Baker v. Clements et al

Filing 13

ORDER of Dismissal. The Application is denied and the action is dismissed. Leave to proceed in forma pauperis on appeal is denied. No certificate of appealability will issue, by Judge Lewis T. Babcock on 4/3/12. (lswsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00132-BNB
LEROY W. BAKER,
Applicant,
v.
TOM CLEMENTS, Director, Dept. of Corrections,
KEVIN MILYARD, Warden, Sterling Correctional Facility, and
JOHN SUTHERS, The Attorney General of the State of Colorado,
Respondents.

ORDER OF DISMISSAL

Applicant, Leroy W. Baker, is in the custody of the Colorado Department of
Corrections (DOC) and currently is incarcerated at the Sterling Correctional Facility in
Sterling, Colorado. Mr. Baker has filed a pro se Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 challenging the validity of his conviction in Case No.
97CR1281 in the El Paso County District Court. He has been granted leave to proceed
pursuant to 28 U.S.C. § 1915.
In an order entered on February 7, 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 February 28, 2012, Respondents
filed a Pre-Answer Response. Mr. Baker has not submitted a Reply.

The Court must construe liberally the Application filed by Mr. Baker 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.
I.

Background and State Court Proceedings
On December 10, 1997, a jury found Mr. Baker guilty of one count of possession

of a controlled substance with intent to distribute. Pre-Answer Resp. Ex. A at p. 19
(State Court Register of Actions). On March 19, 1999, after adjudicating Mr. Baker as a
habitual criminal, the trial court sentenced Mr. Baker to forty-eight years in the custody
of the Colorado Department of Corrections. Id. at 16. The prosecution later advised the
trial court that Mr. Baker’s sentence was illegal, and his sentence was amended to sixtyfour years. See People v. Baker, No. 00CA0375 (Colo. App. Oct. 31, 2002)
(unpublished opinion) (Pre-Answer Resp. at Ex. B).
Mr. Baker filed a direct appeal to the Colorado Court of Appeals. Id. at 12.
On October 31, 2002, the appellate court affirmed the district court’s judgment. See
Baker, No. 07CA0186 at 9.
On May 14, 2003, Mr. Baker filed a pro se motion for post-conviction relief, which
the trial court denied on June 2, 2003. See Pre-Answer Resp. at Ex. A, p. 9. Mr. Baker
did not file an appeal.

On July 1, 2004, Mr. Baker filed a pro se motion for post-conviction relief
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pursuant to Colorado Rule of Civil Procedure 35(c), which the trial court denied on July
21, 2004. See People v. Baker, No. 04CA1629 (Colo. App. July 20, 2006) (unpublished
opinion) (Pre-Answer Resp. at Ex. D). Mr. Baker filed an appeal, and the denial was
affirmed by the Colorado Court of Appeal on July 20, 2006. See id. Mr. Baker
petitioned for certiorari review, which was denied on February 5, 2007. See Pre-Answer
Resp. at Ex. E.
Mr. Baker filed a Petition for a Writ of Habeas Corpus in the state court on March
28, 2007. Pre-Answer Resp. at Ex. A, p. 7. Before the state court could rule on the
petition, Mr. Baker filed an appeal, which the Colorado Court of Appeals dismissed on
August 29, 2007, for lack of a final appealable order. See id. The trial court issued an
order denying the petition for a writ of habeas corpus on August 8, 2011. Id.
Mr. Baker then filed the instant action, which was received by the Court on
January 18, 2012. In the Application, Mr. Baker asserts four claims.
II.

Timeliness
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
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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).
In order to apply the one-year limitation period, the Court first must determine
when the judgment of conviction in Mr. Baker’s criminal case became final.
Because Mr. Baker filed a direct appeal, his conviction became final on December 16,
2002,1 forty-four days after the Colorado Court of Appeals affirmed his conviction on
October 31, 2002, and the last date on which Mr. Baker could have sought review in the
Colorado Supreme Court. See 28 U.S.C. § 2244(d)(1)(A); see also Colo. App. R. 52
(time to petition Colorado Supreme Court for certiorari review expires 30 days after
petition for rehearing could have been sought in the appellate court); Colo. App. R. 40
(petition for rehearing may be filed within 14 days after issuance of opinion). As such,
the one-year statute of limitations began to run on December 17, 2002, the next

1

The forty-fourth day after October 31, 2002, was December 14, 2002. However,
December 14, 2002, was a Saturday. Therefore, the filing deadline extended to December 16,
2002. See C.A.R. 26(a).

