United States District Court, D. Colorado
LINDSAY T. HARDING, Applicant,
RICHARD F. RAEMISCH, and CYNTHIA COFFMAN, The Attorney General of the State of Colorado, Respondents.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, SENIOR JUDGE UNITED STATES DISTRICT COURT
Applicant, Lindsay T. Harding, is a prisoner in the custody of the Colorado Department of Corrections (CDOC). On December 21, 2015, he filed, pro se, an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 (ECF No. 1).
In the Application, Mr. Harding states that he is challenging the validity of his conviction and sentence imposed on September 9, 2008, in Case 07M3131 in the County Court of Douglas County, Colorado, for attempted unlawful sexual contact, in violation of COLO. REV. STAT. § 18-3-404(1.7). (ECF No. 1 at 1-2). Applicant states that he was sentenced to 300 days of confinement plus time served. (Id. at 2). The Application also reflects that Mr. Harding is currently serving a sentence imposed in Douglas County Case No. 09CR1352.
On December 23, 2015, Magistrate Judge Gallagher reviewed the § 2254 Application and determined that it raised an issue about this Court’s federal habeas jurisdiction. (ECF No. 4). To petition a federal court for habeas relief from a state court conviction, an applicant must be “in custody” under the challenged conviction or sentence at the time his habeas petition is filed. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989); Spencer v. Kemna, 523 U.S. 1, 7 (1998). The “in custody” requirement is jurisdictional. See McCormick v. Kline, 572 F.3d 841, 847-48 (10th Cir. 2009). Accordingly, Magistrate Judge Gallagher directed Mr. Harding to show cause, in writing, within 30 days, why the § 2254 Application should not be dismissed for lack of subject matter jurisdiction because the sentence on his 2008 misdemeanor conviction had expired. (ECF No. 4).
Mr. Harding filed a response to the Order to Show Cause on January 9, 2016, in which he states that his sentence in the 2009 case was to run consecutively to the sentence imposed in the 2008 case. (ECF No. 5 at 2-3). Because it was unclear whether Applicant had satisfied the “in custody” requirement, Magistrate Judge Gallagher entered an Order on January 25, 2016, directing Respondents to file a Pre-Answer Response, within 30 days, addressing any jurisdictional issues, as well as the timeliness of the Application and exhaustion of state court remedies. (ECF No. 8). Respondents filed a Pre-Answer Response on February 12, 2016. (ECF No. 11).
In the Pre-Answer Response, Respondents assert that the Court lacks jurisdiction over the Application because Applicant was not “in custody” on the 2008 sentence at the time the Application was filed. Respondents argue, in the alternative, that the Application is untimely and that Mr. Harding failed to exhaust his available state court remedies before seeking federal habeas relief, and, therefore has committed an anticipatory procedural default.
Applicant filed a Reply to the Pre-Answer Response on March 24, 2016.
The Court construes Applicant's filings 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 act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss this action.
I. Background and State Court Proceedings
Following a trial in Douglas County, County Court, Case No. 07M3131, Applicant was found guilty of the misdemeanor offense of attempt to commit unlawful sexual contact. (ECF No. 1 at 16). The County Court for Douglas County sentenced Applicant to a 24-month term of probation, but stayed the sentence during his appeal. (ECF No. 11-1 at 3, 13). The Douglas County District Court, serving as the appellate court, affirmed Applicant’s judgment of conviction on August 5, 2009. (ECF No. 1 at 15-19). Applicant did not appeal to the Colorado Supreme Court.
On November 10, 2009, the probation department filed a complaint to revoke probation in Case No. 07M3131. (ECF No. 11-1 at 11). On May 14, 2010, the state court revoked probation, sentenced Applicant to 339 days in jail, gave him credit for time served, and closed the case. (Id. at 3-5, 9-10).
On June 22, 2010, Applicant was sentenced in Arapahoe County District Court Case 09CR1352 to an indeterminate prison term of 72-years-to-life for multiple convictions of sexual assault on a child by one in a position of trust and aggravated incest. (ECF No. 11-2, at 1-8, 12-13).
On December 21, 2015, Mr. Harding filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). In the Application, he claims that his due process rights were violated when he was charged and convicted of a crime that he did not commit and ...