United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND FOR ANSWER
CHRISTINE M. ARGUELLO, United States District Judge
William Daniel Hardin, is a prisoner in the custody of the
Colorado Department of Corrections, currently incarcerated at
the Arkansas Valley Correctional Facility in Ordway,
Colorado. On November 2, 2017, Mr. Hardin filed pro
se an Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 (Doc. # 1) and a Letter (Doc. # 3),
challenging his conviction in Denver County District Court
case 1987CR1542. He has paid the filing fee. (Doc. # 5).
Following an order to cure deficiencies, Applicant filed an
Amended Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254 (Doc. # 6), on November 28, 2017.
November 30, 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 they intended
to raise either or both of those defenses in this action.
(Doc. # 7). After receiving an extension of time, Respondents
file their Pre-Answer Response (Doc. # 13) on January 18,
2018, arguing that the Application appeared timely but that
Claims One, Two, Four, Five, Seven, Eight, Nine and Ten were
procedurally defaulted, Claims One and Two were moot, and
Claims Three, Six, and Nine failed to present a cognizable
habeas claim. Mr. Hardin filed a Reply (Doc. # 16) on March
8, 2018, and a Supplement to the Reply (Doc. # 17) on March
Court must construe the documents filed by Mr. Hardin
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 action in part.
FACTUAL AND PROCEDURAL BACKGROUND
1988, Mr. Hardin was convicted by a jury of two counts of
aggravated robbery, two counts of felony murder, and two
counts of murder after deliberation. He was sentenced to
consecutive terms of sixteen years for each aggravated
robbery conviction and life imprisonment for each felony
Colorado Court of Appeals provides the following account of
the lengthy procedural background in this case:
Hardin was accused of robbing three men, Isaac Fisher, Victor
Irving, and Lloyd Rhodes, and of killing two of the men,
Fisher and Irving. The prosecution charged Hardin with one
count of aggravated robbery for the robbery of all three men
and with two counts each of felony murder and murder after
deliberation with respect to the killings of Fisher and
Irving. When Hardin's 1988 trial concluded, the jury
found him guilty by separate verdict forms of two counts of
aggravated robbery regarding Irving and Rhodes and two counts
each of felony murder and murder after deliberation with
respect to Fisher and Irving. The jury acquitted Hardin of
the aggravated robbery count with respect to Fisher.
The trial court entered a judgment of conviction and
sentenced Hardin to consecutive terms of imprisonment of
sixteen years for each aggravated robbery conviction and life
for each felony murder conviction. It did not sentence Hardin
on the murder after deliberation convictions.
Several months after the trial, Hardin filed a notice of
appeal regarding the judgment of conviction. Soon after, he
requested and was granted a limited remand to pursue an
ineffective assistance claim, pursuant to Crim. P. 35(c),
concerning his trial counsel. To avoid a conflict of
interest, the public defender's office was allowed to
withdraw from the postconviction proceedings and the appeal.
In granting the remand in 1991, a division of this court
ordered that the postconviction proceedings “be done
with all due speed.” Over the next six years, the
postconviction court appointed a succession of private
attorneys to represent Hardin; they all withdrew before
resolution of the proceedings. The postconviction court
repeatedly set the matter, only to later vacate the settings.
Hardin repeatedly expressed frustration with his legal
representation and with his appointed attorneys' lack of
action in the postconviction court and in this court.
A division of this court eventually vacated the limited
remand and decided Hardin's direct appeal in 1997, about
ten years after Hardin committed the underlying crimes.
See People v. Hardin, (Colo.App. No. 88CA1898, Dec.
18, 1997) (not published pursuant to C.A.R. 35(f))
(Hardin I). That division affirmed Hardin's
convictions, but it remanded with instructions for the trial
court to vacate the felony murder conviction concerning
Irving's death, enter a judgment of conviction for the
count of murder after deliberation concerning Irving's
death, and resentence Hardin accordingly. Id. That
division also concluded that Hardin's ineffective
assistance of counsel claims should be considered in a
postconviction proceeding. Id.
Hardin later filed a pro se Crim. P. 35(c) motion raising
numerous claims, including ineffective assistance of counsel.
