Harrison v. Ploughe

Filing 30

ORDER on 1 Application for Writ of Habeas Corpus filed by John Timothy Harrison is DENIED. This case is dismissed with prejudice. By Judge Robert E. Blackburn on 7/8/15. (kfinn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Robert E. Blackburn

Civil Action No. 12-cv-02195-REB
JOHN TIMOTHY HARRISON,
Applicant,
v.
PAMELA PLOUGHE (Warden), and
THE ATTORNEY GENERAL FOR THE STATE OF COLORADO,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
Blackburn, J.

This matter is before me on the pro se Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (Application) [#1]1 filed August 17, 2012. The
respondents filed an answer [#24], and applicant filed a reply [#25 & #26].
Because the applicant is proceeding pro se, I have construed his pleadings and
other filings more liberally and held them to a less stringent standard than formal
pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). However, I cannot act and have not acted as an advocate
for a pro se litigant. See Hall, 935 F.2d at 1110. After reviewing the pertinent portions

1

[#1] is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.

of the record, including the state court record [#21], I conclude that the Application must
be denied.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question) and
28 U.S.C. § 2254 (habeas corpus, applicant in state custody).
II. BACKGROUND
The applicant, John Timothy Harrison, raises a single claim in his Application.
He claims changes in the relevant Colorado sentencing statutes increased the severity
of the parole component of his prison sentence after the date of the crime for which he
is serving a sentence. This change, he argues, violates the ban on ex post facto laws
stated in the Constitution of the United States. U.S. Const. art 1, § 10.
Mr. Harrison pleaded guilty in state court to sexual assault on a child by one in a
position of trust, a class three felony under Colorado law. His plea and conviction are
based on a sexual assault that occurred in December 2000. In May 2002, the state
court sentenced Mr. Harrison to eight years to life in the Colorado Department of
Corrections to be followed by an indeterminate period of parole. Mr. Harrison did not
file a direct appeal of his conviction or sentence.
Shortly before Mr. Harrison was sentenced, §17-2-201(5)(a.5), C.R.S., was
amended to add certain language. Mr. Harrison claims the parole component of his
sentence was made more severe as a result of the amendment of §17-2-201(5)(a.5) in
2002, an amendment which took effect after the date of the crime of conviction.
According to Mr. Harrison, the amendment caused his term of parole to change from a
determinate period of parole not to exceed the maximum sentence imposed by the

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court, under subsection (a.5), to an indeterminate period of parole under subsection
(a.7).
The respondents contend Mr. Harrison is not entitled to relief because his
Application is untimely. In addition, in the view of the respondents, §17-2-201(5)(a.7),
as that statute existed in 2000, properly controls the term of parole of Mr. Harrison.
Even before the 2002 amendment, subsection (a.5) was not applicable to Mr. Harrison,
the respondents assert. Rather, subsection (a.7) was always applicable to the crime of
Mr. Harrison. Given these circumstances, the respondents contend, there is no
violation of the Ex Post Facto Clause of article 1, § 10 of the Constitution.
III. TIMELINESS
Under the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), a
habeas claim is timely raised if the habeas application is filed within one year of the date
on which the challenged state judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). 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 the AEDPA period of limitation. § 2244(d)(2). This includes a motion for
reduction of sentence under the Colorado Rule of Criminal Procedure (Crim.P.) 35(b).
Robinson v. Golder, 443 F.3d 718, 720-21 (10th Cir. 2006). However, a
postconviction motion is not “properly filed,” and thus does not toll, if it does not comply
with the state’s “conditions to filing,” including the applicable statute of limitations. Pace
v. DiGuglielmo, 544 U.S. 408, 413 (2005).
Under Crim. P. 35(a), there is no time limit to file a motion to correct an illegal
sentence. Rule 35(b) permits a motion for reduction of sentence. Under Rule 35(b),
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such a motion must be filed within 126 days after the sentence was imposed or after a
relevant ruling by a state appellate court.2
On June 13, 2002, Mr. Harrison filed in the trial court a postconviction motion
to “Delete Mandatory Parole as Unconstitutional Pursuant to Crim. P. Rule 35(a).” PreAnswer Response [#14], Exhibit A (state court docket), p. 11. On September 13,
2002, Mr. Harrison filed with the trial court a postconviction motion for sentence
reconsideration under Rule 35(b). Id., p. 10. On October 10, 2002, the trial court
denied the Rule 35(a) motion. Id. On June 26, 2003, the trial court granted the Rule
35(b) motion after a hearing and reduced Mr. Harrison’s sentence from eight years to
life to four years to life. Id.; Transcript [#24-2], June 26, 2003 hearing. In 2004 and
2009, Mr. Harrison filed two additional motions under Rule 35(a), both of which were
denied by the trial court. Order [#17], p. 3 (summary of motions filed in state court).
The Colorado Court of Appeals affirmed the denial of the 2004 and 2009 Rule 35
motions. People v. Harrison, 165 P.3d 859, 860 (Colo. Ct. App. 2007) (Harrison I);
People v. Harrison, No. 09CA1670 (Colo. Ct. App. July 15, 2010) (unpublished)
(Harrison II) (copy at Pre-Answer Response [#14], Exhibit H [#14-8], p. 3 (CM/ECF p.
4)). On August 27, 2007, the Colorado Supreme Court denied certiorari review in
Harrison I. State Court Record, p. 250.3 On January 3, 2011, the Colorado Supreme
Court denied certiorari review in Harrison II. Pre-Answer Response [#14], Exhibit K.

