Chavez v. Trani et al

Filing 21

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 1/3/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01039-BNB
RUDOLPH MARTIN CHAVEZ,
Applicant,
v.
WARDEN TRAVIS TRANI, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Rudolph Martin Chavez, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the Centennial
Correctional Facility in Cañon City, Colorado. On April 18, 2012, Mr. Chavez 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 El Paso County District Court Case No.
02CR2009. 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. Chavez has paid the
$5.00 filing fee in a habeas corpus action.
On April 29, 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 June 11, 2012, after being granted an extension of time,

Respondents submitted their pre-answer response (ECF No. 13). On June 28, 2012,
Mr. Chavez filed a reply (ECF No. 14) to the pre-answer response in combination with
two motions. On July 19, 2012, Magistrate Judge Boyd N. Boland directed
Respondents to file an amended pre-answer response that cured deficiencies in the
pre-answer response. On August 13, 2012, after being granted an extension of time,
Respondents submitted their amended pre-answer response (ECF No. 19).
The Court must construe Mr. Chavez’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. Chavez was convicted by a jury on January 24, 2003, in El Paso County
District Court Case No. 02CR2009 on two counts of aggravated robbery, two counts of
theft, and seven counts of menacing. ECF No. 19 (amended pre-answer response), ex.
B (answer brief) at 5. On March 31, 2003, the trial court sentenced Mr. Chavez to
consecutive fifteen-year sentences in the DOC for each of the two robberies, the
remaining sentences to be served concurrently. Id.
On August 4, 2005, the Colorado Court of Appeals affirmed his convictions on
direct appeal. ECF No. 19, ex. D (People v. Chavez, No. 03CA1341 (Colo. Ct. App.
Aug. 4, 2005) (unpublished)). On November 28, 2005, the Colorado Supreme Court
denied certiorari review. ECF No. 19, ex. F.
On April 3, 2006, Mr. Chavez filed a motion for sentence reconsideration
pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure with the trial court.
2

ECF No. 19, ex. U (state court register of actions) at 20. On May 19, 2006, he sent a
letter to the trial court requesting the appointment of counsel. Id. The trial court treated
the letter as a motion for postconviction relief pursuant to Colo. R. Crim. P. 35(c) and
mailed a form for Mr. Chavez’s use in preparing a proper motion. Id. On August 4,
2006, Mr. Chavez filed a postconviction motion pursuant to Colo. R. Crim. P. 35(c)
claiming ineffective assistance of counsel. Id.; see also ECF No. 19, ex. J at 19-20. On
March 13, 2007, the trial court denied the Rule 35(c) motion. ECF No. 19, ex. U at 20;
see also ECF No. 19, ex. J at 19-20. On March 29, 2007, the trial court denied the
motion for sentence reconsideration pursuant to Colo. R. Crim. P. 35(b). ECF No. 19,
ex. U at 19-20.
In April 2007, Mr. Chavez appealed from the denial of his postconviction motions,
ECF No. 19, ex. U at 19, but limited his appellate challenge to the denial of his Colo. R.
Crim. P. 35(c) motion. See ECF No. 19, ex. H (opening appeal brief in No. 07CA755).
On August 28, 2008, the Colorado Court of Appeals affirmed. ECF No. 19, ex. K
(People v. Chavez, No. 07CA0755 (Colo. Ct. App. Aug. 28, 2008) (not published)). On
December 2, 2008, the Colorado Supreme Court denied certiorari review. ECF No. 19,
ex. M.
On June 25, 2009, Mr. Chavez filed a second Colo. R. Crim. P. 35(c)
postconviction motion. ECF No. 19, ex. U at 18. On the same day, he also filed a
motion asserting justifiable excuse or excusable neglect for the late filing of the
postconviction motion and a motion for recusal of the trial judge from consideration of
the postconviction motion. Id. On July 2, 2009, the trial court issued an order denying
the three motions and specifically denying the postconviction motion as time-barred.
3

