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Shea v. Raemicsh

United States District Court, D. Colorado

February 29, 2016

DANNY SHEA, Plaintiff,
v.
RICK RAEMICSH, Executive Director, CDOC THE ATTORNEY GENERAL OF STATE OF COLORADO, Defendants.

ORDER TO DISMISS IN PART AND FOR ANSWER

WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE

Applicant, Danny Shea, is currently incarcerated in the Southern Ohio Correctional Facility. On October 23, 2015, Mr. Shea, acting pro se, filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) (the “Application”) challenging the validity of his Colorado conviction and sentence in Denver County District Court case number 04CR4896. He has paid the $5.00 filing fee.

On October 26, 2015, U.S. 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 intended to raise either or both of those defenses in this action. (ECF No. 3). Respondents filed their Pre-Answer Response on November 10, 2015 (ECF No. 8) arguing that two of the claims were procedurally barred and one of the claims was repetitive. Respondents conceded that the Application was timely and that the remaining claims were exhausted. After receiving two extensions of time, Mr. Shea filed a Reply to the Pre-Answer Response on December 24, 2015 (ECF No. 13).

The Court must construe the Application and other papers filed by Mr. Shea 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 Application, in part.

I. Background

A. State Court Proceedings

The Colorado Court of Appeals summarized the state court proceedings as follows:

Shea and numerous codefendants were indicted in connection with alleged racketeering activities of the “211 Crew, ” a group of prison inmates. Ultimately, a jury convicted Shea of violating the Colorado Organized Crime Control Act (COCCA), conspiracy to commit second degree assault, tampering with a witness or victim, and two counts of conspiracy to distribute a schedule II controlled substance. The trial court then adjudicated Shea as a habitual criminal and sentenced him to an aggregate term of 112 years in the Department of Corrections (DOC).
Shea appealed his conviction and sentence, and a division of this court affirmed the conviction and affirmed in part and reversed in part the sentence. People v. Shea, (Colo.App. No. 08CA1645, Aug. 4, 2011) (Shea I). On remand, the trial court modified the sentence in part.
Thereafter, Shea filed a pro se Crim. P. 35(c) motion and two supplements to that motion, alleging numerous claims of ineffective assistance of trial counsel. He also moved for the appointment of counsel to assist him in his efforts to obtain postconviction relief.
In a thorough and detailed order, the postconviction court denied Shea’s motions. . . .

(ECF No. 8-7 at 2-3, People v. Shea, (Colo.App. No. 13CA1896, Apr. 2, 2015) (not published) (Shea II)). The Colorado Court of Appeals affirmed the postconviction court’s order. Id. The Colorado Supreme Court denied certiorari on October 13, 2015. (ECF No. 8-9).

B. Federal Habeas Applications

On October 23, 2015, Applicant filed the current habeas application pursuant to 28 U.S.C. § 2254 in this Court. (ECF No. 1) The Application asserts the following claims for relief:

(1) Mr. Shea received ineffective assistance of counsel in violation of his Sixth ...

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