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In 2002, Rule 35(b) motions were subject to a 120 day time limit. That time limit now has been
expanded to 126 days.
3

The state court record [#21] was provided to this court as PDF files contained in four separate
folders on a compact disc. When citing the state court record, I cite the 329 page document found on that
compact disc in the folder named “Court File Documents.” I cite this document by page number as State
Court Record, p. #.

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On May 6, 2011, Mr. Harrison filed another Crim. P. 35(a) postconviction motion.
State Court Record, pp. 271 - 274. The trial court largely denied this motion on June
23, 2011. State Court Record, p. 275. However, the trial court amended its mittimus to
read: “Parole shall be determined under the provisions of C.R.S. 18-1.3-1006[1][b],
requiring the parole board to impose an indeterminate term of at least 20 years and a
maximum of the remainder of the defendant’s natural life.” Id. This amendment of the
mittimus was based on a statement of the Colorado Court of Appeals in Harrison II. Id.
Mr. Harrison appealed the June 23, 2011, denial of his Rule 35(a) motion. Addressing
this appeal, the Colorado Court of Appeals found that the May 6, 2011, Rule 35(a)
motion and appeal of Mr. Harrison were “improper attempts to relitigate the issues
decided in Harrison I and Harrison II.” Harrison III, No. 11CA1410 (Colo. Ct. App.
Dec. 15, 2011) (unpublished) (copy at Pre-Answer Response [#14], Exhibit N [#14-14],
p. 3 (CM/ECF p. 4)).
In his reply [#25], Mr. Harrison relies on his May 6, 2011, Rule 35 motion as a
basis for showing that his Application in this case is timely. Reply [#25], pp. 2 - 4. Both
the Rule 35 motion and the appeal were declared by the Colorado Court of Appeals to
be improper attempts to re-litigate issues resolved in previous Rule 35 motions. Thus,
the May 6, 2011, Rule 35 motion on which Mr. Harrison relies was not properly filed and
may not be used as a basis to determine if the Application in this case was timely filed.
After the Pre-Answer Response [#14] was filed in this case, this court noted in
an order [#17] that the trial court register of actions contains an unclear reference to an
“Order re: Request for Reconsideration,” dated February 19, 2004. Order [#17], p. 5.
At the time this court entered its order [#17] addressing the Pre-Answer Response

