Hodge v. Miller et al

Filing 27

ORDER to Dismiss in Part and for Answer re: 1 Application for Writ of Habeas Corpus filed by Blanch C. Hodge, Jr. For the reasons discussed above, it is ORDERED that claim one of the § 2254 Application is DISMISSED as barred by the one-y ear limitation period in 28 U.S.C. § 2244(d). It is FURTHER ORDERED that claim three of the § 2254 Application is DISMISSED because it fails to present a federal issue cognizable on federal habeas review. It is FURTHER ORDERED that within thirty (30) days, Respondent(s) shall file an Answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases that fully addresses the merits of exhausted claim two of the Application. It is FURTHER ORDERED that within thirty (30) days of the filing of the answer Applicant may file a reply, if he desires. By Judge Raymond P. Moore on 07/17/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Raymond P. Moore
Civil Action No. 13-cv-00706-RM-BNB
BLANCH HODGE, JR.,
Applicant,
v.
MICHAEL MILLER, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO DISMISS IN PART AND FOR ANSWER

Applicant, Blanch C. Hodge, is a prisoner in the custody of the Colorado Department of
Corrections (CDOC) and is incarcerated at the Crowley County Correctional Facility in Olney
Springs, Colorado. He has filed an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 [ECF No. 1]. Mr. Hodge challenges the validity of his conviction and sentence
imposed in the District Court of El Paso County, Colorado. He has been granted leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On March 20, 2013, 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). After obtaining three
extensions of time, Respondents submitted a Pre-Answer Response on May 31, 2013. [Doc. #
17]. Applicant thereafter sought and was granted an extension of time to file his Reply, which he
filed on June 28, 2013. [Doc. # 20].

The Court construes Mr. Hodge’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 pro se litigants. See
Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the Application, in
part.
I. Background and State Court Proceedings
Mr. Hodge was convicted in El Paso County District Court Case No. 99CR147, pursuant
to his guilty plea, of first degree burglary and third degree sexual assault. [ECF No. 16-1, at 2 of
26]. On July 13, 1999, the trial court sentenced him to a prison term of thirty years. [Id. at 25].
Mr. Hodge did not file a direct appeal of his conviction or sentence.
On October 12, 1999, Mr. Hodge filed a motion to reconsider his sentence pursuant to
Colo. R. Crim. P. 35(b). [Id.]. The trial court denied the motion on August 30, 2000. [Id. at 2425]. Mr. Hodge did not appeal from the trial court’s ruling.
Mr. Hodge filed a motion to correct an illegal sentence on October 3, 2001. [Id. at 23].
The trial court denied the motion on January 15, 2002. [Id.]. On appeal, the Colorado Court of
Appeals vacated Applicant’s sentence and remanded for sentencing. See People v. Hodge,
02CA0341 (Colo. App. Sept. 4, 2003) (unpublished). [Doc. # 16-2]. On April 22, 2004, the trial
court resentenced Mr. Hodge to twenty-four years in the CDOC. [Doc. # 16-1, at 19].
On May 12, 2004, Mr. Hodge filed a motion to withdraw his plea and to set aside his
sentence. [Id.]. The trial court denied the motion on June 14, 2004. [Id.]. Applicant appealed.
On appeal, he claimed that he was denied his constitutional right to counsel and a hearing at
resentencing. [Doc. # 16-4]. Mr. Hodge also raised several challenges to the validity of his

