United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND FOR ANSWER
A. BRIMMER United States District Court
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.
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.
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.
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
Docket No. 10-12 at 2-3.
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
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.
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.”);
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