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[#14], the court found it was not clear whether or how a motion for reconsideration in
state court, filed in 2004, might affect the issue of timeliness under § 2244(d)(1)(A).
With the benefit now of the complete state court record [#21], I find and conclude
that the present Application is not timely. The trial court found the Rule 35 motion filed
by Mr. Harrison in 2009 to be successive, and thus improper, because the motion
repeated arguments raised in previous motions. See Harrison II, (copy at Pre-Answer
Response [#14], Exhibit H [#14-8], p. 2 (CM/ECF p. 3)). In Harrison II, the Colorado
Court of Appeals noted initially that Mr. Harrison “has failed to comply with the
requirements of C.A.R. 28, and his brief is therefore subject to being stricken.” Id.
Given these holdings by the trial court and the court of appeals, I find and conclude that
the 2009 Rule 35 motion of Mr. Harrison was not properly filed in state court. Nothing in
the record shows that any later post-trial motion filed by Mr. Harrison was properly filed.
Further, nothing in the record indicates that any earlier motion, including the motion for
reconsideration referenced in the February 19, 2004, state court docket entry, remained
pending at the time the 2009 Rule 35 motion was resolved.
Even if the 2009 Rule 35 motion had been properly filed, the Application still
would not be timely. The 2009 Rule 35 motion was resolved as a final matter on
January 3, 2011, the date on which the Colorado Supreme Court denied certiorari in
Harrison II. This denial of certiorari constituted a final resolution of the 2009 Rule 35
motion. The Application in this case was filed on August 17, 2012, more than one year
after the final resolution of the 2009 Rule 35 motion on January 3, 2011. Any earlier
Rule 35 motion properly filed by Mr. Harrison was resolved well before January 3, 2011,
much more than one year before Mr. Harrison filed his Application. Thus, under 28
U.S.C. § 2244(d)(1)(A), the Application must be denied as untimely.
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IV. NO BASIS FOR RELIEF ON THE MERITS
Even if the Application of Mr. Harrison was filed in a timely fashion, he would not
be entitled to relief under § 2254. The record provides no support for his claim that his
sentence was made more onerous by an ex post facto law.
A. Standard of Review
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court,
unless the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
I review claims of legal error and mixed questions of law and fact under 28
U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The
threshold question under § 2254(d)(1) is whether applicant seeks to apply a rule of law
that was clearly established by the Supreme Court at the time his conviction became
final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). The review under
§ 2254(d) “is limited to the record that was before the state court that adjudicated the
prisoner’s claim on the merits.” Cullen v. Pinholster, ___ U.S. ___, ___, 131 S. Ct.
1388, 1398 (2011). Clearly established federal law “refers to the holdings, as opposed
to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court
decision.” Williams, 529 U.S. at 412.

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In this case, Mr. Harrison claims a violation of the ban on ex post facto laws in
the Constitution. U.S. Const. art 1, § 10. The Ex Post Facto Clause and the cases
applying it constitute law that was clearly established at the time of the conviction of Mr.
Harrison. If a clearly established rule of federal law is implicated, I must determine
whether the decision of the state court was contrary to or an unreasonable application
of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly established federal law if: (a)
“the state court applies a rule that contradicts the governing law set forth
in Supreme Court cases”; or (b) “the state court confronts a set of facts
that are materially indistinguishable from a decision of the Supreme Court
and nevertheless arrives at a result different from [that] precedent.”
Maynard [v. Boone], 468 F.3d [665,] 669 [(10th Cir. 2006)] (internal
quotation marks and brackets omitted) (quoting Williams, 529 U.S. at
405). “The word ‘contrary’ is commonly understood to mean ‘diametrically
different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’ ”
Williams, 529 U.S. at 405, 120 S.Ct. 1495 (citation omitted).
House v. Hatch, 527 F.3d 1010, 1018 (C.A.10 (10th Cir. 2008). My inquiry under the
“unreasonable application” clause is an objective one. See Williams, 529 U.S. at
409-10.
I review claims of factual errors under 28 U.S.C. § 2254(d)(2). See Romano v.
Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002). Section 2254(d)(2) allows a court
to grant a writ of habeas corpus only if the state court decision was based on an
unreasonable determination of the facts in light of the evidence presented. Pursuant to
§ 2254(e)(1), I must presume that the state court’s factual determinations are correct,
see Sumner v. Mata, 455 U.S. 591, 592-93 (1982), and Applicant bears the burden of
rebutting the presumption by clear and convincing evidence, see Houchin v. Zavaras,
107 F.3d 1465, 1470 (10th Cir. 1997). “The standard is demanding but not insatiable . .

