United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND FOR ANSWER
A. BRIMMER United States District Judge.
William Davenport is in the custody of the Colorado
Department of Corrections (“CDOC”) at the
Correctional Facility in Sterling, Colorado. He has filed an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 [Docket No. 1] challenging the validity of a
conviction and sentence imposed in the District Court for the
City and County of Denver, Colorado, Case No. 05CR1165. Mr.
Davenport has paid the $5.00 filing fee.
16, 2016 and July 5, 2016, Magistrate Judge Gordon P.
Gallagher directed Respondents to file a pre-answer response
addressing the affirmative defenses of timeliness under 28
U.S.C. § 2244(d) and exhaustion of state court remedies
under 28 U.S.C. § 2254(b)(1)(A). Docket Nos. 6 and 7.
Respondents submitted a Pre-Answer Response on July 27, 2016.
Docket No. 1). Applicant filed a Reply on September 9, 2016,
Docket No. 18, after obtaining an extension of time.
Court construes Mr. Davenport'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 the Application
BACKGROUND AND STATE COURT PROCEEDINGS
Mr. Davenport's first trial ended in a hung jury, he was
convicted after a second trial of one count of first-degree
murder (after deliberation), four counts of attempted
first-degree murder (after deliberation), and one count of
attempted first-degree murder (extreme indifference). Docket
No. 13-1 at 5-8; No. 13-9. Applicant was sentenced on March
21, 2007 to a term of life without parole, plus five
consecutive 48-year terms. Id.
convictions were affirmed on direct appeal in People v.
William Lee Davenport, III (Davenport I), No.
07CA878 (Colo.App. June 24, 2010) (unpublished). Docket No.
13-9. The Colorado Supreme Court denied Applicant's
petition for certiorari review on January 11, 2011. Docket
Davenport's motion for post-conviction relief pursuant to
Colo. Crim. P. Rule 35(c), filed on June 1, 2011, and the
supplement filed by court-appointed counsel on August 3, 2012
were denied by the state district court on February 13, 2013.
Docket No. 13-1 at 16-19; No. 13-6. The Colorado Court of
Appeals affirmed in People v. William Lee Davenport,
III (Davenport II), No. 13CA607 (Colo.App. July
6, 2015) (unpublished). Docket No. 13-4. Applicant's
petition for certiorari review was denied by the Colorado
Supreme Court on January 19, 2016. Docket No. 13-2.
26, 2016, Mr. Davenport filed his federal application under
28 U.S.C. § 2254. The Court construes the pro
se Application liberally to assert the following claims:
1. Applicant was denied his constitutional right to a fair
trial because the trial court admitted DNA evidence that was
inadmissible under Colo. R. Evid. (“CRE”) 403 and
702. Docket No. 1 at 5-6.
2. Applicant was denied his constitutional right to a fair
trial because the court admitted irrelevant evidence of
statements made by two African-American males in the presence
of a bartender as res gestae. Id. at 7-9.
3. Applicant was denied a fair trial, in violation of due
process, because the trial court refused to give the jury:
(a) his tendered “identity instruction, ” which
would have instructed the jury against convicting unless it
found that Applicant was the person who committed the crimes
beyond a reasonable doubt, id., at 9-10; and, (b)
his tendered “missing witness” instruction, which
would have instructed the jury that it should assume that the
testimony of Applicant's brother would have been
favorable to the defense. Id. at 10-11.
4. Applicant was denied his constitutional right to due
process when a prosecution witness identified Applicant for
the first time at trial in circumstances rendering that
identification unduly suggestive. Id. at 12.
5. Applicant was denied his constitutional right to due
process when the state post-conviction court rejected his
ineffective-assistance-of-counsel (IAC) claim (based on the
failure to call an expert witness to undermine the
reliability of eyewitness identification) without conducing
an evidentiary hearing. Id. at 13-14.
Pre-Answer Response, Respondents concede that the Application
is timely under the one-year limitation period set forth in
28 U.S.C. § 2244(d). Docket No. 13 at 6. Respondents
further concede that Applicant exhausted state court remedies
for claims 3(a) and 4. Id. at 22, 28. Respondents
argue, however, that Applicant has committed an anticipatory
procedural default of claims 1 and 2; that claim 3(b) is
unexhausted, rendering the entire Application a mixed
petition; and that, although claim 5 does not state a
cognizable constitutional claim, Applicant has nonetheless
exhausted an IAC claim based on defense counsel's
decision not to call an expert to undermine the reliability
of eye witness identification. Id. at 14-22, 23-29.
EXHAUSTION OF STATE COURT REMEDIES AND ...