ECF No. 19, ex. T. On appeal, the Colorado Court of Appeals affirmed the denial of the
postconviction motion as time-barred, further noting that the motion was successive.
ECF No. 19, ex. P (People v. Chavez, No. 09CA1562 (Colo. Ct. App. Dec. 16, 2010)
(not published)). Certiorari review was denied on March 28, 2011. ECF No. 19, ex. R.
On April 18, 2012, Mr. Chavez filed the instant habeas corpus application. He asserts
three claims:
(1) That his right to confrontation was violated when, during
the cross-examination of witness, Ann Marie Easley, the trial
court sustained an objection by Ms. Easley’s counsel when
Mr. Chavez’s counsel questioned Ms. Easley about pending
charges against her. He contends that the court improperly
held the witness’s interest in a pending proceeding to be
paramount to his right to confrontation. He also contends
the trial court improperly sustained an objection from a
nonparty when the prosecutor could have made the
objection, the witness could have invoked her Fifth
Amendment right, or her counsel could have sought
immunity for the witness from the prosecution.
(2) That his rights to effective assistance of counsel, equal
protection, and due process were violated because his
counsel was gravely ill with cancer and undergoing medical
treatment and medication at the time of trial. Consequently,
counsel’s representation was inconsistent with the required
standards of care. Further, although counsel was going to,
she failed to file a motion for a DNA test of evidence used to
convict him.
(3) His rights to due process and equal protection were
violated because defense counsel failed to obtain DNA
testing of a hat and shirt abandoned by the perpetrator of the
crime at one of the crime scenes because such DNA
evidence would have exonerated him.
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
4

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).
In order to apply the one-year limitation period, the Court first must determine
when the judgment of conviction in Mr. Chavez’s criminal case became final. The
Colorado Supreme Court denied certiorari review in Mr. Chavez’s direct appeal of his
criminal conviction on November 28, 2005. Mr. Chavez did not seek a writ of certiorari
from the United States Supreme Court. As a result, his conviction became final ninety

5

days later, on February 26, 2006, although the one-year limitation was continued until
the next business day, or Monday, February 27, 2006, 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, February 28, 2006, unless Mr. Chavez 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. Chavez’s state court postconviction
motions 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).
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 34 days from February 28, 2006, when Mr.
Chavez’s conviction became final, until April 3, 2006, when Mr. Chavez filed his Colo. R.
Crim. P. 35(b) motion, which the trial court denied on March 29, 2007. During the time
6

the Colo. R. Crim. P. 35(b) motion was pending, Mr. Chavez’s first Colo. R. Crim. P.
35(c) motion was pending, as well. A total of 205 days elapsed from December 2,
2008, when the state supreme court denied certiorari review of the Colo. R. Crim. P.
35(b) and (c) postconviction motions, until June 25, 2009, when Mr. Chavez filed his
second Colo. R. Crim. P. 35(c) motion.
However, it appears that the second Colo. R. Crim. P. 35(c) motion did not toll
the limitations period because it was not a “properly filed” application for state
postconviction or other collateral review. 28 U.S.C. § 2244(d)(2). As previously stated,
the trial court found, and the Colorado Supreme Court agreed, that Mr. Chavez’s
second Rule 35(c) motion was time-barred. ECF No. 19, ex. T at 2-3; ex. P at 3-5.
An application for postconviction 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 second Colo.
R. Crim. P. 35(c) motion could not have tolled the one-year limitation period under §
2244(d)(2) because that motion was untimely. See id.; see also Sandles v. Denver
Downtown Correctional Facility, No. 10-cv-01386-BNB, 2010 WL 3730346, at *4 (D.
Colo. Sept. 16, 2010) (not published) (citing Habteselassie for the proposition that an
7

untimely postconviction motion will not toll the one-year limitation period). As a result,
1,233 days elapsed between December 2, 2008, when the state supreme court denied
certiorari review of the Colo. R. Crim. P. 35(b) and (c) motions, and April 18, 2012,
when Mr. Chavez filed the instant application with this Court. The second Colo. R.
Crim. P. 35(c) motion Mr. Chavez filed on June 25, 2009, whose dismissal the Colorado
Court of Appeals affirmed on December 16, 2010, failed to toll the one-year limitations
period because it was not properly filed. Therefore, 1,472 (34 + 205 + 1,233) days
elapsed by the time Mr. Chavez 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
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. Chavez 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
8

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.
In the reply, Mr. Chavez contends he is actually innocent. In support of this
contention, he claims to submit new evidence in the form of documents contained in an
attached exhibit B. ECF No. 14 at 10. The documents are a motion titled “Defendant’s
Motion to Dismiss for People’s Violation of Discovery Rules and Abridgement of His
Sixth Amendment Right to Counsel” with attachments filed on November 27, 2002, in
Mr. Chavez’s state criminal case, id. at 22-28, and part of a motion titled “Discovery
Motion,” filed on August 28, 2002, also in Mr. Chavez’s criminal case. Id. at 29-31.
Clearly these documents are not new evidence, but rather recycled motions from No.
02CR2009, Mr. Chavez’s state criminal case. Such motions do not provide “new
9

reliable evidence . . . that was not presented at trial.” Schlup, 513 U.S. at 324. As a
result, Mr. Chavez fails to assert any basis for equitable tolling. Therefore, under §
2244(d), Mr. Chavez 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
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. Chavez 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

10

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 3rd day of

January

, 2013.

BY THE COURT:

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

11