United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, SENIOR JUDGE UNITED STATES DISTRICT COURT.
Applicant, Jeremy Garcia, is a prisoner in the custody of the Colorado Department of Corrections. Mr. Garcia has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging the validity of his conviction and sentence in Weld County District Court case number 02CR1342. He has paid the $5.00 filing fee.
On June 15, 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. On June 24, 2015, Respondents filed their Pre-Answer Response (ECF No. 12) arguing that the Application is barred by the one-year limitation period, and that claim two is unexhausted, and therefore the entire application must be dismissed as a mixed petition. On September 18, 2015, Mr. Garcia filed his Reply (ECF No. 16) contending that Respondents are “factually and legally incorrect” as to the timeliness defense.
On September 29, 2015, Magistrate Judge Gallagher ordered Respondents to file a Supplemental Pre-Answer addressing the issue of whether equitable tolling should be applied. Respondents filed their Supplemental Pre-Answer Response (ECF No. 19) on October 20, 2015, and Mr. Garcia filed his Supplemental Reply (ECF No. 22) on December 21, 2015.
The Court must construe the Application and other papers filed by Mr. Garcia 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 time-barred.
The Colorado Court of Appeals described the relevant factual and procedural background of Mr. Garcia’s criminal case as follows:
During a party at an apartment, defendant’s friend, Walter Herrera, argued with another partygoer on the balcony. When the argument escalated, defendant and Herrera each pulled out a gun and defendant’s other friend, Jasper Garcia, pulled out a knife. Defendant and his two friends were asked to leave. After he reached the parking lot, defendant fired five shots from the gun. A bullet from one of the shots killed the victim, who had been standing on the balcony.
A jury convicted defendant of second degree murder, and the court sentenced him to forty-eight years in the custody of the Department of Corrections. On appeal, a division of this court upheld defendant’s conviction and sentence. See People v. Garcia, (Colo.App. No. 05CA2246, Jan. 24, 2008) (not published pursuant to C.A.R. 35(f) (Garcia I).
In September 2008, defendant filed a pro se Crim. P. 35(c) motion, arguing that (1) the trial court denied him the right to present a defense when it did not allow counsel to impeach the prosecution’s witnesses with evidence of gang activity; (2) he was denied the right to effective assistance of counsel based on (a) the number of counsel appointed to represent him, (b) trial counsel’s failure to use the defense strategy they had agreed on, (c) trial counsel’s failure to move for a mistrial or request a curative instruction after the prosecution showed morgue and crime scene photographs to the jury in the presence of the victim’s two children, (d) trial counsel’s failure to request a jury instruction on crime of violence, and (e) appellate counsel’s failure to “fully and thoroughly . . . litigate the claims [in Garcia I] and the claims herein stated”; (3) he was denied the right to a jury of his peers because the jury was not representative of a “cross-section of the community”; and (4) the trial court erred when it (a) failed to instruct the jury on “aggravating circumstances/sentences, ” (b) did not enforce the instruction that required the jury to refrain from talking about the case outside the deliberation room, (c) allowed the prosecutor to “badger and discredit” his expert witness, and (d) failed to “marshall the testimony of the state witnesses who went from telling detectives originally that the shooting was involuntary, to intentional during trial.” After the court appointed counsel, defendant supplemented his motion and argued that trial counsel was ineffective when he (1) conceded every element of the crime of second degree murder except the culpable mental state and then presented the case to the jury as if the culpable mental state of the crime was intentionally or with intent rather than knowingly; (2) failed to assert the affirmative defense of self-defense because he misunderstood the requirements for raising that defense; and (3) made cumulative errors throughout the trial, including his failure to (a) object to the admission of a photograph of the victim pregnant with her second child, (b) properly impeach a witness, (c) endorse the investigator as a witness at trial, and (d) competently lay a foundation to qualify the defense expert as an expert witness.
The district court denied defendant’s motion without a hearing, finding that (1) although trial counsel misstated it at times during the opening statement and closing argument, counsel understood the applicable culpable mental state and “[t]he majority of [trial counsel’s] closing argument . . . accurately addressed” whether defendant “knowingly” caused the death of a person; (2) there was no support in the record for the assertion that trial counsel failed to raise the affirmative defense of self-defense based on a misunderstanding of that defense; (3) trial counsel’s failure to raise self-defense was trial strategy; (4) based on the evidence at trial, it was “extremely unlikely that the presentation of the affirmative defense of self-defense would have led to a different result”; (5) trial counsel’s strategy “resulted in effective representation given the evidence” at trial; and (6) based on its review of the record as a whole, it could not find that trial counsel was not adequately prepared.
(ECF No. 12-4, at 3-6, People v. Garcia, No. 11CA2409, slip op. at 1-4 (Colo.App. May 16, 2013)). The Colorado Court of Appeals affirmed the trial court’s denial of the postconviction motion. (Id.). On February 18, 2014, the Colorado Supreme Court denied Mr. Garcia’s petition for writ of certiorari. (See ECF No. 12-2.)
Mr. Garcia initiated the instant action on April 9, 2015 by filing the § 2254 Application asserting the following claims for relief:
(1) “the defendant was sentenced in violation of the U.S. Const. by the lower court making findings of fact and conclusions of law that were required to be made by the jury when a sentence including aggravating and ...