United States District Court, D. Colorado
ORDER FOR STATE COURT RECORD AND TO ANSWER
Gordon P. Gallagher United States Magistrate Judge
Applicant, Raymond Armelino, is in the custody of the Colorado Department of Corrections (CDOC). He has filed, through counsel, an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging his conviction in Jefferson County District Court case number 2006CR2403. Mr. Armelino has paid the $5.00 filing fee. (ECF No. 1).
On December 2, 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). (ECF No. 3). Respondents submitted a Pre-Answer Response (ECF No. 9) on December 23, 2015. Applicant did not file a Reply, although he was given the opportunity to do so. For the reasons stated below, the Court will order the Respondents to file an Answer and the State Court Record.
I. Background and State Court Proceedings
Applicant, Raymond Armelino, has a masters of science degree in physical therapy, and has been a licensed physical therapist since 1995. (ECF No. 1 at 2). Following a jury trial, Mr. Armelino was acquitted of some charges but he was convicted of three counts of sexual assault and two counts of sexual contact. (ECF No. 9-4 at 2). At trial, applicant’s defense was that the physical therapy he was performing required some contact with the breasts, and that his female client, a 15 year old girl at the time, had misinterpreted the nature of the contact. (ECF No. 1 at 4). On August 14, 2007, Mr. Armelino was sentenced to concurrent sentences totaling eight years to life. (ECF No. 1 at 2).
In the Pre-Answer Response, Respondents conceded the application appeared timely under the AEDPA one-year limitation period set forth in 28 U.S.C. § 2244(d). (ECF No. 9 at 4). That statute provides as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
Applicant’s conviction was affirmed on direct appeal on October 8, 2009. (ECF No. 9-4). The Colorado Supreme Court denied Applicant’s petition for certiorari review on April 12, 2010. (ECF No. 9-6). Therefore, applicant’s conviction became final, and the limitation period began to run 90 days later, July 12, 2010, when the time expired to seek ...