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guilty plea. [Id.]. The Colorado Court of Appeals vacated Applicant’s sentence and remanded
for resentencing. [Doc. # 16-7]. The state appellate court held that Mr. Hodge was improperly
denied counsel at the resentencing hearing and that the trial court incorrectly believed that the
twenty-four year sentence was automatic. [Id. at 4-5]. The Colorado Court of Appeals affirmed
the trial court’s ruling that Applicant’s challenges to his guilty plea were time-barred. [Id. at 58]. Mr. Hodge was resentenced to a twenty-four year prison term on August 25, 2006. [Id. at
15].
In the meantime, Mr. Hodge filed another post-conviction motion on July 20, 2004. [Doc.
# 16-1, at 19]. The trial court denied the motion and Applicant’s appeal was dismissed on
December 8, 2004. [Id. at 17].
On August 22, 2006, Mr. Hodge filed a motion to withdraw his guilty plea pursuant to
Colo. Crim. P. 32(d). The trial court denied the motion on August 25, 2006. [Id. at 15]. On
appeal, the Colorado Court of Appeals held that Applicant’s advisement at the providency
hearing concerning his possible sentence was defective, and remanded the case to the trial court
for an evidentiary hearing to determine whether the error was harmless. See People v. Hodge,
205 P.3d 481 (Colo. App. 2008).
On remand, the trial court denied the motion on October 16, 2009, following an
evidentiary hearing. [Doc. # 16-1, at 12]. During the remand proceeding, Applicant also raised
a claim under Colo. Crim. P. 35(a) that his sentence was illegal, which the trial court denied on
October 20, 2009. [Id. at 11-12]. The Colorado Court of Appeals affirmed both orders on direct
appeal in People v. Hodge, 09CA2580 (Colo. App. July 5, 2012) (unpublished) [Doc. # 16-21].

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The Colorado Supreme Court denied Mr. Hodge’s petition for certiorari review on December 20,
2012. [Doc. # 16-23].
Mr. Hodge initiated this action on March 18, 2013, asserting three claims for relief: (1)
that his guilty plea was not knowing, intelligent and voluntary, in violation of due process; (2)
that his aggravated range sentence is illegal because the only factor relied on by the sentencing
court to aggravate his sentence was his probationary status, and the probationary sentence was
found to be illegal; and, (3) the trial court erred in failing to vacate his sentence before
conducting a Colo. Crim. P. 32(d) hearing on a motion to withdraw his guilty plea on remand
from the Colorado Court of Appeals. [Doc. # 1, at 47-52].
Respondents argue that the Application is barred by the one-year limitation period in 28
U.S.C. § 2244(d). Respondents further contend that claim two was procedurally defaulted in the
state courts and that claim three does not present a federal question cognizable on federal habeas
corpus review.
II. AEDPA Time Bar
Respondents first maintain that the Application is untimely under the one-year limitation
period set forth in 28 U.S.C. § 2244(d). The Anti-Terrorism and Effective Death Penalty Act
(AEDPA) provides:
(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
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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).
Mr. Hodge was sentenced on July 13, 1999 and was resentenced on April 22, 2004, and
again on August 25, 2006. Resentencing starts a new limitations period for federal habeas
purposes only with regard to claims related to the new judgment and sentence. See Prendergast
v. Clements, 699 F.3d 1182, 1185-88 (10th Cir. 2012); see also Zack v. Tucker, 704 F.3d 917,
918 (11th Cir. 2013) (collecting cases including Prendergast) (federal statute of limitations
requires a claim-by-claim approach to determine timeliness), overruling Walker v. Crosby, 341
F.3d 1240 (11th Cir. 2003) (resentencing restarts statute of limitations for all claims of habeas
application); Bachman v. Bagley, 487 F.3d 979, 982 (6th Cir. 2007) (applicant’s designation as
sexual predator did not restart statute of limitations, as all federal habeas claims related to
original judgment); Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004) (timeliness of habeas
corpus claims should be determined on a claim-by-claim basis).
Mr. Hodge’s first claim for relief, challenging his guilty plea, attacks his original
conviction and sentence. The time for filing a direct appeal of his original sentence expired on
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August 27, 1999, forty-five days after his original sentence was imposed on July 13, 1999. See
Colo. App. R. 4(b) (1999). As such, Mr. Hodge’s conviction became final on August 27, 1999
and the one-year limitation period commenced on that date, for purposes of federal habeas
review of Applicant’s first claim for relief. See Prendergast, 699 F.3d at 1185-88.
The Court next must determine whether Mr. Hodge filed state post-conviction motions
that 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
post-conviction motion.
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).
Mr. Hodge filed a motion to reconsider his sentence on October 12, 1999, 46 days after
the limitation period began. The motion was denied on August 30, 2000, and the limitation
period began to run forty-five days later, on October 14, 2000, when the time for filing an appeal
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expired. See Colo. App. R. 4(b) (1999). Mr. Hodge filed a motion to correct illegal sentence on
October 3, 2001 (352 days later). At that time, 398 days (46 days + 352 days) had elapsed on the
AEDPA time clock.
Mr. Hodge’s state post-conviction motions filed after the passage of the one-year period
are not relevant to the timeliness of claim one of his federal application. See Clark v. Oklahoma,
468 F.3d 711, 714 (10th Cir. 2004) (“Only state petitions for post-conviction relief filed within
the one year allowed by AEDPA will toll the statute of limitations.”); Fisher v. Gibson, 262 F.3d
1135, 1142–43 (10th Cir. 2001) (same). Accordingly, the Court finds that claim one of the §
2254 Application, filed on March 18, 2013, is time-barred unless equitable tolling applies.
The Court further finds that claims two and three of the Application (challenging Mr.
Hodge’s August 25, 2006 resentencing) are not time-barred because those claims did not accrue
until December 20, 2012, at the conclusion of Mr. Hodge’s state post-conviction proceeding.
III. Equitable Tolling
The one-year limitation period in 28 U.S.C. § 2244(d) is not jurisdictional and may be
tolled for equitable reasons “in rare and exceptional circumstances.” Gibson, 232 F.3d at 808
(internal quotation marks omitted); see also Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
Equitable tolling may be appropriate if (1) the petitioner is actually innocent; (2) an adversary’s
conduct or other extraordinary circumstance prevents the petitioner from timely filing; or (3) the
petitioner actively pursues judicial remedies but files a defective pleading within the statutory
period. See Holland v. Florida,