The postconviction court denied the motion in 1999 without
holding a hearing, appointing counsel, or resentencing Hardin
in accordance with the remand instructions. Hardin appealed
the 1999 order denying his postconviction motion. In December
2000, a division of this court reversed the order and
remanded with instructions to hold further proceedings on
Hardin's postconviction claims and to comply with the
1997 remand instructions regarding resentencing. See
People v. Hardin, (Colo.App. No. 99CA2405, Dec. 21,
2000) (not published pursuant to C.A.R. 35(f)).
After the remand, the postconviction court appointed another
attorney to represent Hardin in April 2001. Over the next
four years, and after the postconviction court allowed
several extensions of time to supplement Hardin's pro se
Crim. P. 35(c) motion, Hardin's appointed counsel failed
to file any supplement. Meanwhile, Hardin made numerous pro
se filings expressing his frustration with his attorney's
inaction and his desire to obtain adequate counsel. In
response to the inactivity in these proceedings, the
postconviction court appointed Hardin's current attorney
in February 2005.
Almost eight years later, in December 2012 - about
twenty-four years after trial and about twelve years after
Hardin filed his original Crim. P. 35(c) motion - the third
and final trial judge to preside over this case since the
2000 remand issued an order mandating that Hardin's
postconviction proceedings “get moving.”
Thereafter, Hardin's attorney filed two supplemental
briefs in support of his motion for postconviction relief.
The postconviction court held an evidentiary hearing over
three days on the matter. After the hearing, the
postconviction court denied Hardin's motion. In denying
the motion, the postconviction court stated that the
twelve-year delay in the postconviction proceedings
“did not amount to a remedial due process violation . .
. and, perhaps most importantly, did not legally prejudice
(Doc. # 13-9 at 2-6) (People v. Hardin, No. 14CA0710
(Colo.App. Dec. 1, 2016) (published as People v.
Hardin, 2016 COA 175) (Hardin III).
the trial court's lengthy written order, issued on
February 26, 2014, denying Mr. Hardin's postconviction
claims, (Doc. # 13-7), he appealed the denial, (Doc. # 13-8).
The Colorado Court of Appeals confirmed the denial of his
postconviction claims on December 1, 2016. (Doc. # 13-9). The
Colorado Supreme Court denied certiorari review on October
16, 2017. (Doc. # 13-10 and 13-11).
Hardin filed the instant federal habeas corpus action on
November 2, 2017. (Doc. # 1). In the Amended Application, Mr.
Hardin asserts the following ten claims for relief:
1. Mr. Hardin's convictions for felony murder and
aggravated robbery are invalid because the jury failed to
convict him of the charged aggravated robbery which served as
the underlying felony for the aggravated murder. This
violated the Fifth, Sixth, Eighth, and Fourteenth Amendments
of the United States Constitution;
2. It was improper for Mr. Hardin to be convicted and
sentenced for aggravated robbery when that aggravated robbery
served as the predicate felony for a felony murder
3. The over eight year delay in adjudicating Mr. Hardin's
direct appeal violated his rights under the due process and
equal protection clauses of the United States Constitution;
4. The trial court's “acquittal first”
instructions in Mr. Hardin's case interfered with the
jury's ability to consider lesser included offenses thus
depriving Mr. Hardin of his Fifth, Sixth and Fourteenth
Amendment rights under the United States Constitution;
5. The trial court erred in failing to provide testimony
requested by the jury during its deliberations thus violating
Mr. Hardin's rights as guaranteed by the United States
6. The Court's over 12-year delay in resolving Mr.
Hardin's Crim. P. 35(c) motion violated Mr. Hardin's
rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, and the
corresponding Colorado Constitution;
7. The denial of Mr. Hardin's right to counsel of choice
violated the Sixth and Fourteenth Amendments of the United
States Constitution and clearly established federal law;
8. Mr. Hardin's appellate counsel rendered ineffective
assistance of counsel by failing to raise ‘counsel of
choice' on direct appeal as this clearly violated his
constitutional rights and clearly established federal law;
9. Counsel was ineffective at Mr. Hardin's trial thus
violating Mr. Hardin's constitutional rights pursuant to
the Sixth and Fourteenth Amendments;
10. Delay in the re-sentencing of Mr. Hardin of 15 years form
the Court of Appeals mandate in 88CA1898 requiring
re-sentencing issued in 1998 following denial of a petition
for certiorari to the Colorado Supreme Court, commensurate
with the delay in re-sentencing of Mr. Hardin of 12 years
from the Court of Appeals mandate in 99CA2405 requiring
re-sentencing in ...