United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior Judge United States District Court
Applicant, Donald Lane Betts, is a prisoner in the custody of the Colorado Department of Corrections. Mr. Betts initiated this action by filing pro se a Petition for Habeas Corpus (ECF No. 1). On October 13, 2015, he filed on the proper form an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 5). Mr. Betts is challenging the validity of his conviction and sentence in Elbert County District Court case number 08CR57.
On October 14, 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 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 November 10, 2015, Magistrate Judge Gallagher entered a second order directing Respondents to file a Pre-Answer Response. On November 30, 2015, Respondents filed their Pre-Answer Response (ECF No. 15) arguing that the application is barred by the one-year limitation period and that the constitutional claim Mr. Betts is asserting is unexhausted because it was not fairly presented to the Colorado Supreme Court in a petition for writ of certiorari. Although Mr. Betts contends, as will be noted below, that the claim he presented on appeal to the Colorado Court of Appeals is different than the claim he presented to the trial court, Respondents assert that the claim Mr. Betts raises in the amended application was fairly presented to the Colorado Court of Appeals. On December 7, 2015, Mr. Betts filed his Reply to Pre-Answer Response (ECF No. 17).
On December 11, 2015, Magistrate Judge Gallagher entered an order giving Respondents an opportunity to file a supplement to the Pre-Answer Response that addresses the timeliness arguments raised by Mr. Betts for the first time in his reply to the Pre-Answer Response. On January 22, 2016, Respondents filed a Supplemental Pre-Answer Response (ECF No. 21). On February 2, 2016, Mr. Betts filed a Reply to Supplemental Pre-Answer Response (ECF No. 22).
The Court must construe the amended application and other papers filed by Mr. Betts 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 action as untimely.
The Colorado Court of Appeals described the background relevant to Mr. Betts’ convictions and sentence as follows:
The crux of this case is defendant’s sexual relationship with a young girl who had run away from home. When the relationship began, defendant was thirty-three years old and C.L. was sixteen years old. Shortly after the relationship began, defendant drove C.L. to Alabama, where they were married. They returned to Colorado.
C.L.’s mother alerted the police to the nature of her daughter’s relationship with defendant and to the disparity in their ages.
The police arrested defendant and searched his home. As a result, they filed a variety of charges based on (1) what they found there, including controlled substances; and (2) defendant’s sexual relationship with C.L.
Defendant’s plea counsel negotiated a plea disposition with the prosecution. Defendant pled guilty to second degree kidnapping, contributing to the delinquency of a minor, sexual assault with a ten-year age difference, sexual exploitation of a child, and distribution of a schedule II controlled substance. In exchange, the prosecutor dismissed twenty-one other counts. The parties agreed, subject to the trial court’s approval, that defendant would be sentenced to prison for twenty-five years.
The court accepted the plea disposition and sentence defendant accordingly.
People v. Betts, No. 12CA0311 (Colo.App. Aug. 8, 2013) (unpublished) (ECF No. 15-4 at 2-3). Mr. Betts was sentenced on June 21, 2010. He did not file a direct appeal.
On November 28, 2011, Mr. Betts filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 15-1 at 26.) On January 9, 2012, the trial court denied the Rule 35(c) motion. (See id.) Mr. Betts appealed and, on appeal, the Colorado Court of Appeals affirmed in part, reversed in part, and remanded the case with directions “to hold an evidentiary hearing to determine whether plea counsel was ineffective because she did not file a motion to suppress the evidence obtained from the search of defendant’s home.” (ECF No. 15-4 at 17.) Following an evidentiary hearing in April 2014, the trial court again denied postconviction relief. (See ECF No. 15-1 at 19-20.) That order was affirmed on appeal. See People v. Betts, No. 14CA0751 (Colo.App. Aug. 13, 2015) (unpublished) (ECF No. 15-11).
Mr. Betts initiated this action on September 30, 2015. He asserts one claim for relief in the amended application contending plea counsel was ineffective “by advising him to plead guilty to charges sustained from a fatally defective general search warrant and allegedly using knowledge of the warrant in plea negotiations without Betts’ consent, instead of litigating the meritorious fourth amendment claim and excluding the evidence supporting the charges.” (ECF No. 5 at 5.) According to Mr. Betts, counsel’s performance was deficient because a substantial amount of evidence and witnesses were derived from the illegal search and he was ...