U.S.

, 130 S.Ct. 2549, 2562 (2010); Gibson, 232 F.3d at

808. Simple excusable neglect is not sufficient to support equitable tolling. Gibson, 232 F.3d at
808. Furthermore, equitable tolling is appropriate only if the petitioner pursues his claims

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diligently. Miller, 141 F.3d at 978. 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)). Mr. Hodge bears the burden of demonstrating that
equitable tolling is appropriate in this action. See id.
Mr. Hodge argues in his Reply brief that claim one of the Application is timely
because under Colo. R. Crim. P. 35(b), his conviction was not final until 120 days after
sentencing. He thus maintains that the 46 days that elapsed between the last date he could have
filed a direct appeal (August 27, 1999) and the date he filed his Rule 35(b) motion (October 12,
1999) cannot be counted against the AEDPA time clock. Applicant’s contention flies in the face
of the AEDPA, which provides that the one-year limitation period shall run from the latest of– “.
. . the date on which the 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). Under the Colo.
App. R. 4(b) (1999), Mr. Hodge had 45 days to seek direct review of his conviction. He failed to
do so. Instead, Applicant let the appeal period expire and filed a motion for reduction of
sentence 91 days after the sentence was imposed, in accordance with the filing requirements of
Colo. R. Crim. P. 35(b) (1999). However, nothing in Colo. R. Crim. P. 35(b) or the AEDPA
provides that a criminal conviction is not final simply because a state post-conviction remedy is
available. Under the express terms of the federal statute, the one-year limitation period
commenced on August 27, 1999, when the time for filing a direct appeal expired. See 28 U.S.C.
2244(d)(1)(A).
Mr. Hodge cites Serrano v. Williams, 383 F.3d 1181 (10th Cir. 2004) in support of his
contention that the one-year limitation period did not commence until after the conclusion of his

