United States District Court, D. Colorado
RECOMMENDATION REGARDING DISMISSAL
P. Gallagher United States Magistrate Judge
matter comes before the Court on the Amended Application for
a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
(ECF No. 6) (“the Amended Application”)
filed pro se by Applicant on March 18, 2019. The
matter has been referred to this Magistrate Judge for
recommendation (ECF No. 14).
Court must construe the Amended Application and other papers
filed by Applicant 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 Amended Application be
FACTUAL AND PROCEDURAL BACKGROUND
Daud Ali Mohamed, is a prisoner in the custody of the
Colorado Department of Corrections, currently incarcerated at
the Delta Correctional Center. Mr. Mohamed has filed pro
se an Amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 6), challenging
the validity of his conviction in Arapahoe County District
Court case number 2014CR1323.
March 20, 2019, the Court ordered Respondents to file a
Pre-Answer Response that addressed 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 intended to raise either or both
of those defenses in this action. (ECF No. 7). On March 29,
2019, Respondents filed their Pre-Answer Response (ECF No.
11) arguing that Mr. Mohamed's claims are unexhausted and
procedurally barred. On April 12, 2019, Mr. Mohamed filed a
reply (ECF No. 12) to the Pre-Answer Response.
Mohamed's convictions were a result of an incident with
his teenage son.
Colorado Court of Appeals provides the following background:
Defendant lived with his teenaged son, who was the victim in
this case. While defendant cut the victim's hair one day,
they got into an argument about whether the victim's
breath smelled bad. The argument escalated, and defendant hit
the victim repeatedly with a metal pestle, causing cuts that
required stitches to close. Defendant also hog-tied the
victim and cut off his clothes. Defendant eventually untied
the victim and left for work.
(ECF No. 11-3 at 2) (People v. Mohamed, 2016CA 1467
(Colo.App. Aug. 30, 2018) (unpublished). Following a jury
trial, Mr. Mohamed was found guilty of second degree assault,
menacing, and two counts of child abuse. He was sentenced to
five years in prison.
Colorado Court of Appeals affirmed the conviction on August
20, 2018. (ECF No. 11-3), People v. Mohamed,
(Colo.App. No. 16CA1467, Aug. 30, 2018) (unpublished), and
the Colorado Supreme Court denied certiorari on December 17,
2018, (ECF No. 11-4). Prior to his direct appeal, Applicant
filed a motion to reduce sentence, which was denied.
(See ECF No. 11-1 at 6-7). He did not appeal.
Mohamed initiated this action on February 22, 2019. (ECF No.
1). In his amended application, he asserts the following
1. Arapahoe County District Court violated Amendment V of the
U.S. Const. when it accepted a fraudulent Entry of
2. Arapahoe County District Court violated Amendment VI of
the U.S. Const. when the court denied the defendant the
compulsory process for obtaining ...