United States District Court, D. Colorado
CHARLES K. FORD, Applicant,
RICK RAEMISCH, Executive Director, Colorado Department of Corrections, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER TO DISMISS IN PART
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE
Charles K. Ford, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Ford has filed pro se
an amended Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 (ECF No. 9) challenging the validity
of his conviction and sentence in Denver District Court case
September 12, 2017, Magistrate Judge Gordon P. 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 October 3, 2017, Respondents filed their
Pre-Answer Response (ECF No. 14) arguing that two of Mr.
Ford's claims should be dismissed. Mr. Ford has not filed
a reply to the Pre-Answer Response despite being given an
opportunity to do so.
Court must construe the amended application liberally because
Mr. Ford 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 action in part.
FACTUAL AND PROCEDURAL BACKGROUND
following background information is taken from the opinion of
the Colorado Court of Appeals on postconviction appeal.
In a city park, defendant got into a fistfight with the
victim. After the fight ended and the victim was walking
away, defendant acquired a gun from an acquaintance and shot
the victim several times. Although initially charged with
first degree murder, pursuant to a plea agreement, defendant
pleaded guilty to one count of second degree murder and one
count of first degree assault in the shooting death of the
victim. As part of the plea agreement, defendant agreed to
provide truthful information and testimony about other crimes
and the perpetrators of those crimes. In exchange, the
prosecution agreed to limit the sentence to between
thirty-five and sixty years in the custody of the Department
of Corrections (DOC) and to allow the court to consider
defendant's cooperation in those other cases in
determining the sentence and whether to reduce the sentence
Defendant's sentencing was postponed for several months
to allow him to provide testimony in those other cases and to
enable the court to consider his cooperation in arriving at
an appropriate sentence within the stipulated range. As it
turned out, however, all of those cases were resolved without
the prosecution needing defendant to testify.
Before sentencing, defendant's two attorneys, Mr. Rios
and Ms. Frei, filed a Crim. P. 32(d) motion to withdraw
defendant's guilty plea, alleging that they had provided
ineffective assistance. At the same time, they sought to
withdraw as his counsel and to have alternate defense counsel
appointed. The district court denied both the Crim. P. 32(d)
motion and counsel's motion to withdraw, and sentenced
defendant to consecutive prison terms of thirty-two years on
the second degree murder conviction and twelve years on the
first degree assault conviction. A division of this court
affirmed the denial of defendant's Crim. P. 32(d) motion.
See People v. Ford, (Colo.App. No. 10CA1090, Mar.
15, 2012) (not published pursuant to C.A.R. 35(f)).
After the mandate issued following his direct appeal,
defendant filed a pro se Crim. P. 35(b) motion for
reconsideration of his sentence. The district court denied
that motion, finding that defendant's sentence was within
the range provided for in the plea agreement, was appropriate
when entered, and remained appropriate.
Defendant thereafter filed a pro se Crim. P. 35(c) motion
alleging that he received ineffective assistance of counsel
because (1) Mr. Rios promised him that his initial sentence
would be cut in half on reconsideration; (2) Mr. Rios did not
accurately advise him that he would have to serve
seventy-five percent of his sentence before becoming parole
eligible; (3) he was promised as part of the plea agreement
that he would be transferred out of state, but Mr. Rios
failed to require specific performance of that promise; and
(4) he was coerced into pleading guilty because his attorneys
failed to fully investigate the facts of the case and his
self-defense claim and pressured him into accepting the plea.
He also alleged that, but for counsel's deficient
performance, he would not have accepted the plea, and
instead, would have insisted on going to trial.
The district court, by a written order, denied the claim
regarding plea counsel's failure to investigate because
defendant failed to allege with specificity what
investigation could have been done, what the result of such
an investigation would have been, and how it would have
changed his decision to plead guilty. However, the court
found that defendant's remaining claims had arguable
merit and appointed counsel to represent him.
A supplemental motion filed by counsel reiterated
defendant's first three claims, specifically alleging
that plea counsel had promised defendant he would be
sentenced to thirty-five years and that the sentence would be
reduced to seventeen and a half years upon reconsideration.
The supplemental motion alleged that the promises made as
part of the plea agreement were unenforceable and that
defendant therefore should be allowed to withdraw his plea.
At the postconviction hearing, defendant, Mr. Rios, Ms. Frei,
and the district attorney testified. The court denied
defendant's motion by a written order. The court found
credible Mr. Rios' testimony that he never promised
defendant a sentence of thirty-five years or told him that it
would be cut in half on reconsideration. The court also found
that the plea agreement did not include a promise that
defendant would serve his sentence out of state. The court
noted that neither the People nor defendant's attorney
had the authority to get him transferred, but that they could
make a request to the DOC for such a transfer, which was
completely within the DOC's discretion. Thus, the court
concluded that ...