United States District Court, D. Colorado
ORDER OF DISMISSAL
Lewis T. Babcock, Senior Judge United States District Court
Applicant David Lee Burkhart is in the custody of the Colorado Department of Corrections (DOC) and currently is incarcerated at the Freemont Correctional Facility in Canon City, Colorado. Applicant, acting pro se, initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Applicant was granted leave to proceed pursuant to 28 U.S.C. § 1915.
On October 26, 2015, Magistrate Judge Gordon P. Gallagher directed Respondent to file a Response to the Application. On October 30, 2015, Respondent filed a Response, ECF No. 8. Applicant filed a Reply on December 1, 2015 (ECF No. 13). The Court, therefore, will proceed to address this action.
The Court must construe the Application liberally because Applicant is a pro se litigant. 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 a pro se litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the action will be dismissed.
A. Relevant Procedural History
The Court of Appeals for Colorado set forth the following relevant background for this action.
The prosecution brought multiple charges against defendant stemming from the sexual assault of his stepson. As part of a plea agreement, defendant entered a guilty plea for two counts of sexual exploitation of a child. The district court sentenced defendant to eight years of probation for each count to run concurrently. A condition of defendant's probation was that he would be supervised on sex offender intensive supervision probation, which required him to "attend and actively participate in a sex offender evaluation and treatment program" and "successfully complete the program to the satisfaction of the probation officer and the treatment provider."
About a month after his sentencing, defendant's probation officer filed a complaint seeking to revoke defendant's probation. The probation officer alleged that defendant violated three conditions of his probation: he (1) lived in a residence with a minor, (2) changed his residence without prior approval, and (3) was terminated from his mandated treatment program. The district court found that defendant violated the requirement that he not share a residence with a minor and, as a result, was terminated from his treatment program. The court therefore revoked his probation. The Probation Department and prosecution recommended that defendant be sentenced to the Department of Corrections. The district court, however, concluded the recommended punishment was too "harsh" and instead sentenced defendant to ninety days in the county jail and reinstated defendant's probation.
Not long thereafter, defendant's probation officer filed another complaint to revoke defendant's probation. The officer based her complaint on defendant's termination from his mandated treatment program. According to the director of the treatment program, the program was "unable to realistically treat, manage, and/ or contain [defendant], as he refuse[d] to be accountable in the community." The director concluded that defendant's "risk and lack of accountability necessitate[d] a higher level of treatment, " specifically in the Department of Corrections, because defendant violated several treatment rules by
• Failing to abide by the program's two-man accountability rule while in the community.
• Using computer and video games without permission.
• Having a conversation with a female neighbor without prior approval.
• Failing to complete his assignments.
• "[D]emonstrat[ing] an aggressive demeanor."
• Continuing to deny forcing anal sex on the victim, as alleged in the underlying conviction.
The district court found that defendant violated the condition of his probation requiring him to attend and actively participate in a sex offender treatment program. The court specifically stated that it considered defendant's "overall response" to treatment, rather than any one factor in isolation. It also recognized the "extraordinary step" of the treatment program to readmit defendant after his initial termination. The district court then found defendant "inappropriate for probation" and imposed a sentence to the Department of Corrections for six years.
People v. Burkhart (Colo.App. No. 09CA1846, April 11, 2013) (ECF No. 8-4, pp. 3-5).
The CCA affirmed the district court’s order revoking his probation on April 11, 2013 (ECF No. 8-4). On May 19, 2014, the Colorado Supreme Court denied Applicant’s petition for certiorari.
On September 25, 2014, Applicant filed a motion for sentence reconsideration pursuant to Colo. Crim. P. 35(b). The post-conviction court denied the motion on November 12, ...