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Jones v. Archuleta

United States District Court, D. Colorado

July 5, 2017

BERNARD JONES, Applicant,
v.
LOU ARCHULETA, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

          ORDER TO DISMISS IN PART AND FOR ANSWER

          PHILIP A. BRIMMER United States District Court

         Applicant, Bernard Jones, is a prisoner in the custody of the Colorado Department of Corrections. Mr. Jones has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 1] challenging the validity of his conviction and sentence in El Paso County District Court case number 97CR873.

         On January 19, 2017, Magistrate Judge Gallagher ordered Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses in this action. On January 26, 2017, Respondents filed their Pre-Answer Response, Docket No. 10, arguing that one of Mr. Jones' claims is procedurally defaulted and that a portion of another claim is not cognizable. On June 8, 2017, Mr. Jones filed a Reply to Pre-Answer Response, Docket No. 24, and, on June 16, 2017, he filed a Supplement to Reply to Pre-Answer Response. Docket No. 26. Mr. Jones also has filed a Motion for Expansion of the Record, Docket No. 27, asking the Court to consider exhibits that are attached to the Reply to Pre-Answer Response. That motion will be granted.

         The Court must construe the application and other papers filed by Mr. Jones 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. For the reasons stated below, the Court will dismiss the application in part.

         I. BACKGROUND

         The relevant factual and procedural background was summarized by the Colorado Court of Appeals as follows:

A jury convicted Jones of first degree sexual assault and possession with intent to distribute a controlled substance. The trial court found that Jones was a habitual offender and sentenced him to sixty-four years in prison on the sexual assault conviction and ninety-six years in prison on the controlled substance conviction. Jones's convicti ons were affirmed on direct appeal. People v. Jones, (Colo.App. No. 98CA0146, Jan. 13, 2000) (not published pursuant to C.A.R. 35(f)).
Jones then filed a pro se Crim. P. 35(c) motion alleging ineffective assistance of trial counsel. The trial court summarily denied the motion. Jones appealed, and a division of this court remanded the case for an evidentiary hearing on the ineffective assistance of trial counsel related to three issues: (1) evidence of the victim's gang affiliation; (2) the use of the victim's juvenile adjudication to show motive or bias; and (3) the testing of Jones's dental moldings. People v. Jones, (Colo.App. No. 01CA1118, Apr. 17, 2003) (not published pursuant to C.A.R. 35(f)).
In 2006, the trial court held an evidentiary hearing, which was later reconvened and completed in 2012. On the date of the final hearing, Jones filed a supplemental Crim. P. 35(c) motion based on alleged newly discovered evidence. In a detailed and well-reasoned order, the trial court denied the Rule 35(c) motions and declined to hear evidence on the supplemental motion.

Docket No. 10-12 at 2-3.

         Mr. Jones commenced the instant action in December 2016 asserting six claims for relief. The six claims are: ineffective assistance of trial counsel by failing to obtain evidence of the victim's gang affiliation (claim 1); ineffective assistance of trial counsel by failing to present evidence of the victim's juvenile adjudication (claim 2); the trial court erred during postconviction proceedings by not considering expert testimony regarding newly discovered evidence that a bite mark on the sexual assault victim was inconsistent with defendant's dentition and his argument that trial counsel were ineffective by failing to have the bite mark tested (claim 3); trial counsel labored under a conflict of interest (claim 4); ineffective assistance of trial counsel by failing to challenge the validity of his prior convictions (claim 5); and vindictive prosecution by punishing Mr. Jones for exercising his constitutional rights (claim 6).

         Respondents do not contend that this action is barred by the one-year limitation period in 28 U.S.C. § 2244(d). Respondents also do not contend that Mr. Jones failed to exhaust state remedies with respect to claims 1, 2, 4, and 6. Respondents do argue that claim 3 must be dismissed as procedurally defaulted. With respect to claim 5, Respondents do not contend that Mr. Jones failed to exhaust state remedies to the extent he is asserting counsel was ineffective by failing to challenge prior convictions. However, Respondents argue that claim 5 is not cognizable to the extent Mr. Jones seeks to directly challenge the prior convictions.

         II. CLAIM 3

         Construing the application liberally, the Court finds that claim 3 has two parts: a claim of actual innocence premised on newly discovered evidence that a bite mark on the sexual assault victim was inconsistent with Mr. Jones' dentition (claim 3(a)); and a claim that trial counsel were ineffective by failing to have a defense expert test the bite mark evidence (claim 3(b)). To the extent Mr. Jones contends in claim 3(a) only that the trial court erred during postconviction proceedings by failing to consider his newly discovered evidence, the claim is a non-cognizable challenge to state court postconviction procedures that does not implicate the validity of his conviction or sentence. See Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (a claim of constitutional error that “focuses only on the State's post-conviction remedy and not the judgment which provides the basis for [the applicant's] incarceration . . . states no cognizable federal habeas claim.”); see also ...


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