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Rule 35(b) proceeding. In Serrano, the Circuit Court of Appeals for the Tenth Circuit reversed
the district court’s determination that the petitioner’s § 2254 application was untimely. The
Tenth Circuit held that because New Mexico procedural rules authorized a petitioner to file a
motion for rehearing in the state supreme court within fifteen days of the state supreme court’s
denial of a petition for certiorari review, the petition for certiorari review remained pending and
the limitations period was tolled until the time for filing a petition for rehearing expired.
Serrano, 383 F.3d at 1185. The Circuit Court thus concluded that the petitioner’s § 2254
application, which was filed within fifteen days of the state supreme court's denial of his petition
for certiorari, was timely. Id. at 1187.
The Serrano decision is inapposite because the Circuit Court did not address the issue of
when the AEDPA one-year limitation period commences, but instead interpreted the language in
28 U.S.C. § 2244(d)(2) concerning when a state motion for post-conviction relief is pending for
purposes of tolling the statutory period.
Finally, the Court finds that Mr. Hodge does not allege any facts to demonstrate that he is
actually innocent of the crimes or that he actively pursued his judicial remedies but filed a
defective pleading within the statutory period. Accordingly, claim one (challenging the validity
of Applicant’s guilty plea) will be dismissed as time-barred.
IV. Exhaustion of State Court Remedies and Procedural Default
Respondents argue that Mr. Hodge has procedurally defaulted his second claim in the
state courts on an adequate and independent state law ground and, therefore, is not entitled to
federal habeas review of the merits of the claim. [Doc. # 16, at 16].

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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 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. Peoples, 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. 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).
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 state prisoner bringing a federal
habeas corpus action bears the burden of showing that he has exhausted all available state
remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
If a habeas petitioner “failed to exhaust state remedies and the court to which the
petitioner would be required to present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred . . . there is a procedural default. . . . .” Coleman

10

v. Thompson, 501 U.S. 722, 735 n.1 (1991); Anderson v. Sirmons, 476 F.3d 1131, 1139-40 n.7
(10th Cir. 2007) (applying anticipatory procedural bar). A claim that has been procedurally
defaulted in the state courts on an independent and adequate state procedural ground is precluded
from federal habeas review, unless the prisoner can demonstrate cause for the default and actual
prejudice as a result of the federal violation, or demonstrate that failure to consider the claim will
result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cummings v. Sirmons,
506 F.3d 1211, 1224 (10th Cir. 2007). A petitioner’s pro se status does not exempt him from the
requirement of demonstrating either cause and prejudice or a fundamental miscarriage of justice.
See Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994).
Mr. Hodge asserts in his second claim for relief that the aggravated sentence imposed by
the state district court in 2006 is unlawful, under Blakely v. Washington, 542 U.S. 296 (2004),
because the state court improperly relied on his probationary status. [Doc. # 1, at 50-51]. On
appeal in the state post-conviction proceeding, the Colorado Court of Appeals concluded that
Applicant’s sentence comported with Blakely. [Doc. # 16-21, at 5-6]. The state appellate court
did not reject the claim pursuant to a state procedural rule. Accordingly, the Court finds and
concludes that Mr. Hodge exhausted state remedies for his second claim.
V. Issue of State Law
Respondents finally contend that claim three of the § 2254 Application raises an issue of
state law that is not cognizable on federal habeas review.
Mr. Hodge asserts in claim three that the state district court violated Colo. R. Crim. P.
32(d) by failing to vacate his sentence before conducting an evidentiary hearing on the motion to
withdraw his guilty plea. [Doc. # 1, at 51-52].

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A federal habeas court is limited to deciding whether a conviction “violat[ed] the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). See Swarthout v.
Cooke,

U.S.

, 131 S.Ct. 859, 861 (2011) (“We have stated many times that ‘federal habeas

corpus relief does not lie for errors of state law,’” quoting Estelle v. McGuire, 502 U.S. 62,
67-68 (1991)) (other internal quotations and citation omitted). Because claim three fails to
present a federal issue, it will be dismissed.
IV. Orders
For the reasons discussed above, it is
ORDERED that claim one of the § 2254 Application is DISMISSED as barred by the
one-year limitation period in 28 U.S.C. § 2244(d). It is
FURTHER ORDERED that claim three of the § 2254 Application is DISMISSED
because it fails to present a federal issue cognizable on federal habeas review. It is
FURTHER ORDERED that within thirty (30) days, Respondent(s) shall file an Answer
in compliance with Rule 5 of the Rules Governing Section 2254 Cases that fully addresses the
merits of exhausted claim two of the Application. It is
FURTHER ORDERED that within thirty (30) days of the filing of the answer Applicant
may file a reply, if he desires.
DATED at Denver, Colorado, this 17th day of July, 2013.
BY THE COURT:

RAYMOND P. MOORE
District Judge

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