Crews v. Trani et al.

Filing 16

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/21/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01874-BNB
MAITISE D. CREWS,
Applicant,
v.
WARDEN TRAVIS TRANI, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Maitise D. Crews, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the correctional facility in
Limon, Colorado. On July 15, 2013, Mr. Crews filed an Application for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). On August 1, 2013, he filed an
amended habeas corpus application (ECF No. 4). Mr. Crews is challenging the validity
of his conviction in El Paso County District Court Case No. 07CR1940. Mr. Crews paid
the $5.00 filing fee in a habeas corpus action.
On August 5, 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). On August 27, 2013, Respondents submitted their pre-answer response
(ECF No. 11). Mr. Crews did not file a reply to the pre-answer response, although he
was granted the opportunity and extensions of time to do so.

The Court must construe Mr. Crews’ 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. Crews was convicted by a jury in El Paso County District Court Case No.
07CR1940 of felony menacing, third-degree assault, and three habitual criminal counts
following an altercation in which he attacked his wife. ECF No. 11, ex. A (state register
of actions) at 4-5, ex. B (People v. Crews, No. 08CA0451 (Colo. Ct. App. Apr. 21,
2011)) at 2. He was sentenced to twelve years of incarceration. ECF No. 11, ex. A at
9; ex. C (appellant’s opening brief) at 9. On April 21, 2011, the Colorado Court of
Appeals affirmed the convictions and sentence on direct appeal. ECF No. 11, ex. B.
On November 17, 2011, the Colorado Supreme Court denied certiorari review. ECF
No. 11, ex. A at 7.
On June 29, 2012, Mr. Crews filed a postconviction motion challenging his
conviction, ECF No. 4 at 4; ECF No. 11, ex. A at 7., which the trial court denied on July
10, 2012. Id. Mr. Crews did not appeal.
In the amended habeas corpus application, Mr. Crews asserts three claims:
1. The trial court abused its discretion by denying
Applicant’s request for substitute appointed counsel. ECF
No. 4 at 5.
2. Applicant was denied a fair trial by prosecutorial
comments in closing argument. Id. at 6.
3. The trial court violated state evidentiary rules in admitting
certain documents in Applicant’s habitual criminal sentencing
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hearing, resulting in his conviction without his guilt being
proven beyond a reasonable doubt. Id.
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
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. Crews’ criminal case became final. The
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Colorado Supreme Court denied certiorari review in Mr. Crews’ direct appeal of his
criminal conviction on November 17, 2011. Mr. Crews did not seek a writ of certiorari
from the United States Supreme Court. As a result, his conviction became final ninety
days later, on February 15, 2012, 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
February 15, 2012, the date that direct appeal concluded. See Holland v. Florida, 130
S. Ct. 2549, 2555 (2010).
The Court next must determine whether Mr. Crews’ state court postconviction
motion 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.

The one-year period of limitation ran for 135 days from until June 29, 2012, when

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Mr. Crews filed his postconviction motion. The state trial court denied the motion on
July 10, 2012, and Mr. Crews did not appeal. Assuming the July 10, 2012 order was
final for purposes of appeal, Mr. Crews would have been allowed forty-nine days, or
until August 28, 2012, in which to appeal that order. See Gibson, 232 F.3d at 804; see
also Colo. App. R. 4(b) (2011) (amended and adopted December 14, 2011, effective
July 1, 2012, to allow forty-nine days for appeal).
The limitation period then ran for an additional 321 days until Mr. Crews filed the
original habeas corpus application in this Court on July 15, 2013. Because 456 days
(135 + 321 = 456) passed before Mr. Crews initiated the instant habeas corpus action,
the application was not filed in a timely manner. 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, 560 U.S. 631, 649 (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. Crews bears the burden of demonstrating that equitable tolling is

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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
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
McQuiggin v. Perkins, 133 S. Ct. 1924, 1935 (2013); Lopez v. Trani, 628 F.3d 1228,
1230-31 (10th Cir. 2010).
A credible showing of actual innocence provides a gateway to consideration of an
otherwise untimely claim of constitutional error as an equitable exception to the oneyear limitation period in § 2244(d). McQuiggin, 133 S. Ct. at 1928. However, “tenable
actual-innocence gateway pleas are rare.” Id. 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 v. Delo, 513 U.S. 298, 324 (1995); see McQuiggin, 133 S. Ct. at 1935 (applying
actual innocence test in Schlup to one-year limitation period in § 2244(d)). 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.” Schlup, 513 U.S. at 327;
see also McQuiggin, 133 S. Ct. at 1928, 1935. Furthermore, untimeliness “bear[s] on
the credibility of evidence proffered to show actual innocence.” McQuiggin, 133 S. Ct.
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at 1936. Thus, “a federal habeas court, faced with an actual-innocence gateway claim,
should count unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier
to relief, but as a factor in determining whether actual innocence has been reliably
shown.” Id. at 1928.
Mr. Crews fails to present any reasoned argument that the one-year limitation
period should be tolled for equitable reasons. Therefore, the Court finds no basis for
equitable tolling in this action. For these reasons, the Court finds that this action is
barred by the one-year limitation period, and the action will be dismissed for that
reason. Because the Court has determined that the entire action is time-barred, the
Court need not address Respondents’ alternative arguments regarding exhaustion of
state court remedies.
Furthermore, 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. Crews files a notice of appeal he also must 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 amended habeas corpus application (ECF No. 4) 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
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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 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. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this

21st day of

February

, 2014.

BY THE COURT:

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

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