United States District Court, D. Colorado
DAVIS T. STEPHENSON, Applicant,
PAUL GRAY, Colorado Division of Adult Parole, and CYNTHIA COFFMAN, Attorney General of the State of Colorado, Respondents.
Kristen L. Mix United States Magistrate Judge.
This matter is before the Court on the Motion to Reconsider Order to Dismiss in Part; To Amend Claim 5; and to Appoint an Attorney [#26] (the “Motion”) filed pro se by Applicant, Davis T. Stephenson, on October 9, 2015. Respondents filed a “Response to Motion to Reconsider and Amend” [#39] on February 2, 2016.
The Court must construe the Motion and other papers filed by Mr. Stephenson 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.
I. Procedural Background
On June 1, 2015, Mr. Stephenson initiated this action by filing pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [#1] (the “Application”) challenging the validity of his conviction and sentence in Case No. 04CR95 in the District Court of La Plata County, Colorado. In the Application, Mr. Stephenson raised the following seven claims for relief:
1. Colorado’s criminal libel statute violates the First Amendment and “Supreme Court rulings, ” and Applicant’s prosecution under that statute violated the Equal Protection Clause of the Fourteenth Amendment (“Claim One”);
2. Applicant’s sentence was grossly disproportionate to his crimes, in violation of the Eighth Amendment (“Claim Two”);
3. Applicant’s “unprepared” trial counsel violated his Sixth Amendment right to competent attorney representation (“Claim Three”);
4. There was insufficient evidence to support Applicant’s forgery convictions because there was no intent to defraud or to gain a benefit (“Claim Four”);
5. An “[o]vertly retaliatory search warrant was in violation of the First and Fourth Amendments” (“Claim Five”);
6. The state lacked subject matter jurisdiction over two counts of which Applicant was convicted (“Claim Six”); and
7. Applicant’s simultaneous convictions for forgery and possession of a forged instrument in relation to the same text violated the Fourteenth Amendment’s equal protection guarantee (“Claim Seven”). [#1, at 2-5].
On September 25, 2015, the Court entered an Order to Dismiss in Part and for Answer [#21] (the “September 25 Order”). In the September 25 Order, the Court determined that Claim Five and the portion of Claim One challenging the constitutionality of the state criminal libel statute on First Amendment grounds were exhausted. [See id., at 6-12, 17]. The Court determined that Claims Three and Six were unexhausted but declined to resolve whether Claims Three and Six were subject to an anticipatory procedural default because Mr. Stephenson’s factual allegations concerning the withdrawal of his state postconviction motion and waiver of his right to file any such motion in the future in exchange for a reduction in his sentence may excuse the default through a showing of cause and prejudice. [Id., at 15-17]. The Court also dismissed Claims Two, Four, Seven, and the portion of Claim One challenging Mr. Stephenson’s prosecution under the criminal libel statute as violating the equal protection guarantee of the Fourteenth Amendment as unexhausted and procedurally defaulted. [Id., at 12-15, 17].
In the September 25 Order, the Court specifically determined that Claim Four was not fairly presented to the state courts because Mr. Stephenson did not raise the claim in his opening brief on direct appeal and inclusion of the claim for the first time in a petition for writ of certiorari did not demonstrate that the claim was fairly presented to the highest state court. [Id., at 13]. Because Colorado appellate courts do not review issues that were not raised in the lower courts, the Court found that Mr. Stephenson failed to demonstrate that Claim Four was exhausted. [Id.]. In addition, the Court determined that Claim Four was procedurally defaulted because it would be barred under Colo. R. Crim. P. 35(c)(3)(VII). [Id., at ...