Thomas v. Timme et al

Filing 13

ORDER re: 1 Application for Writ of Habeas Corpus filed by Mack Thomas, it is ORDERED that claim one and three of the § 2254 Application are DISMISSED as barred by the one-year limitation period in 28 U.S.C. § 2244(d). Claim three is dismissed on the additional ground that it fails to raise 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 2 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 William J. Martinez on 7/22/2013. (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge William J. Martínez
Civil Action No. 13-cv-01378-WJM
MACK THOMAS,
Applicant,
v.
RAE TIMME, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO DISMISS IN PART AND FOR ANSWER

Applicant, Mack Thomas, is a prisoner in the custody of the Colorado
Department of Corrections (CDOC) and is incarcerated at the Colorado Territorial
Correctional Facility in Canón City, Colorado. He has filed an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 [ECF No. 1]. Mr. Thomas challenges the
validity of his convictions and sentences imposed in the District Court of Boulder
County, Colorado. He has paid the $5.00 filing fee.
On May 29, 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). Respondents submitted a Pre-Answer Response on June 14, 2013.
[Doc. # 7]. Applicant filed a Reply on July 9, 2013 [Doc. # 8].
The Court construes Mr. Thomas’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
In 1986, Mr. Thomas was convicted by a jury in Boulder County District Court
Case No. 85CR736 of two counts of sexual assault on a child. The state court
sentenced him to consecutive sentences of four and six years. See Thomas v. People,
803 P.3d 144 (Colo. 1990) [Doc. # 7-2]. Mr. Thomas subsequently filed a postconviction motion pursuant to Colo. R. Crim. P. 35(c) that resulted in the state appellate
court reversing his convictions and remanding the case to the state district court for a
new trial. See People v. Thomas, 867 P.2d 880, 888 (Colo. 1994) [Doc. # 7-3].
Mr. Thomas was retried in March 1997 and the jury convicted him of one count of
sexual assault on a child by one in a position of trust and one count of sexual assault.
[Doc. # 7-10, at 3]. On April 23, 1997, the state district court sentenced Applicant to
sixteen years imprisonment for one victim, and lifetime probation for the other victim.
[Doc. # 7-1, at 12]. On June 16, 2003, the Colorado Court of Appeals issued a
mandate dismissing Applicant’s direct appeal with prejudice. [Id. at 7].
Mr. Thomas then filed a state post-conviction motion, which was denied by the
trial court. The Colorado Court of Appeals affirmed in People v. Mack W. Thomas, No.
04CA0202 (Colo. App. May 25, 2006) (unpublished). [Doc. # 7-4]. He filed another
post-conviction motion in 1997 that was denied as time-barred. The district court’s
order was affirmed in People v. Thomas, 195 P.3d 1162 (Colo. App. 2008). [Doc. #7-5].

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In the meantime, in 2007, Mr. Thomas filed an application for federal habeas
relief in this Court in Civil Action No. 07-cv-00114-LTB-MEH, raising several claims
pertaining to the direct appeal of his conviction and the denial of his various postconviction motions. The Court denied relief on procedural grounds and on the merits.
[See Thomas v. Ortiz, Action No. 07-cv-00114-LTB-MEH, Doc. ## 100, 102].
On June 15, 2009, the probation department filed a complaint to revoke
Applicant’s lifetime probation, alleging six violations of probation conditions. [Doc. # 710, at 4]. In response, Mr. Thomas sent a letter to the state district court confessing to
each of the six violations and requesting a termination of his probation. [Id.].
On August 14, 2009, at the revocation hearing, Mr. Thomas affirmed his
admission of each of the six violations and his desire for probation termination. The
state district court found that Applicant waived his right to an evidentiary hearing,
accepted his admissions, and revoked his probation. (Doc. # 7-1, at 4; # 7-10, at 4].
On September 18, 2009, the state district court sentenced Mr. Thomas to an eight-year
prison term with the CDOC. [Doc. # 7-1, at 3].
On October 29, 2009, Mr. Thomas filed a Colo. R. Crim. P. 35(a) motion to
correct illegal sentence, which was denied by the state district court on February 1,
2010. [Id. at 3]. The Colorado Court of Appeals affirmed the district court’s order on
October 6, 2011. [Doc. # 7-10]. Applicant’s petition for certiorari review was denied by
the Colorado Supreme Court on July 16, 2012. [Doc. # 7-12].
Mr. Thomas filed his federal § 2254 application on May 28, 2013, raising three
issues: (1) whether his waiver of right to counsel for representation at the probation
revocation hearing was valid; (2) whether, after retrial, the state district court lawfully
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sentenced him to a longer sentence after a probation revocation when the court did not
make an affirmative finding justifying an increased sentence; and, (3) whether the
corpus delecti rule should apply to probation revocation hearings where the new
allegations do not involve an alleged criminal offense.1 [Doc. # 1, at 3-4].
Respondents argue that claims one and three in the Application are barred by
the one-year limitation period in 28 U.S.C. § 2244(d). Respondents further contend that
claim three presents a state law issue that is not cognizable on federal habeas review.
Respondents concede that claim two in the Application is timely and that Mr. Thomas
exhausted state remedies for that claim.
II. AEDPA Time Bar
Respondents first maintain that claims one and three in the Application are
untimely under the one-year limitation period set forth in 28 U.S.C. § 2244(d). The AntiTerrorism 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 the United States is removed, if the applicant was
prevented from filing by such State action;

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The Court notes that the instant § 2254 Application is not a second or successive petition
because the factual basis of the claims asserted by Mr. Thomas did not arise until 2009 and therefore
could not have been raised in his prior federal habeas proceeding. See 28 U.S.C. § 2244(b)(2)(B)(i).

