Boyce v. Clements et al

Filing 13

ORDER of Dismissal. ORDERED that the habeas corpus application is denied and the action is dismissed. FURTHER ORDERED that no certificate of appealability will issue. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. FURTHER ORDERED that any pending motions are denied as moot, by Judge Lewis T. Babcock on 5/11/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00082-BNB
TERRELE BOYCE,
Applicant,
v.
TOM CLEMENTS, Executive Director for Colorado Department of Corrections, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Terrele Boyce, is a prisoner in the custody of the Colorado Department
of Corrections who currently is incarcerated at the Crowley County Correctional Facility
in Olney Springs, Colorado. On January 12, 2012, Mr. Boyce filed pro se an application
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging the
validity of his conviction in Denver District Court Case No. 05CR2628. ECF No. 1 is an
example of the convention the Court will use throughout this order to identify the docket
number assigned to a specific paper by the Court's electronic case filing and
management system (CM/ECF). Mr. Boyce has paid the $5.00 filing fee in a habeas
corpus action.
On February 24, 2012, Magistrate Judge Boyd N. Boland directed 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 under 28
U.S.C. § 2254(b)(1)(A). On March 22, 2012, Respondents submitted their pre-answer

response (ECF No. 12). Mr. Boyce has not filed a reply to the pre-answer response,
although he was given the opportunity to do so.
The Court must construe Mr. Boyce’s filings 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 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 as barred by the one-year limitation period.
Mr. Boyce alleges that he was convicted by a jury in Denver District Court Case
No. 05CR2628 on charges of first-degree assault, and sentenced to twenty-four years in
prison plus five years of mandatory parole. On April 1, 2010, the Colorado Court of
Appeals affirmed his conviction on direct appeal. See ECF No. 12, ex. B (People v.
Boyce, No. 06CA0564 (Colo. Ct. App. Apr. 1, 2010)). On August 9, 2010, the Colorado
Supreme Court denied certiorari review.
On December 30, 2010, Mr. Boyce filed a postconviction motion for sentence
reconsideration pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure in
the trial court, which denied the motion without a hearing on January 7, 2011. See ECF
No. 1 at 4; see also ECF No. 12, ex. A at 4. Mr. Boyce did not appeal from the denial of
the motion. On January 12, 2012, Mr. Boyce filed the instant habeas corpus
application. He asserts three claims:
(1) The state court’s ruling denying his motion to
suppress evidence violated his right to be free from
unreasonable searches and seizures.
(2) The state court’s ruling limiting his crossexamination of the victim violated his right to confrontation.
2

(3) His right to due process was violated because the
evidence at trial was insufficient to disprove beyond a
reasonable doubt the affirmative defense of self-defense and
provocation, as required to secure a conviction under
Colorado law.
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).
3

In order to apply the one-year limitation period, the Court first must determine
when the judgment of conviction in Mr. Boyce’s criminal case became final. The
Colorado Supreme Court denied certiorari review in Mr. Boyce’s direct appeal of his
criminal conviction on August 9, 2010. Mr. Boyce did not seek a writ of certiorari from
the United States Supreme Court. As a result, his conviction became final ninety days
later, on Sunday, November 7, 2010, although the one-year limitation was continued
until the next business day, or Monday, November 8, 2010, when the time in which he
could have petitioned for 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). The one-year limitations period for purposes of §
2244(d) began to run on the next day, November 9, 2010, unless Mr. Boyce filed a state
postconviction motion that tolled the statute. See United States v. Hurst, 322 F.3d
1256, 1261-62 (10th Cir. 2003) (one-year limitations period commences the day after
expiration of the time for seeking review) .
The Court next must determine whether Mr. Boyce’s state court postconviction
motion tolled the one-year limitation period. Pursuant to § 2244(d)(2), a properly filed
state court postconviction motion tolls the one-year limitation period while the motion is
pending. The issue of whether a postconviction motion is pending is a matter of federal
law. Gibson v. Klinger, 232 F.3d 799, 806 (10th Cir. 2000). 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).

4

Furthermore, “regardless of whether a petitioner actually appeals a denial of a postconviction application, the limitations period is tolled during the period in which the
petitioner could have sought an appeal under state law.” Gibson, 232 F.3d at 804.
Here, the limitations period ran for 52 days from November 8, 2010, when Mr.
Boyce’s conviction became final, until December 30, 2010, when Mr. Boyce filed his
Colo. R. Crim. P. 35(b) postconviction motion, which the trial court denied on January 7,
2011. Mr. Boyce had 45 days from January 7, 2011, until February 21, 2011, to seek
an appeal under state law. See Gibson, 232 F.3d at 804, see also Colo. R. App. P.
4(b). He failed to do so. Mr. Boyce did not file any other postconviction motions in state
court.
On January 12, 2012, 325 days after Mr. Boyce’s deadline of February 21, 2011,
to appeal from the denial of his Colo. R. Crim. P. 35(b) motion, he filed his habeas
corpus application in this Court. Therefore, 377 (52 + 325) days elapsed by the time
Mr. Boyce initiated the instant action. As a result, the instant action was filed after the
one-year limitations period expired.
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 the 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). A showing of excusable
neglect is not sufficient to justify equitable tolling. See Gibson, 232 F.3d at 808.
Furthermore, in order to demonstrate he pursued his claims diligently, the habeas
5

corpus 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). Mr. Boyce bears the burden of demonstrating that equitable tolling is
appropriate in this action. See id.
Equitable tolling also may be appropriate if the applicant actually is innocent.
See Gibson, 232 F.3d at 808. An actual innocence argument “is premised on the same
fundamental miscarriage of justice exception that was discussed by the Supreme Court”
in Schlup v. Delo, 513 U.S. 298 (1995), and Coleman v. Thompson, 501 U.S. 722
(1991). Therefore, in the rare and extraordinary case in which a habeas applicant can
demonstrate equitable tolling is appropriate on actual innocence grounds, the applicant
is not required to demonstrate he diligently pursued the actual innocence claim. See
Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010). However, to be credible, a
claim of actual innocence requires an applicant “to support his allegations of
constitutional error with new reliable evidence--whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence--that was not
presented at trial.” Schlup, 513 U.S. at 324. The applicant then must demonstrate “that
it is more likely than not that no reasonable juror would have convicted him in the light of
the new evidence.” Id. at 327. The Court emphasizes that a “substantial claim that
constitutional error has caused the conviction of an innocent person is extremely rare.”
Id. at 324.

Mr. Boyce fails to assert any basis for equitable tolling. See ECF No. 1 at 14.
Therefore, under § 2244(d), Mr. Boyce is time-barred from filing a federal habeas
6

corpus action in this Court. Because the action clearly is time-barred, the Court will
refrain from addressing the issue of exhaustion of state court remedies.
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 Mr. Boyce files a notice of appeal he must also pay the full $455.00 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 because it is barred by the one-year limitation period in 28 U.S.C. § 2244(d).
It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 11th day of

May

, 2012.

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

7