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. [because] ‘[d]eference does not by definition preclude relief.’ ” Miller-El v. Dretke,
545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
B. Analysis
“One function of the Ex Post Facto Clause is to bar enactments which, by
retroactive operation, increase the punishment for a crime after its commission.”
Garner v. Jones, 529 U.S. 244, 249 (2000). When he was sentenced in 2002, Mr.
Harrison was not exposed to punishment under an ex post facto law. This is true
because he was sentenced properly to an indeterminate term of parole under
§17-2-201(5)(a.7), C.R.S., as that statute existed in December 2000, when Mr. Harrison
committed the offense for which he was sentenced.
A brief review of the relevant statutory provisions is necessary. “In 1998, the
Colorado General Assembly enacted the Lifetime Supervision of Sex Offenders Act”
(Lifetime Supervision Act). Vensor v. People, 151 P.3d 1274, 1276 (Colo. 2007).
Under the Lifetime Supervision Act, any sex offender sentenced to the department of
corrections must be sentenced to
an indeterminate term of at least the minimum of the presumptive range
specified in section 18–1.3–401 and a maximum of the sex offender's
natural life. § 18–1.3–1004(1)(a), C.R.S. (2006). On completion of the
minimum period of incarceration specified in the sex offender's
indeterminate sentence, less any credits earned by him, the Act assigns
discretion to the parole board to release him to an indeterminate term of
parole of at least ten years for a class four felony, or twenty years for a
class two or three felony, and a maximum of the remainder of the sex
offender's natural life. § 18–1.3–1006(1), C.R.S. (2006).
Vensor v. People, 151 P.3d 1274, 1276 (Colo. 2007) (footnotes omitted). Examining
the case of Mr. Harrison, the Colorado Court of Appeals held that the Lifetime
Supervision Act is applicable to Mr. Harrison and he is subject to mandatory

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indeterminate sentencing under the Lifetime Supervision Act. Harrison I, 165 P.3d at
860.
Mr. Harrison claims he was sentenced improperly to an indeterminate term of
parole under §17-2-201(5)(a.7) when, instead, he should have been sentenced under
subsection (a.5), to a term of parole not to exceed the maximum sentence imposed. At
the time of the offense for which Mr. Harrison was sentenced, §17-2-201(5)(a.5) and
(a.7), C.R.S. (2000) read as follows:
(a.5) As to any person sentenced for conviction of an offense involving
unlawful sexual behavior or for which the factual basis involved an offense
involving unlawful sexual behavior . . . committed on or after July 1, 1996,
the [parole] board . . . has full discretion to set the duration of the term of
parole granted, but in no event shall the term of parole exceed the
maximum sentence imposed upon the inmate by the court.
(a.7) As to any person sentenced for conviction of a sex offense pursuant
to the provisions of [the Lifetime Supervision Act], committed on or after
November 1, 1998, the [parole] board shall . . . set the duration of the term
of parole granted pursuant to the provisions of [the Lifetime Supervision
Act.]
Shortly before Mr. Harrison was sentenced in May 2002, but after the
commission of his offense, a bill was enacted adding to subsection (a.5) the language in
capital letters, shown below:
(a.5) EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH (a.7) OF
THIS SUBSECTION (5), as to any person sentenced for conviction of an
offense involving unlawful sexual behavior or for which the factual basis
involved an offense involving unlawful sexual behavior . . . committed on
or after July 1, 1996, BUT PRIOR TO JULY 1, 2002, the [parole] board . . .
has full discretion to set the duration of the term of parole granted, but in
no event shall the term of parole exceed the maximum sentence imposed
upon the inmate by the court.
Colo. Sess. L. 2002, p.125 (additions in capitals). According to Mr. Harrison, the new
“except as otherwise provided” clause in subsection (a.5), highlighted above, caused
the parole component of his sentence to be covered by subsection (a.7) rather than by
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subsection (a.5). This change, he contends, constitutes the imposition of an ex post
facto law because the change caused the imposition of an indeterminate term of parole
when, before the change, he was subject only to a determinate period of parole under
subsection (a.5).
Reviewing the Rule 35 motions of Mr. Harrison, the Colorado Court of Appeals
held that, given the nature of the offense of Mr. Harrison and the date of that offense,
December 2000, he was subject to an indeterminate term of parole under subsection
(a.7). See Harrison I, 165 P.3d at 859 - 860 (Harrison subject to mandatory
indeterminate sentencing under §18-1.3-1003(5), C.R.S., part of the Sex Offender
Lifetime Supervision Act); Harrison II, No. 09CA1670 (Colo. Ct. App. July 15, 2010)
(unpublished) (copy at Pre-Answer Response [#14], Exhibit H [#14-8], p. 6 (CM/ECF
p. 7)) (Harrison properly subject to indeterminate period of parole, applying §18-1.31006(1)(b) and 17-2-201(a.7), C.R.S.). In Harrison III, the court of appeals again
reviewed the contentions of Mr. Harrison and concluded:
As the division found in Harrison I, Harrison’s sexual assault on a
child conviction, with a date of offense of December 2000, was a
conviction of an offense covered by the [Lifetime Supervision] Act. As the
division concluded in Harrison II, Harrison is subject to the provisions of
section 17-2-201(5)(a.7), which applies to defendants, such as Harrison
here, who are sentenced under the [Lifetime Supervision] Act for crimes
occurring on or after November 1, 1998. See Harrison II; [People v.]
Tucker,194 P.3d [503,] 504 [(Colo. App.,2008)].
Thus, Harrison’s reference to section 17-2-201(5)(a.5) is misplaced,
because that statute is subject to the provisions of section
17-2-201(5)(a.7). Further, the court’s amended mittimus correctly reflects
the parole to which Harrison is subject upon his release. See
§ 18-1.3-1006(1)(b).
Harrison III, No. 11CA1410 (Colo. Ct. App. Dec. 15, 2011) (unpublished) (copy at PreAnswer Response [#14], Exhibit N [#14-14], p. 4 (CM/ECF p. 5)). This court is bound

