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Hernandez v. Archuleta

United States District Court, D. Colorado

May 25, 2017

FRANCIS M. HERNANDEZ, Applicant,
v.
LOU ARCHULETA, Warden, F.C.F., and THE ATTORNEY GENERAL STATE OF COLORADO, Respondents.

          ORDER TO DISMISS IN PART AND FOR ANSWER

          PHILIP A. BRIMMER United States District Judge

         Applicant 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.

         Applicant 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. Id.

         On 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.

         On 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 date.

         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 the Application in part.

         I. STATE COURT PROCEEDINGS AND FEDERAL APPLICATION

         Mr. 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.

         On 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. 10-6.

         On June 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.

         Mr. 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 relief:

(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 ...

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