United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND FOR ANSWER
William J. Martinez United States District Judge
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).
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).
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,
Background and State Court Proceedings
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(unpublished) (Wellman I) (Docket No. 12-5).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).
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 Jan. 28, 2016) (unpublished) (Wellman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).
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
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
(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