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(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). See also Prendergast v. Clements, 699 F.3d 1182, 1185
(10th Cir. 2012) (“As provided by [28 U.S.C. § 2244(d)(1)], the limitations period begins
to run on the latest of four possible dates.”).
A. Claims One and Three
1. timeliness
Mr. Thomas’s first and third claims for relief raise issues concerning his 2009
probation revocation proceeding. The factual predicate of the claims could not have
been discovered until the revocation hearing was held on August 14, 2009. As such,
the one-year limitation period commenced on August 15, 2009. See United States v.
Hurst, 322 F.3d 1256, 1261-62 (10th Cir. 2003) (one-year limitation period commences
the day after expiration of the time for seeking review).
The Court must next determine whether Mr. Thomas 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

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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. Thomas filed a post-conviction motion on October 29, 2009, 75 days after
the one-year limitation period began to run. The AEDPA time clock commenced again
on July 16, 2012, when the Colorado Supreme Court denied his petition for certiorari
review in the state post-conviction proceeding. Another 315 days elapsed before Mr.
Thomas filed his federal application in this Court on May 28, 2013. The Court therefore
finds that Mr. Thomas filed claims one and three after the statutory one-year filing
period expired.
Mr. Thomas argues in his Reply brief that claims one and three are timely
because he filed a motion with the state district court on September 22, 2009 “noting the
eight year sentence is illegal and requesting appointment of counsel to perfect an
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appeal.” [Doc. # 8, at 2; see also Doc. # 1, at 3]. Applicant argues that this motion tolled
the limitations period 38 days after the statutory period commenced, and that the statute
remained tolled until the Colorado Supreme Court denied certiorari review in his state
post-conviction proceeding on July 16, 2012. [Id.]. Mr. Thomas thus calculates that
only 353 days elapsed on the AEDPA time clock before he filed his federal application
asserting claims one and three.
Applicant’s argument misses the mark. The motion for appointment of counsel
he filed in the state district court on September 22, 2009 was not an application for state
post-conviction review that tolled the limitations period. See Pursley v. Estep, No. 061496, 216 F. App'x 733, 734 (10th Cir. Feb. 8, 2007) (unpublished) (finding that motions
for appointment of counsel in post-conviction proceedings pursuant to Colorado Rule
35(c) that did not state adequate factual or legal grounds for relief did not toll the
one-year limitation period); see also May v. Workman, 339 F.3d 1236, 1237 (10th Cir.
2003) (motion for transcripts does not toll the one-year limitations period under 28
U.S.C. § 2244(d)(2)); Wall v. Kholi, 131 S.Ct. 1278, 1285 (2011) (defining application for
state post-conviction review as a judicial reexamination of a judgment or claim in a
proceeding outside of the direct review process). Accordingly, because claims one and
three were filed after expiration of the one-year statutory filing period, the claims are
time-barred unless equitable tolling applies.
2. 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
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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
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. Thomas does not allege any facts in his § 2254 Application or Reply to meet
his burden of demonstrating that equitable tolling is appropriate in this action. See id.
Finally, the Court finds that Mr. Thomas does not allege any facts to demonstrate
that he is actually innocent of the conduct resulting in his probation revocation or that he
actively pursued his judicial remedies but filed a defective pleading within the statutory
period. Accordingly, the Court will dismiss claim ones and three, which challenge the
legality of his probation revocation proceeding, as time-barred.
B. Claim Two
Respondents concede that claim two is timely because it pertains solely to the
state district court’s imposition of an eight-year sentence at the resentencing hearing
after Mr. Thomas’ probation was revoked. The factual predicate of claim two was first
discovered at the resentencing hearing held on September 18, 2009. The one-year
period commenced on September 19, 2009 and was tolled 40 days later when Mr.
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Thomas filed a state post-conviction motion on October 29, 2009. The AEDPA time
clock began to run again on July 17, 2012, the day after the Colorado Supreme Court
denied Applicant’s petition for certiorari review, and ran for 315 days until Mr. Thomas
filed his federal application. Accordingly, the Court finds that Mr. Thomas filed claim two
of his federal application within the 365-day AEDPA filing period. See 28 U.S.C.
§ 2244(d)(1).
IV. Exhaustion of State Court Remedies for Claim Two
Respondents concede that Mr. Thomas exhausted state remedies for his second
claim by raising the claim to the Colorado Court of Appeals as a federal constitutional
issue in a state-post conviction proceeding and presenting the claim to the Colorado
Supreme Court in a petition for certiorari review. [Doc. #7, at 13-14].
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).

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The Court agrees that Mr. Thomas exhausted state remedies for his second
claim. [See Doc. # 7-6, at 22-26; # 7-11, at 11-14]. Because claims one and three are
untimely, the Court need not address whether Applicant exhausted state court remedies
for those claims.
V. Issue of State Law
Respondents argue, in the alternative, that claim three of the § 2254 Application
raises an issue of state law that is not cognizable on federal habeas review.
Mr. Thomas asserts in claim three that the state district court should have applied
the corpus delecti rule to his probation revocation hearing where the new allegations did
not involve an alleged criminal offense. Applicant presented this claim as an issue of
state law in both his federal application and in the state post-conviction proceedings.
[See Doc. # 1, at 7; # 7-6, at 27-32; # 7-10, at 13-14].
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 is subject to dismissal
on that ground, in addition to being untimely.

VI. Orders
For the reasons discussed above, it is

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ORDERED that claim one and three of the § 2254 Application are DISMISSED
as barred by the one-year limitation period in 28 U.S.C. § 2244(d). Claim three is
dismissed on the additional ground that it fails to raise 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 2 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 this 22nd day of July, 2013.

BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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