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Wells v. Falk

United States District Court, D. Colorado

October 18, 2018

DAVID CHARLES WELLS, Applicant,
v.
JAMES FALK and CYNTHIA H. COFFMAN, Attorney General of the State of Colorado, Respondents.

          ORDER TO DISMISS IN PART AND FOR ANSWER

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE

         Applicant David Charles Wells is a prisoner in the custody of the Colorado Department of Corrections. Mr. Wells 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 in Arapahoe County District Court, Case Number 2007CR2598.

         On September 4, 2018, 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 September 18, 2018, Respondents filed their Pre-Answer Response, Docket No. 11, arguing that two claims in the Application should be dismissed. On October 9, 2018, Mr. Wells filed Applicant's Reply to Pre-Answer Response. Docket No. 12.

         The Court must construe the Application and other papers filed by Mr. Wells 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. Wells was convicted of first degree murder and was sentenced to life in prison without the possibility of parole. The following background information is taken from the opinion of the Colorado Court of Appeals on direct appeal.

The night before defendant's live-in girlfriend was going to move out of his home, he fatally stabbed her, and then stabbed himself twice in the chest. Police discovered a letter describing defendant's anger with the victim underneath a calendar on the dining room table.
Upon learning that defendant and the victim did not arrive at work that morning, the victim's brother went to the home and discovered defendant lying on the bed, covered in blood. The brother called police, who arrived at the scene and discovered the deceased victim on the floor. Defendant was transported to the hospital, where he underwent surgery to treat one of his stab wounds. At the hospital, defendant confessed to stabbing the victim and himself to a social worker and police officers.
At trial, he maintained that he had killed the victim in self-defense.

Docket No. 11-4 at 2. The judgment of conviction was affirmed on direct appeal. See id. On January 22, 2013, the Colorado Supreme Court denied Mr. Wells' petition for writ of certiorari on direct appeal. See Docket No. 11-5.

         On May 9, 2013, Mr. Wells filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. See Docket No. 11-1 at 13. The trial court denied the Rule 35(c) motion without a hearing and that order was affirmed on appeal. See Docket No. 11-8. On August 24, 2015, the Colorado Supreme Court denied Mr. Wells' petition for writ of certiorari. See Docket No. 11-9.

         On September 8, 2015, Mr. Wells filed a second Rule 35(c) motion that he characterized as an “Addendum” to the original Rule 35(c) motion. See Docket No. 11-1 at 11. The trial court denied the “Addendum” without a hearing because it was successive and also because the claims lacked merit. On November 30, 2017, the Colorado Court of Appeals affirmed the trial court's order denying the second Rule 35(c) motion because the successive motion was barred by Rule 35(c)(3)(VII) of the Colorado Rules of Criminal Procedure. See Docket No. 11-12.

         Mr. Wells asserts four claims in the Application. He claims he was denied a speedy trial (claim one), his right to conflict-free counsel was violated (claim two), the prosecutor knowingly presented false testimony (claim three), and counsel was ineffective in various ways (claim four).

         II. ONE-YEAR ...


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