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business day after the conclusion of his direct appeal. See, e.g., Locke v. Saffle, 237
F.3d 1269, 1273 (10th Cir. 2003).
The Court must next determine whether any of Mr. Baker’s state court postconviction motions 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.
Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000).
The issue of whether a postconviction motion is pending is a matter of federal
law. See 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).
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.
Respondents assert that there were no pending motions in Mr. Baker’s state
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court action between December 16, 2002, and May 13, 2003. See Pre-Answer Resp. at
7; Ex. A, p. 9. However, in the July 20, 2006 Order issued by the Colorado Court of
Appeals, the appellate court stated that “[o]n August 30, 2004, a division of this court
issued an order to show cause why portions of defendant’s current appeal regarding the
final orders issued [by the trial court] on June 21, 2001, January 17, 2003, and June 2,
2003, should not be dismissed.” See People v. Baker, No. 04CA1629 (Colo. App. July
20, 2006) (unpublished opinion). This order appears to indicate that Mr. Baker filed a
post-conviction motion that was dismissed by the state court on January 17, 2003. This
post-conviction motion does not appear in the state court docket, and the Respondents
have not addressed the significance of this motion. Nonetheless, assuming that Mr.
Baker filed a post-conviction motion that was denied by the state court on January 17,
2003, he would have then had forty-five days, or until March 3, 2003, to file an appeal.
See Colo. App. R. 4(b). Mr. Baker did not file an appeal within this time frame.
Accordingly, the one-year statute of limitations would begin running on March 4, 2003.
There were no pending motions in Mr. Baker’s state court action between March
4, 2003, and May 13, 2003. See Pre-Answer Resp. at Ex. A, p. 9. These 71 days are
counted against the one-year statute of limitations. Mr. Baker filed a post-conviction
motion on May 14, 2003, that the state court denied on June 2, 2003. See id. Mr.
Baker then had forty-five days, or until July 17, 2003, to file an appeal. See Colo. App.

R. 4(b). Mr. Baker did not file an appeal. Therefore, the limitations period began
running again on July 18, 2003.
There were no pending motions in Mr. Baker’s state court action between July
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18, 2003, and July 1, 2004. Therefore, the limitations period began running on July 18,
2003, and ran for 294 days until it expired on May 7, 2004 (71 days + 294 days = 365
days). Because the one-year limitation period expired before Mr. Baker filed his next
motion for post-conviction relief on July 1, 2004, that motion, and any subsequent
motions, could not have tolled the one-year limitation period. See Clark v. Oklahoma,
468 F.3d 711, 714 (10th Cir. 2006) (stating that state court postconviction motions toll
the one-year limitation period only if they are filed within the one-year limitation period).
Because Mr. Baker did not file his habeas corpus application in this Court until January
18, 2012, more than seven years after the limitations period expired, the Court finds that
the action is untimely and must be dismissed.
The one-year limitation period in 28 U.S.C. § 2244(d) is not jurisdictional and
may be tolled for equitable reasons in appropriate extraordinary situations when
circumstances beyond a prisoner’s control make it impossible to file the habeas corpus
application on time. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). In addition,
equitable tolling may be appropriate if (1) the inmate is actually innocent; (2) an
adversary’s conduct or other uncontrollable circumstances prevents the inmate from
timely filing; or (3) the inmate actively pursues judicial remedies but files a defective
pleading within the statutory period. See Gibson, 232 F.3d at 808. Simple excusable
neglect, however, is not sufficient to support equitable tolling. See id. Furthermore,
equitable tolling is appropriate only if the inmate pursues his claims diligently. See

Miller, 141 F.3d at 978. Finally, Mr. Baker bears the burden of demonstrating that
equitable tolling is appropriate in this action. See id. at 977.
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Mr. Baker fails to assert any basis for equitable tolling. Therefore, under 28
U.S.C. § 2244(d), he is time-barred from filing a federal habeas corpus action in this
Court. Because the action clearly is time-barred, the Court will refrain from addressing
whether Mr. Baker has exhausted his 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 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 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 leave to proceed in forma pauperis on appeal is
denied. It is

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FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right.
DATED at Denver, Colorado, this 3rd

day of

April

, 2012.

BY THE COURT:

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

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