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Hamilton v. Romero

United States District Court, D. Colorado

April 22, 2019

JOSEPH HAMILTON, Applicant,
v.
FNU ROMERO, Warden at Colorado Territory Correctional Facility, and PHILLIP WEISER, Attorney General of the State of Colorado, Respondents.

          RECOMMENDATION REGARDING APPLICATION FOR WRIT OF HABEAS CORPUS

          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1)[1] (“the Application”) filed pro se by Applicant on March 8, 2019. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 14.)[2]

         The 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.

         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 Application be denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. 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.

         On 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.)

         The 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).

         On 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.

         II. DISCUSSION

         A. ONE-YEAR LIMITATION PERIOD

         Respondents 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 review;
(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 ...

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