United States District Court, D. Colorado
ARCHIE R. STEINHOUR, Applicant,
STATE OF COLORADO, CYNTHIA HOFFMAN, The Attorney General of the State of Colorado, and MICHAEL MILLER, Respondents.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior Judge United States District Court
Applicant Archie R. Steinhour is a prisoner in the custody of the Colorado Department of Corrections (“CDOC”) currently incarcerated at the Crowley County Correctional Facility. Mr. Steinhour filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 (ECF No. 1) challenging his conviction and sentence in Denver County District Court Case No. 99CR0265. He has paid the $5.00 filing fee.
In orders (ECF Nos. 5 and 6) entered on October 6, 2015 and November 13, 2015, Magistrate Judge Gordon P. Gallagher directed 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 under 28 U.S.C.
§ 2254(b)(1)(A) if Respondents intend to raise either or both of those affirmative defenses in this action. Respondents filed a Pre-Answer Response (ECF No. 9) on December 8, 2015. On December 28, 2015, Applicant filed a Reply (ECF No. 11).
The Court must construe liberally Applicant’s pleadings 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 does not “assume the role of advocate for the pro se litigant.” See Hall, 935 F.2d at 1110. For the reasons explained below, the Court will dismiss this action as time-barred by the one-year limitation period, 28 U.S.C. § 2244(d)(1), in the Anti-Terrorism and Effective Death Penalty Act (AEDPA).
On December 6, 1999, Applicant pleaded guilty to two counts of sexual exploitation of a child in Case No. 99CR0265 in the Denver County District Court, and was sentenced to two consecutive 15-year terms of incarceration in the CDOC. (ECF No. 9-1, at 12). The sentence in Case No. 99CR0265 also was ordered to run concurrent with the sentence in Case No. 98cr3582 in the Jefferson County District Court. (Id.). Applicant did not appeal.
On June 28, 2001, Applicant filed a postconviction motion pursuant to Colo. Crim. P. Rule 35 alleging that his sentence was illegally aggravated in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). (See ECF No. 9-1, at 11; ECF No. 9-18, at 2). Applicant also alleged that the CDOC was improperly deducting restitution from his inmate account. (Id.). The state court denied both claims and Applicant appealed. (Id.). The Colorado Court of Appeals affirmed the denial of the Apprendi claim, but vacated the denial of the restitution claim because the trial court lacked jurisdiction over that claim. (See ECF No. 9-15, People v. Steinhour, No. 01CA2426 (Colo.App. May 1, 2003) (“Steinhour I”). The Colorado Supreme Court denied Applicant's petition for writ of certiorari on December 22, 2003. (ECF No. 9-13).
On January 5, 2005, Applicant filed a second motion for postconviction relief pursuant to Colo. Crim. P. Rule 35 alleging that his sentence violates both Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). (See ECF No. 9-1, at 9; ECF No. 9-12, at 2). The state court denied the motion on January 30, 2006, and Applicant appealed. (Id.). On September 13, 2007, the Colorado Court of Appeals affirmed the denial. (ECF No. 9-10, People v. Steinhour, 06CA0535 (Colo.App. Sept. 13, 2007) (“Steinhour II”). Applicant was granted an extension of time to file a petition for writ of certiorari, but the Colorado Supreme Court dismissed the certiorari proceeding on November 17, 2008, after Applicant moved to “withdraw” the certiorari proceeding. (See ECF No. 9-9, at 2-4; ECF No. 9-8, at 2).
On May 10, 2012, Applicant filed a third motion for postconviction relief pursuant to Colo. Crim. P. Rule 35. (ECF No. 9-1, at 8). The state court denied the motion on October 16, 2012. (Id.; ECF No. 9-7). Applicant requested reconsideration, and the state court granted relief on new claims that were added during the process, but denied reconsideration of the claims under Rule 35. (ECF No. 9-1, at 7; ECF No. 9-6). The Colorado Court of Appeals affirmed the decision on appeal. (ECF No. 9-4, People v. Steinhour, 13CA0651 (Colo.App. Oct. 23, 2014) (“Steinhour III”). Applicant’s petition for certiorari review was denied by the Colorado Supreme Court on June 22, 2015. (ECF No. 9-2, at 2).
Applicant filed his federal habeas corpus application on August 28, 2015. Applicant’s sole claim is as follows: “[t]he Colorado State Courts erred when they denied the Petitioner’s Issue #1 where he should be permitted to withdraw his guilty plea because he pleaded to an illegal sentence.” (ECF No. 1, at 4).
II. The AEDPA Time Bar
Respondents first assert in the Pre-Answer Response that this action is untimely under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). The Court agrees.
Section 2244(d) 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 ...