United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior Judge United States District Court.
Applicant Norman Michael Simpson is in the custody of the Colorado Department of Corrections (DOC) and currently is incarcerated at the Arkansas Valley Correctional Facility in Ordway, Colorado. Applicant, acting pro se, initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Applicant was granted leave to proceed pursuant to 28 U.S.C. § 1915.
On November 19, 2015, Magistrate Judge Gallagher directed Respondents to file a Preliminary Response to the Application that addresses the affirmative defenses of timeliness and exhaustion of state court remedies.
On December 10, 2015, Respondents filed a Preliminary Response, ECF No. 9. Applicant submitted a Response (Reply) and an Objection to Magistrate Judge Gallagher’s February 4, 2016 Minute Order, ECF No. 15, on February 19, 2016. In the Response and Objection, Applicant asks that this case be transferred to a district judge for consideration and argues that he does not need to exhaust his motion to correct an illegal sentence, because the district court granted his request to correct an illegal sentence. ECF No. 15 at 1. Applicant further argues that he is not required to exhaust his mandamus petition. Id. at 2. Applicant also asks for an extension of time to file a “Completed Reply” and that a district judge address all “past and present motions.” Id. at 1.
Based on the following, the Court will deny Applicant’s Objection to Magistrate Judge Gallagher’s February 4, 2016 Minute Order, dismiss this action for failure to exhaust state court remedies, and deny the February 19, 2016 Motion for Extension to File a Completed Reply as moot.
First, the Court will address Applicant’s Objection to Magistrate Judge Gallagher’s January 8 and February 4, 2016 Minute Orders. Rather than deny or confirm Respondents' affirmative defense arguments, Applicant filed two motions for extensions of time to reply to the Preliminary Response, one on January 7, 2016, and the other on February 3, 2016. Applicant contended he needed additional time to access the prison law library to conduct research, because he had been on lock down, and to obtain documentation from the sentencing court. Magistrate Judge Gallagher denied both motions because Respondents provided all the information Applicant needed to address whether he had an appeal pending in state court regarding the claims at issue; and Applicant did not assert he had been denied access or the ability to review the Preliminary Response.
Under § 636(b)(1)(A), a judge may reconsider any pretrial matter designated to a magistrate judge to hear and determine where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law. Based on the reasons Magistrate Judge Gallagher gave in the January 8 and February 4, 2016 minute orders for denying or limiting the extension of time Applicant had to reply to the Preliminary Response, the denial or limitation was proper. Applicant’s Objection, therefore, will be overruled.
Second, the Court will address Respondents’ exhaustion affirmative defense.
The Court must construe the Application liberally because Applicant is a pro se litigant. 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 a pro se litigant's advocate. See Hall, 935 F.2d at 1110.
Applicant asserts that on August 22, 2000, he was convicted of two class three felonies in El Paso County, Colorado, in Case No. 2000CR230 and was sentenced to two concurrent sixteen-year sentences with a five-year mandatory parole. Application, ECF No. 1 at 2. On January 17, 2013, while Applicant was serving his sixteen-year sentence he was convicted of a class four felony in El Paso County, Colorado, in Case No. 2011CR2711 and was sentenced to four years of incarceration with three years of a mandatory parole. Id. Applicant contends that the sentence in Case No. 2011CR2711 was imposed as running concurrent with the previous sixteen-year sentence. Id.
Applicant further asserts that he was released on June 2, 2013, but was reincarcerated on June 18, 2013, and had his parole revoked on August 7, 2013 for the remainder of the five-year term. Id. Applicant contends that Respondents have miscalculated and misapplied his presentence confinement credit to the class four felony sentence, which has resulted in an erroneous determination that the class four sentence is not the longer maximum governing sentence controlling his incarceration and parole status. Id. at 2-3. Applicant also asserts he filed a motion to correct illegal sentence pursuant to Crim. P. 35(a) on August 12, 2015, in the El Paso County, Colorado, District Court that was granted on or about September 3, 2015. Id. at 3. Applicant contends that the State court amended the sentence by Achanging the 'illegal NPT 8/2/2011' sentencing date to the correct 'NPT 1 -17-13' sentencing date and added the annotation to the judgment: 'credit for the time served 204 days';" but the DOC has failed to properly apply the sentencing provisions and recalculate the sentence in accordance with the applicable laws and amended NPT 1-17-13 sentencing date. Id. at 4.
Respondents argue that prior to Applicant filing the Rule 35(a) postconviction motion in El Paso County Court, in which he raised the same claims he asserts in this action, he filed an appeal, Case No. 2015CA1219, to the Colorado Court of Appeals (CCA). ECF No. 9 at 4. The appeal, which Respondents contend is pending, seeks review of the El Paso County District Court's prior denial of a previous Rule 35(a) motion Applicant filed in Case No. 2011CR2711. Id. Respondents further contend that the CCA issued a show cause order on December 2, 2015, directing Applicant to respond and state why the El Paso District Court's September 2015 order granting his second Rule 35(a) motion should not be stricken. See ECF No. 9 at 4 and 9-2. The CCA's order suggests the El Paso District Court may not have had jurisdiction to enter the September 2015 order because of the appeal. ECF No. 9 at 4-5.
Furthermore, Respondents assert that on July 16, 2015, Applicant filed a petition for writ of mandamus pursuant to Colo. R. Civ. P. 106(a)(2) in the Crowley County District Court in Case No. 2015CV20 raising the same issues. Id. at 5-6. According to Respondents as of December 10, 2015, the date they filed the Preliminary Response, the Rule 106(a)(2) petition remained pending. Id. at 6.
In his February 19, 2016 Reply, Applicant asserts that he filed a motion to dismiss the appeal in Case No. 2015CA1219, which the CCA did on January 27, 2016, without having received a response from the State. See ECF No. 15 at 4. The Court notes that Applicant’s motion to dismiss was filed on December 15, 2015, after Respondents submitted the Preliminary Response in this Court on December 10, 2015, and identified the pending appeal in support of their exhaustion affirmative defense. Nonetheless, the CCA dismissed the appeal regarding the denial of the previous Rule 35(a) postconviction motion and the State did not object to the dismissal of the appeal, leaving only the El Paso County Court finding that Applicant’s sentence should be amended, which the State did not appeal. The Court, therefore finds that the only concern remaining at issue, with respect to the exhaustion affirmative defense, is ...