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Wellman v. Colorado Department of Corrections

United States District Court, D. Colorado

March 22, 2018

JIMMIE WELLMAN, Applicant,
v.
COLORADO DEPARTMENT OF CORRECTIONS, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

          ORDER TO DISMISS IN PART AND FOR ANSWER

          William J. Martinez United States District Judge

         Applicant, Jimmie Wellman, is in the custody of the Colorado Department of Corrections (CDOC) at the Arkansas Valley Correctional Facility in Ordway, Colorado. He initiated this action on September 14, 2017, by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Docket No. 1) challenging the validity of a convictions and sentence imposed in the District Court of Denver County, Colorado. Mr. Wellman filed an Amended § 2254 Application on November 16, 2017. (Docket No. 7).

         On November 22, 2017, U.S. Magistrate Judge Gordon P. Gallagher directed Respondents to file a pre-answer response addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). Respondents submitted a Pre-Answer Response on December 11, 2017. (Docket No. 12). Applicant filed a Reply on February 23, 2018, after obtaining an extension of time. (Docket No. 20).

         Mr. Wellman's filings are construed 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 cannot 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. Background and State Court Proceedings

         In October 2007, Mr. Wellman was convicted by a jury in Denver County District Court Case No. 06CR977 of attempted first degree murder, assault, menacing, and witness intimidation and tampering. (Docket No. 12-1 at 2; No. 12-5 at 13). He was sentenced to an aggregate 70-year prison term. (Id.). The Colorado Court of Appeals affirmed Applicant's convictions in People v. Jimmie Wellman, No. 07CA2366 (Colo.App. Sept. 9, 2010) (unpublished) (Wellman I) (Docket No. 12-5). The Colorado Supreme Court denied Applicant's petition for certiorari review on January 18, 2011. (Docket No. 12-6). The United States Supreme Court denied certiorari review on June 13, 2011. (Docket No. 12-7).

         Mr. Wellman filed a motion for post-conviction relief on July 13, 2011, which the state district court denied on January 9, 2014. (Docket No. 12-1 at 4, 8). The Colorado Court of Appeals affirmed in People v. Jimmie Wellman, No. 14CA0358 (Colo.App. Jan. 28, 2016) (unpublished) (Wellman II). (Docket No. 12-11). Applicant's petition for certiorari review was denied by the Colorado Supreme Court on September 12, 2016. (Docket No. 12-12).

         Mr. Wellman filed another post-conviction motion on December 30, 2016, which was denied by the state district court on February 2, 2017. (Docket No. 12-1 at 10). He did not appeal. Applicant filed his third and fourth state post-conviction motions on September 5, 2017 and September 26, 2017, which were denied on September 8, 2017 and September 27, 2017, respectively. (Id.). Applicant did not appeal either order.

         Mr. Wellman initiated this § 2254 proceeding on September 14, 2017. He asserts the following claims for relief in his Amended § 2254 Application:

(1) Applicant's constitutional rights to counsel, a fair trial, and due process were violated when the state district court deprived him of his right to counsel because he never validly waived his right to counsel, or if he did, the waiver was later revoked;
(2) Applicant was denied his constitutional right to a fair trial because the trial judge was biased against him;
(3) Applicant's due process rights were violated when he was tried without any meaningful opportunity to prepare his defense;
(4) Applicant's equal protection and due process rights were violated when he was forced to wear jail clothing and shackle restraints throughout his three-day trial;
(5) Applicant was denied his Sixth Amendment right to effective assistance of counsel on appeal when appellate counsel omitted meritorious claims and inadequately raised a ...

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