United States District Court, D. Colorado
RECOMMENDATION REGARDING APPLICATION FOR WRIT OF
P. Gallagher, United States Magistrate Judge
matter comes before the Court on the Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No.
(“the Application”) filed pro se by
Applicant on March 8, 2019. The matter has been referred to
this Magistrate Judge for recommendation (ECF No.
Court must construe the Application and other papers filed by
Mr. Hamilton 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.
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 Application be denied.
FACTUAL AND PROCEDURAL BACKGROUND
Hamilton is challenging the validity of his conviction and
sentence in Fremont County District Court case number
08CR122. On February 11, 2009, Mr. Hamilton agreed to plead
guilty to one count of internet luring of a child.
(See ECF No. 11-1 at pp.2-4, 8-9.) On May 6, 2009,
he was sentenced to an indeterminate term of two years to
life in prison. (See Id. at 8.) Mr. Hamilton did not
file a direct appeal.
November 6, 2009, and again on August 9, 2010, Mr. Hamilton
filed in the trial court letters requesting copies from the
court file and free transcripts. (See Id. at pp.7.)
On April 13, 2012, he filed in the trial court a
postconviction motion pursuant to Rule 35(c) of the Colorado
Rules of Criminal Procedure. (See id.; ECF No.
11-2.) On May 8, 2012, the trial court denied the Rule 35(c)
motion. (See ECF No. 11-1 at p.7.) On April 24,
2014, the Colorado Court of Appeals affirmed the trial
court's order denying the Rule 35(c) motion.
(See ECF No. 11-4.) On May 11, 2015, the Colorado
Supreme Court denied Mr. Hamilton's petition for writ of
certiorari. (See ECF No. 11-5.)
Application was filed on March 8, 2019. Mr. Hamilton asserts
one claim contending his Fourth Amendment rights were
violated because of an illegal wiretap of his cellular
telephone. According to Mr. Hamilton, the police did not
obtain a warrant and he did not consent to a search. He
specifically asks the Court to remand the case to the state
courts for a determination of the voluntariness of his
consent under the new standards announced in People v.
Delage, 418 P.3d 1178 (Colo. 2018).
March 11, 2019, the Court 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 March 22, 2019,
Respondents filed their Pre-Answer Response (ECF No. 11)
arguing that the action is barred by the one-year limitation
period and that Mr. Hamilton's Fourth Amendment claim is
unexhausted and procedurally defaulted. Respondents also
assert that the Fourth Amendment claim is not a cognizable
habeas corpus claim. On April 17, 2019, in reply to the
Pre-Answer Response, Mr. Hamilton filed a Motion for a
Stay/and a Dismissal With Prejudice of the Habeas Corpus
Pending Before This Court (ECF No. 12). Mr. Hamilton concedes
that the Fourth Amendment claim is not exhausted and he asks
the Court to stay this action so he can return to state court
to exhaust state remedies. Because the Court finds that the
action is subject to dismissal for reasons other than failure
to exhaust as discussed below, the Court will recommend that
the motion for stay be denied as moot.
ONE-YEAR LIMITATION PERIOD
first argue that the action is barred by the one-year
limitation period in 28 U.S.C. § 2244(d). That statute
provides as follows:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of-(A) the date
on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was