Stroud v. Werholtz, et al
ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/3/13. No certificate of appealability will issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01102-BNB
CHARLES R. STROUD,
RODGER WERHOLTZ, Interim Executive Director, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER OF DISMISSAL
Applicant, Charles R. Stroud, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who is incarcerated at the correctional facility in
Buena Vista, Colorado. Mr. Stroud initiated this action by filing pro se on April 24, 2013,
an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1).
On May 30, 2013, Mr. Stroud filed an amended Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 5) after being ordered to do so. He is
challenging the validity of his Colorado conviction in El Paso County District Court Case
No. 90CR3148. Mr. Stroud paid the $5.00 filing fee for a habeas corpus action.
On July 8, 2013, 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). ECF No. 6. On July 25, 2013, Respondents submitted their pre-answer
response (ECF No. 9). On September 6, 2013, after being granted an extension of
time, Mr. Stroud filed a reply (ECF No. 12) to the pre-answer response.
The Court must construe Mr. Stroud’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. Stroud pleaded guilty to second-degree kidnapping and two counts of
habitual criminal. ECF No. 9, ex. I (People v. Stroud, No. 96CA1256 (Colo. Ct. App.
July 24, 1997)) at 2. On November 4, 1991, the trial court sentenced him to fifty years
of imprisonment in the DOC. ECF No. 9, ex. A (state court register) at 14-15. Mr.
Stroud did not appeal directly from his judgment of conviction or sentence.
On June 12, 1995, Mr. Stroud filed a motion to correct illegal sentence. ECF No.
9, ex. A at 10. The trial court denied the motion, and the Colorado Court of Appeals
affirmed. ECF No. 9, ex. I (People v. Stroud, No. 96CA1256 (Colo. Ct. App. July 24,
1997)). On March 2, 1998, the Colorado Supreme Court denied certiorari review. ECF
No. 9, ex. K.
On May 18, 1998, Mr. Stroud filed a motion for reduction of sentence which the
trial court denied on June 9, 1998. ECF No. 9, ex. A at 7-8. He did not appeal.
On September 3, 2003, Mr. Stroud filed a motion for release of evidence and
property. Proceedings pertinent to that motion appear to have been concluded in April
2005. ECF No. 9, ex. A at 6-7.
In August 2008, Mr. Stroud began filing a series of motions for postconviction
relief. On August 18, 2008, he filed motions for appointment of conflict-free counsel
and to conduct the plea withdrawal hearing by telephone or video conference. ECF No.
9, ex. A at 6. The register of actions does not reflect the filing of a substantive motion
for relief, but on September 10, 2008, the trial court issued an order denying Mr.
Stroud’s motion for postconviction relief pursuant to Rule 35(c) of the Colorado Rules of
Criminal Procedure. ECF No. 9, ex. A at 6. Mr. Stroud did not appeal.
On October 23, 2008, Mr. Stroud filed a motion to correct illegal sentence which
the trial court denied on November 6, 2008. ECF No. 9, ex. A at 6. Mr. Stroud did not
On December 1, 2009, Mr. Stroud filed a state petition for writ of habeas corpus.
ECF No. 9, ex. A at 5-6; ex. B. On January 8, 2010, he filed a motion challenging the
trial court’s jurisdiction to litigate his habeas corpus petition in the criminal action. ECF
No. 9, ex. A at 5. On the same date, he initiated a separate action for declaratory relief
challenging the department of corrections’ designation of him as a sex offender. ECF
No. 9, ex. C at 5; ex. D. On March 17, 2010, the trial court granted Mr. Stroud’s
jurisdiction motion and transferred the petition to the state habeas case. ECF No. 9, ex.
A at 5. The state habeas corpus court ultimately denied declaratory relief but does not
appear to have ruled on his state habeas corpus petition. ECF No. 9, ex. E. On July
30, 2012, the Colorado Supreme Court affirmed the state habeas corpus ruling. ECF
No. 9, ex. F.
On April 24, 2013, Mr. Stroud filed an Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 in this Court. ECF No. 1. Pursuant to this Court’s order
of May 30, 2013 (ECF No. 4), he filed an amended Application for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 5) raising the single claim that his
sentence violates due process and equal protection because one of his prior convictions
does not meet the requirements of Colorado’s habitual criminal statute.
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 the instant action, Mr. Stroud pleaded guilty and was sentenced in 1991, prior
to April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act
(AEDPA). Consequently, the one-year limitation period began to run on April 24, 1996,
when AEDPA went into effect, and is tolled during the time a properly filed state motion
for postconviction relief is pending. See § 2244(d)(2); Preston v. Gibson, 234 F.3d
1118, 1120 (10th Cir. 2000).
The Court next must determine whether any of Mr. Stroud’s state court
postconviction proceedings tolled the one-year limitation period. Pursuant to §
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 postconviction review is
properly filed within 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). These 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) (footnote omitted).
The issue of whether a post-conviction motion is pending is a matter of federal
law, but “does require some inquiry into relevant state procedural laws.” 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.
The motion to correct illegal sentence Mr. Stroud filed on June 12, 1995, was
pending and tolled the one-year limitations period until March 2, 1998, when the
Colorado Supreme Court denied certiorari review. The limitations period began to run
the following day, March 3, 1998, and continued unabated until it expired a year later on
March 3, 1999. See United States v. Hurst, 322 F.3d 1256, 1259-61 (10th Cir. 2003)
(one-year limitations period ends on the one-year anniversary of the date upon which
the period began to run).
Mr. Stroud’s motion for reduction of sentence did not toll the limitations period.
Mr. Stroud had until March 3, 1992, to file the motion in a timely manner, i.e., 120 days
after he was sentenced on November 4, 1991. See Colo. R. Crim. P. 35(b) (2011)
(subsequently amended and adopted December 14, 2011, effective July 1, 2012, to
allow 126 days for filing). He filed the motion on May 18, 1998, more than six years out
of time. Regardless of whether the trial court reached the merits of the motion, the
motion was not properly filed for purposes of the AEDPA limitations period. See
Gibson, 232 F.3d at 805-06.
Even if Mr. Stroud’s motion for reduction of sentence had tolled the limitations
period, it did so only for 68 days, from May 18, 1998, when he filed the motion, until July
24, 1998, when the forty-five days expired to appeal the trial court’s denial of June 9,
1998. See Colo. App. R. 4(b) (2011) (subsequently amended and adopted December
14, 2011, effective July 1, 2012, to allow forty-nine days for appeal). More than ten
years elapsed until Mr. Stroud filed his next motion for postconviction relief, excluding
the 2005 proceeding which did not constitute an attack on his conviction, but rather
sought only the release of evidence and property. ECF No. 9, ex. A at 6-7.
None of Mr. Stroud’s subsequent postconviction motions tolled the limitations
period because it expired before he filed the motions. See Clark v. Oklahoma, 468 F.3d
711, 714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed within the
one year allowed by AEDPA will toll the statute of limitations.”). Therefore, the
application is untimely.
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 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).
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
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. Mr. Stroud’s ignorance of the law does not justify the extraordinary remedy
of equitable tolling. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000); Hallcy
v. Milyard, 387 F. App’x 858, 860 (10th Cir. 2010).
Mr. Stroud fails to assert any reason for this Court to toll the one-year limitation
period. Therefore, under § 2244(d), Mr. Stroud 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. Stroud has exhausted state court remedies or
procedurally defaulted his claim.
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. Stroud files a notice of appeal he must also pay the full $505.00 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 application is denied and the 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 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
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this
3rd day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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