Mohamed v. Green

          RECOMMENDATION REGARDING DISMISSAL

          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. 6)^[1] (“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)^[2].

         The 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 (10^th 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

         Applicant, 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.

         On 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.

         Mr. Mohamed's convictions were a result of an incident with his teenage son.

         The 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.

         The 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. (See id.).

         Mr. Mohamed initiated this action on February 22, 2019. (ECF No. 1). In his amended application, he asserts the following three claims:

1. Arapahoe County District Court violated Amendment V of the U.S. Const. when it accepted a fraudulent Entry of Appearance;

2. Arapahoe County District Court violated Amendment VI of the U.S. Const. when the court denied the defendant the compulsory process for obtaining ...