Phan v. Sloan et al

Filing 6

ORDER of Dismissal. ORDERED that the Application is 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-02353-BNB
LONG BA PHON,
Applicant,
v.
BRIGHAM SLOAN, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Long Ba Phan, acting pro se, initiated this action by filing an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Applicant is a
prisoner in the custody of the Colorado Department of Corrections (DOC) at the Bent
County Correctional Facility in Las Animas, Colorado. Applicant is challenging the
validity of his conviction and sentence in Jefferson County District Court Case No.
00CR2752.
On September 13, 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 29, 2011. Applicant did not reply to the Response.

The Court must construe the Application liberally because Applicant 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 cannot act as 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.
Applicant was convicted by a jury of attempted first degree murder (extreme
indifference), first degree assault (extreme indifference), first degree assault, two counts
of menacing, and two counts of crime of violence, and was sentenced to a total of forty
years of incarceration in the DOC. Pre-Answer Resp. at App. O. Applicant asserts that
he was convicted on June 20, 2001; he filed a direct appeal that was denied by the
highest state court on April 9, 2007; and he filed a postconviction motion on June 24,
2008, which he appealed to the highest state court but was denied on March 28, 2011.
Respondents concur that Applicant’s petition for certiorari review in his direct
appeal was denied on April 9, 2007. Respondents, however, contend that Applicant
filed his first postconviction motion on August 6, 2007, seeking a modification of his
sentence; the motion was denied on August 17, eleven days later; but Applicant did not
appeal the denial. Respondents further assert that Applicant filed a second
postconviction motion on May 15, 2008; which was denied on June 2, 2008; but again
Applicant did not appeal the denial. Respondents also assert that Applicant filed his
third and final postconviction motion on June 24, 2008; the motion was denied by the
district court on July 31, 2008; Applicant appealed the denial; but his petition for

certiorari review was denied on March 28, 2011. Applicant does not refute
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Respondents’ findings.
Applicant filed the instant action on September 7, 2011. He signed and dated the
Application on August 22, 2011, however.
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
review; or
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
diligence.
(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
subsection.
28 U.S.C. § 2244(d).
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To apply the one-year limitation period, the Court first must determine when
Applicant’s conviction became final. Applicant’s petition for certiorari review in his direct
appeal was denied on April 9, 2007. Pre-Answer Resp. at App. L. Although Applicant
did not file a petition for a writ of certiorari in the United States Supreme Court on direct
appeal, he had ninety days to do so after the Colorado Supreme Court denied his
petition for certiorari review. See Sup. Ct. R. 13.1. Therefore, figuring from April 10,
2007, the day after the writ for certiorari was denied, Applicant’s conviction became final
July 9, 2007, when the time for seeking review in the United States Supreme Court
expired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (citing Rhine v.
Boone, 182 F.3d 1153, 1155 (10th Cir. 1999); Sup. Ct. R. 30.1. (the last day of the
period computed is included unless it is a Saturday, Sunday, in which event the period
runs until the end of the next day that is not a Saturday or Sunday).
Applicant did not file his first postconviction motion until August 6, 2007. Time for
purposes of § 2244(d) was not tolled from July 10, 2007, the day after his conviction
and sentence was final, until August 5, 2007, the day before he filed his first
postconviction motion, for a total of 27 days. The next period of time that is not tolled
under § 2244(d)--a total of 226 days--extends from October 2, 2007, the day after the
time ran for Applicant to file an appeal of the denial of his first postconviction motion,
see Colo. App. R. 4(b), until May 14, 2008, the day prior to when he filed his second
postconviction motion. Although the second postconviction motion was denied on June
2, 2008, and the time to appeal ran on July 27, 2008, Applicant filed a third
postconviction which remained pending in state court from June 24, 2008, until March

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28, 2011, when Applicant’s petition for certiorari review was denied. The time from
March 29, 2011, the day after the petition for certiorari review was denied, until
September 7, 2011, the date Applicant filed this action--a total of 163 days--also is not
tolled for the purposes of § 2244(d). Therefore, the total time not tolled is 416 days, and
the action is time-barred under § 2244(d).
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 Applicant 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, Applicant 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).
The magistrate judge directed Applicant to address equitable tolling in his Reply,

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but he failed to do so. Because Applicant does not state that he is actually innocent,
has been pursuing his claims diligently, or some extraordinary circumstance prevented
him from filing the instant action in a timely manner, the action will be dismissed as
barred by the one-year limitation period. Accordingly, it is
ORDERED that the Application is 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
Applicant 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
constitutional merit.
DATED at Denver, Colorado, this

22nd

day of

November

, 2011.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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