United States District Court, D. Colorado
ORDER OF DISMISSAL
Lewis T. Babcock, Senior Judge United States District Court
Applicant, Paul Wayne Spence, is a prisoner in the custody of the Colorado Department of Corrections (CDOC) at the Correctional Facility in Limon, Colorado. He has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §2254. (ECF No. 8). Mr. Spence challenges the validity of his conviction and sentence imposed in the District Court of Denver County, Colorado. He has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On December 7, 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 filed a Pre-Answer Response on December 16, 2015. (ECF No. 15). Applicant filed his Reply (ECF No. 18) on February 4, 2016, after obtaining an extension of time.
The Court must construe liberally the Application filed by Mr. Spence 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 as time-barred.
I. Background and State Court Proceedings
Mr. Spence was convicted pursuant to his guilty plea of sexual assault on a child as part of a pattern of abuse, in Denver County District Court Case No. 99CR5072. (ECF No. 1-1 at 4). On July 10, 2000, he was sentenced to an indeterminate prison term of 20 years to life in the CDOC, plus 20 years to life parole. (Id.). Applicant did not file a direct appeal.
On October 19, 2000, Mr. Spence filed a Colo. Crim. P. Rule 35(b) motion for sentence reconsideration, which he supplemented on November 17, 2000. (Id.). The state district court denied the motion on the merits on December 12, 2000. (Id.). Applicant did not appeal.
On April 19, 2001, Mr. Spence filed a motion to reconsider the state district court’s denial of his Rule 35(b) motion, which the court denied as untimely on April 23, 2001. (Id.). Applicant did not appeal.
On December 16, 2002, Mr. Spence filed a Colo. Crim. P. Rule 35(c) motion, which was denied by the state district court on the merits on February 12, 2003. (Id.; see also ECF No. 15-2 at 2-3). Applicant did not appeal.
On June 23, 2005, Mr. Spence filed a letter in state district court, which the court construed as a second Rule 35(c) motion. (ECF No. 1-3 at 2-4). The court denied the motion as time barred and successive on August 14, 2005. (Id.). Applicant did not appeal.
On September 6, 2007, Mr. Spence filed a Colo. Crim. P. Rule 35(a) motion, which the state district court “struck” as successive on October 29, 2007. (ECF No. 1-4). Applicant did not appeal.
On October 29, 2012, Mr. Spence filed another Colo. Crim. P. Rule 35(a) motion, arguing that the parole portion of his sentence was illegal, which was denied by the state district court on November 7, 2012. (ECF No. 15-1 at 3). On appeal, the Colorado Court of Appeals affirmed the district court’s order in People v. Gary Wayne Spence, No. 13CA0652 (Colo.App. Dec. 11, 2014) (unpublished), but remanded the case for correction of the mittimus to reflect the indeterminate term of parole that was imposed by the district court. (ECF No. 15-8). The Colorado Supreme Court denied Applicant’s petition for certiorari review on August 24, 2015. (ECF No. 15-10).
Mr. Spence initiated this action on November 5, 2015 by filing a Prisoner Complaint. Pursuant to an order directing him to cure deficiencies, Applicant filed his § 2254 Application on December 3, 2015. He asserts three claims in the § 2254 Application.
Respondents argue in the Pre-Answer Response that the Application is barred by the one-year limitation period in 28 U.S.C. § 2244(d). (ECF No. 15 at 5-9). Respondents further contend that Mr. Spence’s claims are procedurally defaulted and ...