Hall v. Clements et al

Filing 17

ORDER of Dismissal. ORDERED that the habeas corpus application 1 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. F URTHER ORDERED that the "Application-Motion to Vacate, Set Aside, or Correct His Sentence and Conviction Under 28 U.S.C.A. § 2254" 11 , the Prisoners Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 13 , and the motion for appointment of counsel 14 are DENIED, by Judge Lewis T. Babcock on 4/27/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00341-BNB
JAMES W. HALL,
Applicant,
v.
TOM CLEMENTS, and
JOHN W. SUTHERS, Attorney General of the State of Colorado,
Respondents.

ORDER OF DISMISSAL

Applicant, James W. Hall, is a prisoner in the custody of the Colorado
Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr.
Hall has 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
number 00CR2187.
On February 14, 2012, 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. On March 20, 2012, Respondents filed their Pre-Answer
Response (ECF No. 10). On April 23, 2012, Mr. Hall filed a reply (ECF No. 12) to the
Pre-Answer Response and an “Application-Motion to Vacate, Set Aside, or Correct His
Sentence and Conviction Under 28 U.S.C.A. § 2254” (ECF No. 11). On April 25, 2012,

Mr. Hall filed Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
§ 1915 (ECF No. 13) and a motion for appointment of counsel (ECF No. 14).
The Court must construe the application and other papers filed by Mr. Hall
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 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 as untimely.
Mr. Hall was convicted by a jury of first degree murder after deliberation and he
was sentenced to life in prison without the possibility of parole. The judgment of
conviction was affirmed on direct appeal. See People v. Hall, No. 02CA1351 (Colo.
App. Aug. 5, 2004) (unpublished) (ECF No. 10-3). On January 24, 2005, the Colorado
Supreme Court denied Mr. Hall’s petition for writ of certiorari on direct appeal. (See
ECF No. 1 at 9 of 31.)
On June 20, 2007, Mr. Hall filed in the trial court a postconviction motion
pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 101 at 5 of 13.) On September 6, 2007, the trial court denied the Rule 35(c) motion (see
id.), but Mr. Hall did not appeal.
On January 24, 2011, Mr. Hall filed in the trial court a postconviction motion
pursuant to Rule 35(a) of the Colorado Rules of Criminal Procedure challenging the trial
court’s subject matter jurisdiction. (See id.) On February 4, 2011, the trial court denied
the Rule 35(a) motion. (See id.) On February 25, 2011, Mr. Hall filed in the trial court
another postconviction motion challenging that court’s subject matter jurisdiction. (See
id.) That motion was denied on March 11, 2011. (See id.) The trial court’s order
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denying the Rule 35(a) motion was affirmed on appeal. See People v. Hall, No.
11CA0736 (Colo. App. Nov. 3, 2011) (unpublished) (ECF No. 10-5).
Mr. Hall commenced this action on February 9, 2012. He asserts one claim for
relief arguing that his federal constitutional rights were violated because he was not
charged in his criminal case by grand jury indictment. According to Mr. Hall, the
absence of a grand jury indictment deprived the trial court of subject matter jurisdiction.
Respondents first assert that the instant action is barred by the one-year
limitation period in 28 U.S.C. § 2244(d). That statute 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
3

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). Although Mr. Hall has filed a reply to the Pre-Answer Response,
he does not address Respondents’ arguments regarding the timeliness of the
application under § 2244(d).
In order to apply the one-year limitation period, the Court first must determine the
date on which Mr. Hall’s conviction became final. See 28 U.S.C. § 2244(d)(1)(A). In
general, a conviction becomes final following a decision by the state court of last resort
on direct appeal when the United States Supreme Court denies review, or, if no petition
for writ of certiorari is filed, when the time for seeking such review expires. See Locke
v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Pursuant to Rule 13.1 of the Rules of
the Supreme Court of the United States, Mr. Hall had ninety days to seek review in the
United States Supreme Court after the Colorado Supreme Court denied his petition for
writ of certiorari on direct appeal on January 24, 2005, but he did not do so. Therefore,
the Court finds that Mr. Hall’s conviction became final on April 25, 2005, when the time
for filing a petition for writ of certiorari in the United States Supreme Court expired.1
The Court also finds that the one-year limitation period began to run on April 25,
2005, because Mr. Hall does not allege that he was prevented by unconstitutional state
action from filing this action sooner, he is not asserting any constitutional rights newly
recognized by the Supreme Court and made retroactively applicable to cases on
collateral review, and he knew or could have discovered the factual predicate for his

1

The ninetieth day after January 24, 2005, was Sunday, April 24, 2005. Therefore, the filing
period extended until Monday, April 25, 2005. See Sup. Ct. R. 30.1.

4

claim before his conviction became final in April 2005. See 28 U.S.C. § 2244(d)(1)(B) (D).
The next question the Court must answer is whether the one-year limitation
period was tolled for any period of time. Pursuant to 28 U.S.C. § 2244(d)(2), a properly
filed state court postconviction motion tolls the one-year limitation period while the
motion is pending. An application for postconviction review is properly filed within 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).
These 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 state court postconviction motion is pending for the
purposes of § 2244(d)(2) is a matter of federal law, but “does require some inquiry into
relevant state procedural laws.” 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 post-conviction application, the limitations period is tolled
during the period in which the petitioner could have sought an appeal under state law.”
5

Gibson, 232 F.3d at 804.
Mr. Hall did not file any state court postconviction motions within twelve months
after the one-year limitation period began to run on April 25, 2005. As a result, the oneyear limitation period ran uninterrupted until it expired on April 25, 2006, and the state
court postconviction motions Mr. Hall subsequently filed in June 2007 and January 2011
did not toll the one-year limitation period. See Clark v. Oklahoma, 468 F.3d 711, 714
(10th Cir. 2006) (stating that properly filed state court postconviction motions toll the oneyear limitation period only if they are filed within the one-year limitation period).
Therefore, the instant action is barred by the one-year limitation period in the absence
of some other reason to toll the one-year limitation period.
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 petitioner 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 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).
Equitable tolling also may be appropriate if the petitioner 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”
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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 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. See
Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010). However, to be credible, a
claim of actual innocence requires a petitioner “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 petitioner 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. Hall fails to demonstrate or even argue that the one-year limitation period
should be tolled for equitable reasons and the Court finds no basis for equitable tolling
in this action. As a result, the Court finds that this action is barred by the one-year
limitation period and the action will be dismissed for that reason. Because the Court
has determined that the entire action is time-barred, the Court need not address
Respondents’ alternative arguments Mr. Hall’s claim also is unexhausted. Mr. Hall’s
motion for appointment of counsel and the other pending motions will be denied
because the action clearly is time-barred and will be dismissed for that reason.
Furthermore, 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
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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 also must 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 (ECF No. 1) 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 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

8

FURTHER ORDERED that the “Application-Motion to Vacate, Set Aside, or
Correct His Sentence and Conviction Under 28 U.S.C.A. § 2254” (ECF No. 11), the
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
(ECF No. 13), and the motion for appointment of counsel (ECF No. 14) are DENIED.

DATED at Denver, Colorado, this 27th

day of

April

, 2012.

BY THE COURT:

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

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