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White v. Hansen

United States District Court, D. Colorado

April 11, 2019

JUSTIN M. WHITE, Applicant,
v.
MATTHEW HANSEN, Warden, Sterling Correctional Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

          RECOMMENDATION REGARDING AMENDED APPLICATION FOR WRIT OF HABEAS CORPUS

          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on the amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 11)[1] (“the Amended Application”) filed pro se by Applicant on December 10, 2018. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 28.)[2]

         The Court must construe the Amended Application liberally because Mr. White 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.

         The Court has reviewed the filings to date. The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Amended Application be denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. White is challenging the validity of his conviction and sentence in El Paso County District Court case number 12CR2466. The following description of the relevant factual and procedural background is taken from an order of the Colorado Court of Appeals during state court postconviction proceedings:

In 2013, White pleaded guilty to sexual assault, a class 3 felony, and the trial court sentenced him to Sex Offender Intensive Supervision Probation for an indeterminate term of twenty years to life. Shortly thereafter, a probation revocation complaint was filed, seeking to revoke White's probation on several bases, including a failure to report to his probation officer for a scheduled appointment.
White admitted to the allegations in the revocation complaint, and the court revoked his probation. On January 3, 2014, the court resentenced him to an indeterminate term of five years to life in the custody of the Department of Corrections.

(ECF No. 19-2 at 2) (People v. White, No. 17CA1750 (Colo.App. July 26, 2018) (unpublished)). Mr. White did not file a direct appeal from either the original judgment of conviction in 2013 or the revocation and resentencing in January 2014.

         On April 22, 2014, Mr. White filed a motion for sentence reconsideration pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure. (See ECF No. 19-1 at 10.) On June 12, 2014, the trial court denied the Rule 35(b) motion. (See id.) Mr. White did not appeal.

         On August 21, 2017, Mr. White filed in the trial court another postconviction motion that challenged the revocation of his probation. (See Id. at 9; ECF No. 19-2 at 2-3.) On September 18, 2017, the trial court denied the motion. (See ECF No. 19-1 at 9.) On July 26, 2018, the Colorado Court of Appeals affirmed the trial court's determination that the motion was untimely. (See ECF No. 19-2.)

         Mr. White initiated this action on October 1, 2018. He asserts three claims in the Amended Application. He contends in claim one that his state and federal constitutional rights to a hearing by an impartial court were violated in connection with the revocation of his probation. He contends in claim two that his state and federal constitutional rights to confront his accuser were violated. He finally contends in claim three that his state and federal constitutional rights to effective assistance of counsel were violated in connection with his guilty plea and conviction in January 2013.

         On December 21, 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 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 January 10, 2019, Respondents filed their Pre-Answer Response (ECF No. 19) arguing that the action is barred by the one-year limitation period and that Mr. White's claims are unexhausted and procedurally defaulted.

         On February 15, 2019, the Court entered an order dismissing this action based on the affirmative defenses raised by Respondents in the Pre-Answer Response. On February 27, 2019, Mr. White filed a notice (ECF No. 23) alleging he had not received a copy of the Pre-Answer Response. On March 1, 2019, Respondents filed a Response to Notice (ECF No. 24) acknowledging that a copy of the Pre-Answer Response was not mailed to Mr. White. Respondents also indicated in the March 1 Notice that a copy of the Pre-Answer Response was being mailed to Mr. White with a copy of the Response to Notice. On March 7, 2019, the Court entered an Order Reinstating Action (ECF No. 25) that vacated the Order of Dismissal because Mr. White had been denied notice and an opportunity to respond to the Pre-Answer Response. The Court also directed Mr. White to file any reply to the Pre-Answer Response on or before March 22, 2019.

         On March 13, 2019, Mr. White filed a document titled “Notice of Default, Affidavit of Notice” (ECF No. 26) seeking a default judgment because Respondents allegedly failed to file a Pre-Answer Response on or before January 16, 2019. Mr. White signed the “Notice of Default/Affidavit of Notice” on March 7, 2019, and the document was submitted to prison officials for mailing to the Court the ...


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