United States District Court, D. Colorado
MICHAEL J. MALLISH, Applicant,
RICK RAEMISCH, Executive Director, Colorado Dep’t of Corrections, and CYNTHIA COFFMAN, the Attorney General of the State of Colorado, Respondents.
ORDER TO DISMISS IN PART AND FOR ANSWER
RAYMOND P MOORE UNITED STATES DISTRICT JUDGE
Applicant, Michael J. Mallish, is in the custody of the Colorado Department of Corrections (CDOC) at the Fremont Correctional Facility in Canón City, Colorado. He has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging the validity of convictions and sentences imposed in the District Court of Jefferson County, Colorado. Mr. Mallish has paid the $5.00 filing fee. On November 12, 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). Respondents submitted a Pre-Answer Response (ECF No. 9) on December 8, 2015. Applicant filed a Reply (ECF No. 10) on January 11, 2016.
The Court construes Mr. Mallish’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 pro se litigants. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the Application, in part.
I. Background and State Court Proceedings
On April 20, 2010, Applicant was convicted in Jefferson County District Court Case No. 09CR726 of attempted escape (a felony), two counts of criminal mischief (a misdemeanor), one count of resisting arrest (a misdemeanor), and one count of harassment (a misdemeanor). (ECF No. 1 at 3; No. 9-1, at 8-10; No. 9-4 at 3). He was adjudicated a habitual criminal with respect to the felony charge and sentenced to a 12-year prison term with the CDOC. (ECF No. 1 at 3; No. 9-1, at 10-11).
Applicant’s convictions were affirmed on direct appeal in People v. Mallish, No. 11CA0874 (Colo.App. Feb. 24, 2014) (unpublished). (ECF No. 9-4). However, the Colorado Court of Appeals remanded the case for correction of the mittimus to reflect the conviction and sentence for resisting arrest. (Id. at 40). The Colorado Supreme Court denied Applicant’s petition for certiorari review on December 8, 2014. (ECF No. 9-2).
On November 9, 2015, Mr. Mallish filed his federal application under 28 U.S.C. § 2254 asserting four claims for relief:
1. Applicant was deprived of his Sixth Amendment right to counsel when his court-appointed public defender requested that Applicant undergo a competency evaluation in custody, which conflicted with Applicant’s wish to remain free on bond (ECF No. 1 at 6-7);
2. The trial court abused its discretion, misapplied Colorado statutes, and violated due process by placing Applicant in custody until the competency evaluation was completed (id. at 7-8);
3. Applicant was denied his Sixth Amendment right to conflict free counsel and to counsel of his choice, when court-appointed defense counsel continued to represent him after he retained private counsel on December 16, 2009 (id. at 9); and,
4. The prosecutor “selectively, maliciously and vindictively” prosecuted Applicant; “acted in collusion” with the public defender to obtain a plea deal from Applicant; and, “intentionally engaged in conduct that . . . would cause [Applicant’s] rights to be infringed upon and violated” (id. at 9-10).
In the Pre-Answer Response, Respondents concede that the Application is timely. (ECF No. 9 at 3-5). Respondents further concede that Applicant exhausted state court remedies for claim one. (Id. at 17-18). Respondents argue, however, that claims two, three and four are procedurally barred. (Id. at 18-26).
II. Applicability of Procedural Bar