United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior Judge United States District Court
Applicant Stevie Brown is a prisoner in the custody of the Colorado Department of Corrections (“CDOC”) currently incarcerated at the Fremont Correctional Facility. On November 12, 2015, Mr. Brown filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) (the “Application”) challenging the validity of his conviction in Fremont County District Court case number 11CR6. He has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On November 20, 2015, Magistrate Judge Gordon P. Gallagher ordered Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses in this action. (See ECF No. 5). Respondents filed their Pre-Answer Response (ECF No. 9) on December 10, 2015. On December 30, 2015, Applicant filed a Reply (ECF No. 10).
The Court must construe the filings by Mr. Brown 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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the action as untimely.
Mr. Brown pled guilty to enticement of a child in Fremont County District Court case number 11CR6, and the parties stipulated to a sentence of sex offender intensive supervision probation for an indeterminate term of ten years to life. (ECF No. 9-1, at 4, 15). On May 3, 2012, the trial court imposed the agreed-upon sentence. (Id., at 14). Mr. Brown did not appeal.
On February 21, 2013, Mr. Brown filed a motion for postconviction relief pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (ECF No. 9-1, at 14). The trial court denied the motion on April 17, 2013. (Id.). On April 30, 2013, Mr. Brown filed a motion, which the trial court denied as a successive Rule 35(c) motion. (Id., at 13-14). Mr. Brown did not appeal either decision.
On June 24, 2014, Mr. Brown’s probation was revoked. (ECF No. 9-1, at 11). He was resentenced on December 4, 2014, to an indeterminate prison term of two years to life in the CDOC. (Id., at 9). Mr. Brown did not appeal.
On January 29, 2015, Mr. Brown filed a motion for postconviction relief pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (ECF No. 9-1, at 9). The trial court denied the motion on July 21, 2015. (Id.).
On November 12, 2015, Mr. Brown filed the instant application asserting the following five claims:
(1) “Applicant was not given the opportunity to present his case in a fair proceeding in violation of right to due process” where the prosecution fabricated or altered text messages between Applicant and the alleged victim;
(2) ineffective assistance of counsel where: (a) his first attorney failed to allow him to review discovery and failed to file a motion to dismiss based on lack of evidence; (b) his second attorney tried to build a case against him; and (c) his third attorney failed to investigate;
(3) “the prosecution suppressed the interview of applicants [sic] sister, and the true and correct record of text messages provided by T-Mobile. The suppressed evidence was favorable to the accused and material to the defense”;
(4) “the prosecution submitted altered text messages (transcribed) as discovery, as well as a fictitious photograph of a female other than the alleged victim to support their evidence”; and
(5) “district judge, Julie Marshall, refused to acknowledge applicants [sic] motion to dismiss, as well as request for evidentiary hearing stating she lacked authority, which is a false assertion.”
(ECF No. 1, at 5-21).
All five claims challenge Mr. Brown’s original judgment of conviction.
II. ONE-YEAR LIMITATION PERIOD
Respondents first argue that the instant action is barred by the one-year limitation period in 28 U.S.C. § 2244(d). The 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 ...