United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND FOR ANSWER
A. BRIMMER UNITED STATES DISTRICT JUDGE
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.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
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.
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.
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.
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).