United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND FOR ANSWER
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
Brett Candelaria is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Candelaria has filed pro
se an Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254, Docket No. 1, challenging the
validity of his conviction in District Court for the City and
County of Denver, Colorado, Case Number 08CR4421.
28, 2019, 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 court 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 July 31, 2019, Respondents filed their Pre-Answer
Response, Docket No. 11, arguing that claim two in the
Application should be dismissed. On August 19, 2019, Mr.
Candelaria filed Applicant's Reply to Respondents'
Pre-Answer Response, Docket No. 12.
Court must construe the Application and other papers filed by
Mr. Candelaria 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. For the reasons stated below, the Court will dismiss
the action in part.
FACTUAL AND PROCEDURAL BACKGROUND
Candelaria was convicted by a jury of multiple counts of
sexual assault and attempted sexual assault on a child as
well as contributing to the delinquency of a minor. He was
sentenced to an indeterminate term of thirty-six years to
life in prison. On July 3, 2013, the Colorado Court of
Appeals affirmed the judgment of conviction. See
Docket No. 11-3. On August 18, 2014, the Colorado Supreme
Court denied Mr. Candelaria's petition for writ of
certiorari on direct appeal. See Docket No. 11-4.
December 15, 2014, Mr. Candelaria filed in the trial court a
postconviction motion for sentence reconsideration.
See Docket No. 11-1 at 16. On April 14, 2015, the
trial court denied that motion. See id.
February 10, 2016, Mr. Candelaria filed in the trial court a
postconviction motion pursuant to Rule 35(c) of the Colorado
Rules of Criminal Procedure. See Id. On September 6,
2016, the trial court denied the Rule 35(c) motion. See
Id. at 15. On May 9, 2019, the Colorado Court of Appeals
affirmed the trial court's order. See Docket No.
Candelaria asserts five claims in the Application. In claim
one, he contends his constitutional rights to an impartial
jury and a fair trial were violated because the trial court
failed to excuse for cause two jurors who allegedly were
biased. In claim two, he contends his constitutional right to
a fair trial was violated when the trial court admitted
evidence of prior bad acts in violation of Colorado state
law. Mr. Candelaria contends in claim three that his
constitutional right to a fair trial was violated by
prosecutorial misconduct. In claim four, he contends there
was insufficient evidence to support certain convictions in
violation of his constitutional rights. Finally, Mr.
Candelaria contends in claim five that trial counsel was
constitutionally ineffective by failing to consult with
and/or call a defense expert, failing to object to
prosecutorial misconduct, failing to present an adequate
defense as promised in his opening statement, and failing to
call exculpatory witnesses.
ONE-YEAR LIMITATION PERIOD
do not argue that this action is barred by the one-year
limitation period in 28 U.S.C. § 2244(d).
EXHAUSTION OF STATE REMEDIES
do not argue that Mr. Candelaria failed to exhaust state
remedies for claims one, three, four, and five. However,
Respondents argue that claim two was not fairly presented to
the state courts as a federal constitutional claim and is not
to 28 U.S.C. § 2254(b)(1), an application for a writ of
habeas corpus may not be granted unless it appears that the
applicant has exhausted state remedies or that no adequate
state remedies are available or effective to protect the
applicant's rights. See O'Sullivan v.
Boerckel, 526 U.S. 838 (1999); Dever v. Kan.
StatePenitentiary, 36 F.3d 1531, 1534 (10th
Cir. 1994). The exhaustion requirement is satisfied once the
federal claim has been presented fairly to the state courts.
See Castille v. Peoples, 489 U.S. 346, 351 (1989).
Fair presentation requires that the federal issue ...