United States District Court, D. Colorado
JOHN R. STASZAK, Applicant,
RANDY LIND, Warden, CTCF, and CYNTHIA H. COFFMAN, The Attorney General of the State of Colorado, Respondents.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, SENIOR JUDGE UNITED STATES DISTRICT COURT.
Applicant, John R. Staszak, is a prisoner in the custody of the Colorado Department of Corrections (CDOC) at the Colorado Territorial Correctional Facility in Canon City, Colorado. He has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). Mr. Staszak challenges the validity of his convictions and sentences imposed in the District Court of Fremont County, Colorado. He has paid the $5.00 filing fee.
On December 23, 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), if Respondents intended to raise one or both of those defenses. Respondents filed a Pre-Answer Response (ECF No. 14) on January 12, 2016. (ECF No. 14). Applicant filed his Reply (ECF No. 15) on January 25, 2016.
The Court must construe Mr. Staszak’s filings 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 act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the § 2254 Application will be dismissed.
I. Background and State Court Proceedings
In August 2007, Applicant pleaded guilty to two counts of sexual exploitation of a child, and was sentenced to 10 years of probation. (ECF No. 14-1 at 14). In May 2010, the state district court revoked probation after a hearing and sentenced Applicant to 12 years in prison for each count, to run concurrently. (Id. at 10; No. 14-4 at 1). Applicant did not file a direct appeal.
On January 16, 2014, Applicant filed a motion for post-conviction relief pursuant to Colo. Crim. P. Rule 35, which was denied summarily by the state district court on March 17, 2014. (ECF No. 14-1 at 9). The Colorado Court of Appeals affirmed in People v. Staszak, No. 14CA0591 (Colo.App. March 19, 2015). (ECF No. 14-4). Applicant’s petition for certiorari review was denied by the Colorado Supreme Court on August 24, 2015. (ECF No. 14-2).
Applicant filed his § 2254 Application in this Court on October 8, 2015 asserting three claims for relief: (1) he was denied the effective assistance of counsel when court-appointed counsel allowed him to be sentenced outside the presumptive range prescribed by Colorado statutes, based on case law from another state; (2) Applicant’s sentences outside the statutorily-prescribed presumptive range are illegal under Colorado law and violate the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000); and, (3) the sentencing court abused its discretion in sentencing him outside the statutory presumptive range, based, in part, on his prior misdemeanor conviction, in violation of Apprendi and Blakely v. Washington, 542 U.S. 296 (2004). (See ECF No. 1 at 5-16).
Respondents argue in the Pre-Answer Response that the Application should be denied because: some of Mr. Staszak’s allegations raise issues of state law that are not cognizable on federal habeas review; the Application is barred by the one-year limitation period in 28 U.S.C. § 2244(d); and, in the alternative, the federal claims are procedurally defaulted. (ECF No. 14 at 4-6, 12-14).
II. Issues of State Law
Federal habeas review is limited to claims that a state prisoner’s custody violates the United States Constitution or other federal law. 28 U.S.C. § 2254(a). The statute does not provide a remedy for errors of state law. See Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011) (per curiam); see also Estelle v. Mcguire, 502 U.S. 62, 67 (1991) (habeas corpus does not lie to correct errors of state law). Accordingly, Applicant’s allegations that the state district court abused its discretion and violated or misapplied Colorado sentencing statutes are not cognizable in this § 2254 proceeding.
III. AEDPA Time Bar
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) provides:
(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 ...