Gardner v. Clements
ORDER of Dismissal. The Application is denied and the action is dismissed. No certificate of appealability will issue. Leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 4/12/12. (lswsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00364-BNB
TOM CLEMENTS, Executive Director, CDOC, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER OF DISMISSAL
Applicant, Jeremy Gardner, is currently serving a period of intensive supervision
parole in Missouri. Mr. Gardner initiated this action by filing on February 20, 2012, a pro
se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging
the validity of his convictions in Case No. 051CR4037 and Case No. 05CR5321 in the
District Court for the City and County of Denver. He has paid the $5.00 filing fee in a
habeas corpus action.
In an order entered on February 21, 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). Respondents submitted a Pre-Answer
Response on March 12, 2012. Mr. Gardner did not file a Reply.
The Court must construe liberally the Application filed by Mr. Gardner 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
On February 3, 2006, Mr. Gardner pled guilty to one count of theft in Case No.
05CR4037 and two counts of theft in Case No. 05CR5321. See Pre-Answer Resp. at
Ex. A, p. 7 (State Court Register of Actions). On June 23, 2006, the trial court
sentenced Mr. Gardner to six years on each count, to be served consecutively. Id. at 6.
Mr. Gardner did not file a direct appeal.
On December 9, 2008, Mr. Gardner filed a post-conviction motion pursuant to
Colorado Rule of Criminal Procedure 35(c). Id. The trial court denied the motion on
January 2, 2009. Id. at 5. Mr. Gardner filed an appeal, and the Colorado Court of
Appeals affirmed in part and reversed in part on March 4, 2010. See People v.
Gardner, No. 09CA0085 (Colo. App. Mar. 4, 2010) (unpublished opinion) (Pre-Answer
Resp. at Ex. G). The Colorado Supreme Court denied certiorari review, and the
mandate issued on March 31, 2011. Pre-Answer Resp. at Ex. I.
Mr. Gardner filed an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 in this Court on February 10, 2012. In the Application, Mr. Gardner
asserts two claims: (1) that his convictions for theft violate double jeopardy; and (2) that
the sentencing scheme for different levels of theft violates equal protection.
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
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
(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
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. Gardner’s criminal case became final.
The final sentence in Mr. Gardner’s case entered on June 23, 2006. Pre-Answer Resp.
at Ex. A, p. 6. Because Mr. Gardner did not file a direct appeal, the Court therefore
finds that his conviction became final on August 7, 2006, forty-five days after he was
sentenced. See Colo. App. R. 4(b); Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir.
2001). As such, the one-year statute of limitations would begin to run on August 8,
2006, the next business day after the conclusion of the time to appeal. See, e.g.,
Locke, 237 F.3d at 1273.
The Court must next determine whether any of Mr. Gardner’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
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 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.” Gibson, 232 F.3d at 804.
Here, there were no motions pending in Mr. Gardner’s state court case between
August 8, 2006, and December 9, 2008, the date Mr. Gardner filed his first postconviction motion. Accordingly, the limitation period began to run on August 8, 2006,
and ran un-tolled for 365 days until it expired on August 8, 2007. Because the one-year
limitation period expired before Mr. Gardner filed his first motion for post-conviction
relief on December 9, 2008, 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). Therefore, because
Mr. Gardner did not file his habeas corpus application in this Court until February 10,
2012, more than four 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. Gardner bears the burden of demonstrating that
equitable tolling is appropriate in this action. See id. at 977.
Mr. Gardner 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. Gardner 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 Mr. Gardner 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 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
DATED at Denver, Colorado, this
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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