Candelaria v. Williams

          ORDER TO DISMISS IN PART AND FOR ANSWER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

         Applicant 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.

         On June 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.

         The 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. 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.

         On 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.

         On 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. 11-6.

         Mr. 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.

         II. ONE-YEAR LIMITATION PERIOD

         Respondents do not argue that this action is barred by the one-year limitation period in 28 U.S.C. § 2244(d).

         III. EXHAUSTION OF STATE REMEDIES

         Respondents 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 exhausted.

         Pursuant 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 ...