United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, SENIOR JUDGE UNITED STATES DISTRICT COURT.
Applicant, Gregory Paul Frye, is a prisoner in the custody of the Colorado Department of Corrections. Mr. Frye has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). Mr. Frye is serving consecutive prison sentences totaling 28 years that were imposed in two El Paso County District Court criminal cases. The pertinent state court case numbers are 07CR4329 and 07CR4363. Mr. Frye previously filed an application for a writ of habeas corpus challenging the validity of his guilty pleas and convictions in these same two El Paso County District Court cases. See Frye v. Clements, No. 12-cv-00722-RBJ (D. Colo. Aug. 27, 2013), appeal dismissed, 546 F. App’x 777 (10th Cir. 2013), cert. denied, 135 S.Ct. 968 (2015). Mr. Frye’s claims in case number 12-cv-00722-RBJ were dismissed either as procedurally barred, not cognizable in a habeas corpus action, or on the merits.
In the instant application Mr. Frye challenges an order of restitution entered in his El Paso County District Court cases on March 27, 2013. The Colorado Court of Appeals described the factual background relevant to Mr. Frye’s convictions and the restitution order as follows:
Defendant was charged in multiple criminal cases with offenses committed against his ex-wife. On August 20, 2008, the third day of a jury trial in which defendant was representing himself, the parties reached a universal plea agreement, pursuant to which defendant pleaded guilty to second degree kidnapping and second degree assault with a deadly weapon and stipulated to consecutive twelve and sixteen-year terms in the custody of the Department of Corrections.
Subsequently, the prosecution submitted requests for restitution. While the written requests are not in the record on appeal, the registers of action reveal, and it is apparently undisputed, that the prosecution filed its requests on November 18, 2008, within ninety days of the sentencing hearing. After receiving no objection from defendant, the trial court summarily granted the restitution requests.
Thereafter, defendant’s advisory attorney received the restitution requests - the delay was caused by a clerical error - and, upon receipt, counsel promptly filed an objection thereto. The trial court permitted the objection to proceed and set a restitution hearing, before which the prosecution moved to amend the amount of its request. At that hearing, the trial court concluded that, because defendant had filed a notice of appeal of his conviction, it lacked jurisdiction to consider restitution.
Before initiating his first appeal, defendant filed, and the trial court denied, a Crim. P. 35(c) motion for postconviction relief. A division of this court dismissed as untimely that part of the appeal challenging the judgment of conviction but considered, and affirmed, that part of the appeal relating to the denial of the Crim. P. 35(c) motion. See People v. Frye, (Colo.App. No. 09CA0073, Apr. 14, 2011) (not published pursuant to C.A.R. 35(f)).
After the mandate issued, the court set a hearing to consider restitution and appointed the public defender to represent defendant. On the day of the restitution hearing, defendant asserted he had a conflict with the public defender and requested substitute counsel. The trial court denied the request and reset the restitution hearing for a later date upon defendant’s decision to discharge the public defender and represent himself. Following the subsequently held hearing, the trial court entered an order imposing restitution in the amount of $3279.86, and this appeal followed.
(ECF No. 1 at 38-40.)
Mr. Frye asserts the following three claims for relief in the application relevant to the restitution order:
1. I was denied my 5th Amendment Right to Due Process and my 14th Amendment Right to Equal Protection, by the failure of the DA to lawfully file, prior to the court’s imposition of the order, a copy of the Proposed Order of Restitution pursuant to Constitutional provisions, Colorado Rule of Civil Procedure Rule 5 and the plea agreement which I lawfully entered into with the State. (ECF No. 1 at 5.)
2. I was denied my 6th Amendment Right to a Fair Trial and my 14th Amendment Right to Equal Protection by the arbitrary and capricious imposition of restitution in my case where the sentencing court ignored the preponderance of evidence supporting my claims that the alleged victim was not entitled to restitution as imposed, affirming the Order without the similarly required standard of evidence from the prosecution in support of its claims, and by considering contested evidence and testimony outside of the record. Furthermore, these Rights were violated by the Court of Appeals’ arbitrary and capricious refusal to order, accept or consider properly offered, documented evidence on record as part of the record on appeal. (ECF No. 1 at 6.)
3. I was denied my 6th Amendment Right to Counsel and 14thAmendment Right to Equal Protection by the sentencing court’s denial of my motion for substitution of conflicted, incompetent counsel during sentencing. (ECF No. 1 at 8.)
On September 9, 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 September 25, 2015, Respondents filed their Pre-Answer Response (ECF No. 9) arguing that the Court lacks jurisdiction to consider Mr. Frye’s claims challenging the restitution order because he is not “in custody” with respect to the restitution order. On October 19, 2015, Mr. Frye filed his Reply to Pre-Answer Response (ECF No. 10) arguing that the Court has jurisdiction to consider his claims challenging the restitution order because each of his three claims, either explicitly or implicitly, includes an argument that the prosecution breached the original plea agreement in the El Paso County District ...