Flowers v. Slone et al

Filing 12

ORDER of Dismissal. The habeas corpus application is denied and the action is dismissed. No certificate of appealability shall issue. Leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 2/2/12. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02940-BNB
JACKIE L. FLOWERS,
Applicant,
v.
BRIGHAM SLONE, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Jackie L. Flowers, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) and is currently incarcerated at the Bent County
Correctional Facility in Las Animas, Colorado. Mr. Flowers has filed an Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. He challenges the validity of his
convictions and sentences imposed in Jefferson County District Court Case No. 02cr56.
Mr. Flowers has paid the $5.00 filing fee.
In a December 12, 2011 Order, Magistrate Judge Boyd N. Boland directed
Respondents to file a pre-answer response addressing the affirmative defenses of
timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28
U.S.C. § 2254(b)(1)(A). On December 30, 2011, Respondents submitted a pre-answer
response. Mr. Flowers filed a reply on January 13, 2012.

The Court must construe liberally the Application filed by Mr. Flowers 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 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 Application as time-barred.
I. Background and State Court Proceedings
Mr. Flowers was convicted by a jury of distribution of cocaine, conspiracy to
distribute cocaine, and possession of cocaine in Jefferson County District Court Case
No. 02cr56. The state trial court then adjudicated Applicant a habitual criminal. On
May 14, 2003, Mr. Flowers was sentenced to an aggregate prison term of thirty-two
years in the DOC. (Pre-Answer Resp., Ex. F at 2).
Applicant’s convictions were affirmed on direct appeal in People v. Flowers, 128
P.3d 285 (Colo. App. 2005). Mr. Flowers filed a petition for certiorari review with the
Colorado Supreme Court, which was denied on February 6, 2006. (Pre-Answer Resp.,
Ex. D).
Mr. Flowers filed pro se a motion for post-conviction relief pursuant to Colo. Crim.
P. Rule 35(c) on October 14, 2008. (Id., Ex. F, at 1). The trial court denied the motion
on October 21, 2008. (Id.) The Colorado Court of Appeals affirmed the trial court’s
order in People v. Flowers, No. 08CA2575 (Colo. App. Dec. 16, 2010) (unpublished).
(Pre-Answer Resp. Ex. E). The Colorado Supreme Court denied Applicant’s request
for certiorari review on August 15, 2011. (Id., Ex. F, at 1).

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Mr. Flowers initiated this action on November 10, 2011. He asserts four claims
for relief in his § 2254 Application. Respondents argue that the Application is barred by
the one-year limitation period in 28 U.S.C. § 2244(d). Respondents further contend that
Mr. Flowers failed to exhaust state remedies for his first and part of his third claim, and
that his second claim is not cognizable in this § 2254 proceeding. Respondents also
maintain that the unexhausted claims are procedurally barred from federal habeas
review.
I!. AEDPA Time Bar
Respondents argue that the Application is action is untimely under the one-year
limitation period set forth in 28 U.S.C. § 2244(d)(1). 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.
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(2) The time during which a properly filed application for State postconviction 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).
Mr. Flowers’ conviction became final on May 7, 2006, ninety days after the
Colorado Supreme Court denied his petition for certiorari review on direct appeal, when
the time for seeking review in the United States Supreme Court expired. See Sup.Ct.
R. 13(1); Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012); Locke v. Saffle, 237 F.3d
1269, 1273 (10th Cir. 2001). Accordingly, the statute began to run on May 8, 2006.
See United States v. Hurst, 322 F.3d 1256, 1261-62 (10th Cir. 2003) (one-year
limitation period commences the day after expiration of the time for seeking review).
The Court must next determine whether Mr. Flowers filed any state postconviction motion that tolled the one-year limitation period. Pursuant to 28 U.S.C.
§ 2244(d)(2), a properly filed state court post-conviction motion tolls the one-year
limitation period while the motion is pending. An application for post-conviction review is
properly filed with the meaning of § 2244(d)(2) “when its delivery and acceptance are in
compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531
U.S. 4, 8 (2000). The requirements include:
(1) the place and time of filing; (2) the payment or waiver of any required
filing fees; (3) the obtaining of any necessary judicial authorizations that
are conditions precedent to filing, such as satisfying any filing
preconditions that may have been imposed on an abusive filer; and (4)
other conditions precedent that the state may impose upon the filing of a
post-conviction motion.

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Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000).
The issue of whether a post-conviction motion is pending is a matter of federal
law. See Gibson, 232 F.3d at 806. The term “pending” includes “all of the time during
which a state prisoner is attempting, through proper use of state court procedures, to
exhaust state court remedies with regard to a particular post-conviction application.”
Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999).
Mr. Flowers did not file a state post-conviction motion until October 14, 2008,
more than two years after the one-year limitation period expired. Post-conviction
motions filed after passage of the limitations period are not relevant to the timeliness of
a petitioner’s federal application. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir.
2004) (“Only state petitions for post-conviction relief filed within the one year allowed by
AEDPA will toll the statute of limitations.”); Fisher v. Gibson, 262 F.3d 1135, 1142–43
(10th Cir. 2001). Accordingly, Mr. Flowers’ Application is time-barred unless equitable
tolling applies.
III. Equitable Tolling
The one-year limitation period in 28 U.S.C. § 2244(d) is not jurisdictional and
may be tolled for equitable reasons “in rare and exceptional circumstances.” Gibson,
232 F.3d at 808 (internal quotation marks omitted); see also Miller v. Marr, 141 F.3d
976, 978 (10th Cir. 1998). Equitable tolling may be appropriate if (1) the petitioner is
actually innocent; (2) an adversary’s conduct or other extraordinary circumstance
prevents the petitioner from timely filing; or (3) the petitioner actively pursues judicial