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to accept the construction and application of Colorado statutes by the Colorado Court of
Appeals. Missouri v. Hunter, 459 U.S. 359, 368 (1983).
Stated directly, when he was sentenced for an offense committed in December
2000, Mr. Harrison was subject to the provisions of the Lifetime Supervision Act, which
was in effect at the time of his offense. Because he was subject to the provisions of the
Lifetime Supervision Act, Mr. Harrison was subject to the terms of
§17-2-201(5)(a.7), C.R.S., as that statute existed at the time of his offense, December
2000. As these laws existed at the time of the offense, the application of subsection
(a.7) was triggered by the sentence of Mr. Harrison under the provisions of the Lifetime
Supervision Act. The 2002 addition of the “except as otherwise provided” language to
subsection (a.5) did not make subsection (a.7) applicable to Mr. Harrison when
subsection (a.7) was not previously applicable to Mr. Harrison. Rather, subsection (a.7)
was applicable to Mr. Harrison at the time of his offense and independent of the 2002
amendment to subsection (a.5).
The 2002 amendment of subsection (a.5) had no effect on the proper sentence
imposed on Mr. Harrison. The 2002 amendment of subsection (a.5) did not, “by
retroactive operation, increase the punishment for a crime after its commission.”
Garner v. Jones, 529 U.S. 244, 249 (2000). Thus the imposition of a term of parole on
Mr. Harrison under subsection (a.7) did not violate the Ex Post Facto Clause. The
decisions of the state courts to impose and uphold this sentence are not decisions
which are contrary to or an unreasonable application of a clearly established rule of
federal law. Even if he had filed a timely application, which he did not, Mr. Harrison
would not entitled to habeas relief under § 2254.

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V. CONCLUSION, COA, AND IFP
Under 28 U.S.C. § 2244(d)(1)(A), the Application of Mr. Harrison must be denied
on both procedural and substantive grounds. Procedurally, the Application is untimely.
Substantively, Mr. Harrison is not entitled to habeas relief under § 2254 because his
sentence does not violate the Ex Post Facto Clause. Thus, he is not entitled to relief
under § 2254.
Under Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts, I must issue or deny a certificate of appealability when entering a
final order adverse to the applicant. Under 28 U.S.C. § 2253(c)(2), I may issue a
certificate of appealability “only if the applicant has made a substantial showing of the
denial of a constitutional right.” Such a showing is made only when a prisoner
demonstrates that jurists of reason would find it debatable that a constitutional violation
occurred, and that the district court erred in its resolution. Mr. Harrison has not made a
substantial showing of the denial of a constitutional right. Therefore, a certificate of
appealability is denied.
Under 28 U.S.C. § 1915(a)(3), I certify that any appeal from this order would not
be taken in good faith. 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.
Harrison files a notice of appeal, he also must pay the full 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.
VI. ORDERS
THEREFORE, IT IS ORDERED as follows:

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1. That the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2254 (Application) [#1] filed August 17, 2012, is denied;
2. That this case is dismissed with prejudice;
3. That a certificate of appealability shall not issue under 28 U.S.C. § 2253(c);
and
4. That leave to proceed on appeal in forma pauperis is denied without prejudice
to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the
United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, July 8, 2015.
BY THE COURT:

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