Sarvis v. Nan Scranton et al

Filing 26

ORDER of Dismissal. ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 is denied and this action is dismissed. FURTHER ORDERED that no certificate of appealability shall issue. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 1/23/13. (sgrim, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00759-BNB
RUSTY LEE SARVIS,
Applicant,
v.
ANGEL MEDINA, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Rusty Lee Sarvis, is a state prisoner in the custody of the Colorado
Department of Corrections currently incarcerated at the Fremont Correctional Facility in
Cañon City, Colorado. Applicant, acting pro se, filed an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 in which he challenges the validity of his
conviction and sentence in El Paso County District Court Case Nos. 07CR944 and
95CR1933.
On September 5, 2012, 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). Respondents submitted a Response on October 16, 2012, and
Applicant submitted a Reply on November 13, 2012.
The Court must construe liberally the Application and the Reply because

Applicant 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 does not “assume the role of advocate for the 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 in 28 U.S.C. § 2244(d).
Although Applicant has identified Colorado Criminal Case Nos. 07CR944 and
95CR1933 as the criminal proceedings that he is challenging in this action, he
specifically notes the judgment of conviction as April 5, 2007, and specifies in the three
claims that he raises that he is challenging the plea he entered into on April 5, 2007.
The Court, therefore, finds that Applicant is challenging the proceedings in Case No.
07CR944,
Applicant pled guilty to sexual exploitation of a child/sell/publish and was
sentenced on July 16, 2007, to four years to life to be served concurrently with his twoyear indeterminate sentence in Case No. 95CR1933. See Pre-Answer Resp., ECF No.
24-2 at 6. He did not file an direct appeal, but he did file a motion for reconsideration of
his sentence on October 24, 2007. Id. at 5. He did not appeal the denial of the motion
for reconsideration.
Respondents argue that this 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;
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(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 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).
Applicant’s conviction became final on August 30, 2007, when the time ran for
appealing the sentence entered on July 16, 2007. See Locke v. Saffle, 237 F.3d 1269,
1273 (10th Cir. 2001) (citing Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999).
Pursuant to Rule 4(b) of the Colorado Appellate Rules that was in effect at the time
Applicant was sentenced, he had forty-five days to file a notice of appeal after he was
sentenced. Accordingly, for purposes of § 2244(d), time began to run on August 31,
2007, the day after Applicant’s sentence became final.
The Court next must determine whether any of Applicant’s state 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. Applicant filed a motion for reconsideration of sentence on
October 4, 2007. Pre-Answer Resp., ECF No. 24-2, at 5. The trial court denied the
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motion on October 30, 2007. Id. Applicant did not appeal, but tolling for purposes of
§ 2244(d) continued until December 14, 2007, when the time expired to appeal the

order denying the motion for reconsideration. See Colo. App. R. 4(b). Applicant did not
file another postconviction motion until March 22, 2012.
The time for purposes of § 2244(d) was not tolled from August 31, 2007, the day
after his conviction and sentence were final, until October 23, 2007, the day prior to
when he filed his motion for reconsideration of sentence, which is a total of fifty-four
days. In addition, the time from December 15, 2007, the day after his motion for
reconsideration was final until March 21, 2012, the day prior to when Applicant filed his
second postconviction motion time, was not tolled. Therefore, the one-year time
limitation expired at least three years prior to the time Applicant filed the second motion
for reconsideration. Accordingly, unless equitable tolling applies, the Application is
time-barred.
“[T]he timeliness provision in the federal habeas corpus statute is subject to
equitable tolling.” Holland v. Florida, 130 S. Ct. 2549, 2554 (2010). “[A] petitioner is
entitled to equitable tolling only if he shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Id. at 2562 (internal quotation marks and citation omitted); accord Yang v.
Archuleta, 525 F.3d 925, 929 (10th Cir. 2008) (“ ‘Equitable tolling is a rare remedy to be
applied in unusual circumstances, not a cure-all for an entirely common state of
affairs.’ ”) (quoting Wallace v. Kato, 549 U.S. 384, 396 (2007)). The inmate must allege
with specificity the steps he took to pursue his federal claims. Yang, 525 F.3d at 930.
Finally, the inmate bears the burden of demonstrating that equitable tolling is
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appropriate. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
In addition, equitable tolling may be appropriate if the inmate is actually innocent
or if the inmate actively pursues judicial remedies but files a defective pleading within
the statutory period. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). “A
sufficiently supported claim of actual innocence creates an exception to procedural
barriers for bringing constitutional claims, regardless of whether the petitioner
demonstrated cause for the failure to bring these claims forward earlier.” Lopez v.
Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010).
In the Reply, Applicant asserts that the public defender did not advise him that he
could appeal the denial of the first motion for reconsideration of sentence and that he
also could appeal his case pursuant to Colo. R. Crim. P. 35(c). Applicant also asserts in
the Reply that the state court lacks jurisdiction to address his claims because he is
asserting violations of his constitutional rights under the Fourteenth and Fifth
Amendments.
First, it is well established that “ignorance of the law, even for an incarcerated pro
se [applicant], generally does not excuse prompt filing.” Marsh v. Soares, 223 F.3d
1217, 1220 (10th Cir. 2000) (internal quotation marks and citation omitted). Therefore,
Applicant’s lack of knowledge of his ability to appeal a motion for reconsideration or to
file a Rule 35(c) postconviction motion does not indicate he pursued his claims diligently
or that some extraordinary circumstance stood in his way preventing him from filing a
timely § 2254 action.
Furthermore, pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of
habeas corpus may not be granted unless it appears that the applicant has exhausted
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state remedies or that no adequate state remedies are available or effective to protect
the applicant’s rights. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v.
Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion
requirement is satisfied once the federal claim has been presented fairly to the state
courts. See Castille v. People, 489 U.S. 346, 351 (1989). Fair presentation requires
that the federal issue be presented properly “to the highest state court, either by direct
review of the conviction or in a postconviction attack.” Dever, 36 F.3d at 1534.
Furthermore, the “substance of a federal habeas corpus claim” must have been
presented to the state courts in order to satisfy the fair presentation requirement. Picard
v. Connor, 404 U.S. 270, 278 (1971); see also Nichols v. Sullivan, 867 F.2d 1250, 1252
(10th Cir. 1989). Although fair presentation does not require a habeas corpus petitioner
to cite “book and verse on the federal constitution,” Picard, 404 U.S. at 278 (internal
quotation marks omitted), “[i]t is not enough that all the facts necessary to support the
federal claim were before the state courts,” Anderson v. Harless, 459 U.S. 4, 6 (1982)
(per curiam). A claim must be presented as a federal constitutional claim in the state
court proceedings in order to be exhausted. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). Applicant’s jurisdiction claim, therefore, lacks merit and
does not provide a basis for equitable tolling. Because equitable tolling does not apply,
the Application is time-barred under 28 U.S.C. § 2244(d).
The action clearly is time-barred, and the Court need not address Respondents’
argument that Applicant’s claims are procedurally defaulted.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not taken in good faith, and, therefore, in forma pauperis status is denied
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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 Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 is denied and this 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
Applicant has failed to show that jurists of reason would find it debatable that the district
court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 23rd

day of

January

, 2013.

BY THE COURT:

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

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