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remedies but files a defective pleading within the statutory period. See Holland v.
Florida, 130 S.Ct. 2549, 2562 (2010); Gibson, 232 F.3d at 808. Simple excusable
neglect is not sufficient to support equitable tolling. Gibson, 232 F.3d at 808.
Furthermore, equitable tolling is appropriate only if the petitioner pursues his claims
diligently. Miller, 141 F.3d at 978. The petitioner 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)). Mr. Flowers bears the burden of
demonstrating that equitable tolling is appropriate in this action. See id.
Mr. Flowers argues in his Reply that he is entitled to equitable tolling because he
was “misled” by counsel, which prevented him from filing his federal Application within
the one-year period. (Reply, at 5). Specifically, he alleges that his court-appointed
counsel on direct appeal failed to advise him that his federal Application was subject to
a statutory one-year limitation period, and, therefore, that he should promptly file his
state post-conviction motion once his direct appeal concluded. (Id. at 4-5). Mr. Flowers
further alleges that his access to the prison library during the relevant time period was
“poor and inconvenient.” (Id. at 5). And, finally, Applicant argues that his pro se status
should excuse his untimely filing. (Id.)
Mr. Flowers fails to demonstrate that extraordinary circumstances prevented him
from filing his § 2254 Application within the one-year limitations period. Although
Applicant asserts that he was “misled” by his direct appeal counsel, the letters that he
attaches to support this claim demonstrate otherwise. Mr. Flowers’ direct appeal

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counsel advised him in writing in January 2004 that if he wished to raise a claim of
ineffective assistance of trial counsel, he must present the claim to the trial court in a
Colo. Crim. P. Rule 35(c) motion after his direct appeal was concluded. (January 21,
2004 letter from Marcia Wade to Jackie Flowers, attached to Reply). Counsel further
advised Mr. Flowers that “[y]ou can seek habeas relief in federal court after your direct
appeal and your post-conviction challenges (i.e., Rule 35 motions) are completed in
state court . . . .” (Id.) In a May 9, 2006 letter to the Colorado Supreme Court Attorney
Regulation Counsel, Ms. Wade explained that she informed Mr. Flowers that once his
direct appeal was concluded, she would no longer represent him and that she was not
authorized under her ADC appointment to represent him in a collateral attack on his
conviction. (May 9, 2006 letter from Marcia Wade to Colorado Supreme Court, attached
to Reply). A copy of the May 9, 2006 letter was sent to Mr. Flowers. (Id.)
Mr. Flowers does not deny knowledge of the statements made by Ms. Wade in
her letters. Ms. Wade did not represent Mr. Flowers in his state post-conviction
proceeding, nor did she mislead him into believing that she would so represent him or
that she would represent him in a federal habeas proceeding. Furthermore, Mr. Flowers
does not allege any specific facts to show that he was actively misled by his attorney
about the statutory limitations period applicable to his federal Application. Direct appeal
counsel was under no obligation to advise Mr. Flowers regarding the federal statutory
requirement. Even if counsel arguably should have advised Mr. Flowers about the
AEDPA one-year limitation period, Mr. Flowers did not act diligently in pursuing his

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federal rights. In particular, Mr. Flowers fails to explain why he waited two years to file
his state post-conviction motion after his direct appeal concluded when he knew that his
direct appeal counsel was not going to represent him in a state post-conviction
proceeding. Mr. Flowers’ pro se status and ignorance of his legal obligation to file a
timely § 2254 Application do not justify equitable tolling. See Marsh v. Soares, 223 F.3d
1217, 1220 (10th Cir. 2000).
Finally, Mr. Flowers’ assertions that his access to the prison law library was “poor
and inconvenient” are vague and fail to establish that he was prevented by
circumstances beyond his control from filing his § 2254 Application within the one-year
deadline. See Miller, 141 at 978 (dismissing petitioner's equitable-tolling claim because
he “provided no specificity regarding the alleged lack of access and the steps he took to
diligently pursue his federal claims”). Instead, Mr. Flowers’ allegations demonstrate that
he failed to act with reasonable diligence to pursue his federal remedy, and, therefore,
he is ineligible for equitable tolling.
IV. Conclusion
Having reviewed Mr. Flowers’ allegations, the Court finds that he has failed to
assert any basis for equitable tolling. Therefore, under 28 U.S.C. § 2244(d), he is timebarred from filing a federal habeas corpus action in this Court. Because the Application
is clearly untimely, the Court need not reach Respondents’ arguments that Mr. Flowers’
second claim is not cognizable in this § 2254 proceeding and that claim one and part of
claim three are barred under the procedural default doctrine.

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Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Applicant files a notice of appeal he must also pay the full $455 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the habeas corpus 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 Mr.
Flowers 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. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 2nd

day of

February

, 2012.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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