VonDette v. Timme et al
ORDER of Dismissal. ORDERED that Application and the Amended Application are denied and the action is dismissed. FURTHER ORDERED that no certificate of appealability shall issue, by Judge Lewis T. Babcock on 11/22/11. (lyg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01870-BNB
REA TIMME, Warden, Fremont Correctional Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER OF DISMISSAL
Applicant, Loy VonDette, acting pro se, initiated this action by filing an Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Mr. VonDette is a prisoner
in the custody of the Colorado Department of Corrections (DOC) at the Fremont
Correctional Facility in Cañon City, Colorado. Mr. VonDette is challenging the validity of
his conviction and sentence in Garfield County District Court Case Nos. 05CR322 and
On September 7, 2011, Magistrate Judge Boyd N. Boland 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. Respondents filed a Pre-Answer Response on September 28,
2011. Mr. VonDette filed a Letter on September 30, 2011, that the Court construes as a
Reply to Respondents’ Pre-Answer Response.
The Court must construe the Application, Amended Application, and Reply
liberally because Mr. VonDette 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.
Mr. VonDette agreed to plead guilty with respect to both cases. In Case No.
05CR322, he pled guilty to attempted sexual assault involving a victim under fifteen,
and in Case No. 05CR426, he pled guilty to second degree kidnapping, seize and carry,
and two counts of attempted sexual assault involving a victim under fifteen. In
exchange, all remaining counts were dismissed. On March 9, 2006, the state district
court sentenced Mr. VonDette to a total of sixteen years of incarceration in the DOC.
Mr. VonDette asserts that he filed a direct appeal challenging the denial of his
motion for extended proportionality review that was denied by the state’s highest court
on November 25, 2008. He further asserts that he filed a motion for reconsideration
pursuant to Colo. R. Crim. P. 35(b) on September 3, 2010, which was denied on June 2,
2011. Mr. VonDette states that he did not appeal the denial of the Rule 35(b) motion.
Respondents assert that Mr. VonDette filed a motion for proportionality review on
September 17, 2007; the state district court denied the motion; and Mr. VonDette
appealed. The Court of Appeals (CCA) affirmed the denial, and Mr. VonDette filed a
petition for certiorari review, which the Colorado Supreme Court (CSC) denied on March
22, 2010. Respondents do not address the Rule 35(b) motion for reconsideration that
Mr. VonDette alleges he filed on September 3, 2010.
Based on a review of the state court docket for both Case No. 05CV322 and
Case No. 05CR426 that Mr. VonDette attached to his Reply, and the exhibits provided
by Respondents, the Court finds the following:
Mr. VonDette was sentenced on March 9, 2006. Reply at Attachs. He filed a
motion for proportionality review on September 17, 2007. Reply at Attachs.; PreAnswer Resp. at Ex. C. The motion was denied on August 29, 2008. Reply at Attachs.
Mr. VonDette appealed the denial on September 26, 2008, and the CCA affirmed the
state district court’s denial of the motion on November 25, 2009. Reply at Attachs.; PreAnswer Resp. at Ex. F. The CSC denied Mr. VonDette’s petition for certiorari review on
March 25, 2010. Reply at Attachs.; Pre-Answer Resp. at H. It also appears that Mr.
VonDette filed a Rule 35(b) motion for sentence on September 22, 2010, which the
state district court denied on June 2, 2011. Reply at Attachs. Mr. VonDette did not
appeal the denial. Reply at Attachs.
Mr. VonDette filed the instant action on July 19, 2011. The Application was
deficient because he failed to state on the Court-approved form the claims he intended
to raise in this action. Pursuant to the magistrate judge’s order to amend, Mr. VonDette
filed an Amended Application and asserted that the offenses he pled to are not so
serious and grave to merit an aggravated range sentence. He seeks an extended
Respondents argue that this action is barred by the one-year limitation period in
28 U.S.C. § 2244(d). Section 2244(d) 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
prevented from filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
28 U.S.C. § 2244(d).
To apply the one-year limitation period, the Court first must determine when Mr.
VonDette’s conviction became final. Because Mr. VonDette did not file a direct appeal,
his conviction and sentence became final on April 23, 2006, forty-five days after he was
sentenced, which is when the time for filing a direct appeal expired. See Colo. App. R.
4(b). Mr. VonDette did not file the motion for proportionality review until September 17,
2007. From April 24, 2006, the day after his conviction and sentence became final, until
September 16, 2007, the day prior to when he filed the proportionality review motion,
Mr. VonDette did not have a postconviction motion or other collateral review pending in
state court. Therefore, the time for purposes of § 2244(d) was not tolled for over one
year. The Court need not address the time during which the Rule 35(b) was pending for
purposes of § 2244(d) because more than a year had run prior to when Mr. VonDette
filed the Rule 35(b) motion.
The one-year limitation period in § 2244(d) is not jurisdictional and may be tolled
for equitable reasons. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Generally,
equitable tolling is appropriate if Mr. VonDette shows both “that he has been pursuing
his rights diligently” and “that some extraordinary circumstance stood in his way” and
prevented him from filing in a timely manner. Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005); see Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Equitable tolling also
may be appropriate if the inmate actually is innocent or if the inmate actively pursues
judicial remedies but files a defective pleading within the statutory period. See Gibson
v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). However, simple excusable neglect is
not sufficient to support equitable tolling. See id. Furthermore, in order to demonstrate
he pursued his claims diligently, Mr. VonDette must “allege with specificity ‘the steps he
took to diligently pursue his federal claims.’” Yang v. Archuleta, 525 F.3d 925, 930
(10th Cir. 2008) (quoting Miller, 141 F.3d at 978). In the rare and extraordinary case in
which a habeas petitioner can demonstrate equitable tolling is appropriate on actual
innocence grounds, the petitioner is not required to demonstrate he diligently pursued
the actual innocence claim. Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010).
Mr. VonDette fails to allege any facts in his Application that would justify
equitable tolling of the one-year limitation period. The magistrate judge also directed
him to address equitable tolling in his Reply, but he failed to do so. Mr. VonDette does
not allege that he is actually innocent, that he has been pursuing his claims diligently, or
that some extraordinary circumstance prevented him from filing the instant action in a
timely manner. Furthermore, the documents Mr. VonDette attached to his Reply
provide sufficient data to support the Court’s finding that his Application is untimely.
The action, therefore, will be dismissed as barred by the one-year limitation period.
Accordingly, it is
ORDERED that Application and the Amended Application are denied and the
action is dismissed as barred by the one-year limitation period in 28 U.S.C.
§ 2244(d). It is
FURTHER ORDERED that no certificate of appealability shall issue because Mr.
VonDette has not made a substantial showing that jurists of reason would find it
debatable whether the procedural ruling is correct and whether the underlying claim has
DATED at Denver, Colorado, this
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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