United States District Court, D. Colorado
FRANCIS M. HERNANDEZ, Applicant,
LOU ARCHULETA, Warden, F.C.F., and THE ATTORNEY GENERAL STATE OF COLORADO, Respondents.
ORDER TO DISMISS IN PART AND FOR ANSWER
A. BRIMMER United States District Judge
Francis M. Hernandez is in the custody of the Colorado
Department of Corrections at the Fremont Correctional
Facility in Cañon City, Colorado. On December 7, 2016,
Mr. Hernandez filed, pro se, an Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
challenging his convictions in the District Court for
Arapahoe County, Colorado. Docket No. 1.
raised seven claims in the Application. He conceded that the
ineffective-assistance-of-counsel (IAC) allegations asserted
in claims five, six, and seven have not been exhausted in the
state courts. Docket No. 1 at 5-6, 8. To that end, Mr.
Hernandez filed a Motion to Stay, Docket No. 2, in which he
asked the Court to hold his ' 2254 Application in
abeyance while he exhausted state remedies for his IAC
claims. On March 1, 2017, the motion to stay was denied by
Senior District Judge Lewis T. Babcock. Docket No. 15. In the
March 1 Order, Judge Babcock directed Applicant to show cause
within 30 days why the entire Application should not be
dismissed as a mixed petition, pursuant to Rose v.
Lundy, 455 U.S. 509, 522 (1982), because it contained
both exhausted and unexhausted claims. Id. Mr.
Hernandez was instructed that, to show cause, he must
withdraw the unexhausted IAC claims from the Application.
March 21, 2017, Applicant filed a Motion to Withdraw All
Unexhausted Claims. Docket No. 16. In the motion, Mr.
Hernandez stated that he “is withdrawing claims five,
six and seven from his prior application, in order that this
court may address his exhausted claims.” Id.
at 1. Senior Judge Lewis T. Babcock granted the Motion to
Withdraw on March 23, 2017. Docket No. 17. The claims
remaining for adjudication are claims one, two, three, and
four of the § 2254 Application. Id.
January 9, 2017, Respondents filed a Pre-Answer Response to
the Application. Docket No. 10. In the March 23, 2017 Order,
Judge Babcock instructed Applicant that he could file a Reply
within 30 days. Docket No. 17. No reply has been filed to
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 the Application
STATE COURT PROCEEDINGS AND FEDERAL APPLICATION
Hernandez was convicted by a jury in Arapahoe County Case No.
08CR2105 of three counts of vehicular homicide, one count of
child abuse resulting in death, one count of child abuse
resulting in serious bodily injury, one count of vehicular
assault, one count of driving under restraint, three counts
of third degree assault, and eight counts of leaving the
scene of an accident. Docket No. 10-4 at 2. On April 5, 2010,
Applicant was sentenced to an aggregate 60-year prison term.
Docket No. 10-1 at 3.
direct appeal, the Colorado Court of Appeals merged the eight
convictions for leaving the scene of an accident, but
otherwise affirmed Applicant's convictions. See
People v. Francis M. Hernandez, No. 10CA998 (Colo.App.
June 26, 2014) (unpublished). Docket No. 10-4 at 25. On
February 9, 2015, the Colorado Supreme Court denied
Applicant's petition for certiorari review. Docket No.
15, 2015, Mr. Hernandez filed a motion to reconsider his
sentence, which was denied by the state trial court on
November 30, 2015. Docket No. 10-1 at 4-6. Applicant did not
appeal the trial court's order. Id. at 4.
Hernandez filed his § 2254 Application on December 7,
2016. Following Applicant's withdrawal of the unexhausted
IAC claims, the Application now presents four claims for
(1) The evidence was insufficient to support his conviction
for child abuse. Docket No. 1 at 5.
(2) Applicant was denied his constitutional right to an
impartial jury when the trial court denied a challenge for
cause to a prospective juror, forcing the defense to exercise
a peremptory challenge. Id. at 6.
(3) Applicant was denied his due process right to a fair
trial when the trial court rejected: (1) his common law
wife's invocation of her testimonial marital privilege;
and, (2) Applicant's invocation of his ...