal attempt to commit manslaughter. The jury also found defendant guilty of the remaining charges. Defendant was sentenced to a total of forty-eight years in the custody of the Department of Corrections.
Docket No. 12-3, pp. 2-4.
After unsuccessfully moving for a sentence reduction, Applicant filed a direct appeal. Docket No. 12-2 (opening brief). On October 28, 2010, the Colorado Court of Appeals affirmed. Docket No. 12-3 (People v. Quintana, No. 07CA1381 (Colo. Ct. App. Oct. 28, 2010) (not published)). On March 14, 2011, the Colorado Supreme Court denied certiorari review. Docket No. 12-5.
On January 3, 2012, Mr. Quintana filed a post-conviction motion pursuant to Rule 35 of the Colorado Rules of Criminal Procedure with the trial court. On August 17, 2012, the trial court denied the motion. On September 4, 2014, the Colorado Court of Appeals affirmed. Docket No. 12-8 (People v. Quintana, No. 12CA1926 (Colo. Ct. App. September 4, 2014) (not published)). The Colorado Supreme Court denied certiorari on April 20, 2015. Docket No. 12-10.
On July 23, 2015, Applicant filed his present Application under § 2254 in this action raising the following claims:
(1) speedy trial rights were violated;
(2) ineffective assistance of counsel:
(A) first trial counsel:
(i) failed to completely investigate all ...