Carr v. Miller et al

Filing 12

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/3/13. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01951-BNB
CHRISTOPHER CARR,
Applicant,
v.
WARDEN MIKE MILLER, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Christopher Carr, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Carr has filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging the validity of his
conviction and sentence in Denver District Court case number 97CR4237. Mr. Carr
also has filed a separate habeas corpus action challenging the validity of a state court
conviction and sentence in a related state court case, Denver District Court case
number 02CR213. See Carr v. Miller, No. 13-cv-01950-BNB (D. Colo. filed July 22,
2013).
On July 23, 2013, Magistrate Judge Boyd N. Boland ordered 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 pursuant to 28
U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses in
this action. On July 31, 2013, Respondents filed their Pre-Answer Response (ECF No.

6). On September 25, 2013, Mr. Carr filed a Response (ECF No. 11) to the Pre-Answer
Response.
The Court must construe the application and other papers filed by Mr. Carr
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 be 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 untimely.
The following procedural background is relevant to the convictions Mr. Carr is
challenging in both of his habeas corpus cases:
In April 1998, Carr pled guilty to one count of forgery,
a class four felony, in case number 97CR4237 in exchange
for the prosecution’s dismissal of five other counts and
waiver of the two prior felony rule. His sentencing was
continued. However, Carr failed to appear at the sentencing
hearing because he was in custody in New Mexico on
unrelated charges.
In October 2001, Carr appeared with counsel in
Colorado to schedule a sentencing hearing in case number
97CR4237 and in an earlier case (92CR827). The district
court deferred sentencing pending the resolution of four new
cases filed against Carr while he was in New Mexico.
On February 22, 2002, Carr and the prosecution
entered into a plea agreement approved by the court that
would resolve all of his pending cases and allow the court to
impose sentence in 97CR4237. Under the agreement, he
pled guilty to one count of felony theft in 02CR213 in
exchange for the dismissal of the remaining counts in that
case and the dismissal of the other three cases. The court
sentenced him to six years in community corrections for the
forgery in 97CR4237 and a concurrent sentence of twelve
years in community corrections for the theft in 02CR213.
Carr failed to comply with the conditions of community
corrections, and in September 2003, the court sentenced
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him to the Department of Corrections.
In November 2003, March 2004, June 2006, and June
2009 Carr filed pro se motions for post-conviction relief
under Crim. P. 35(c). The court denied the motions without
a hearing on February 8, 2010. In April 2010, Carr also filed
a motion for default judgment which was denied.
People v. Carr, No. 10CA1287, slip op. at 1-2 (Colo. App. Sept. 22, 2011) (unpublished)
(ECF No. 6-4 at 3-4). On appeal, the Colorado Court of Appeals affirmed the denial of
the postconviction Rule 35(c) motions. (See ECF No. 6-4.) On April 30, 2012, the
Colorado Supreme Court denied Mr. Carr’s petition for writ of certiorari in the state court
postconviction proceedings. (See ECF No. 6-2.)
Mr. Carr filed the instant habeas corpus application on July 22, 2013, and he
raises three claims for relief. The first two claims are ineffective assistance of counsel
claims in which he contends that counsel failed to properly investigate his case and
raise possible defenses, provided faulty legal advice, failed to take any action in
response to breaches of the plea agreement by the government, failed to report
outrageous prosecutorial misconduct, and coerced Mr. Carr to plead guilty. Mr. Carr
alleges in his third claim that his rights were violated because the trial court failed to rule
on his Rule 35(c) motions in a timely manner.
Respondents’ argument that Mr. Carr’s claim challenging the delay in ruling on
his Rule 35(c) motions, claim three in the application, may not be raised in this habeas
corpus action because it does not raise a federal constitutional issue is correct. There
is no federal constitutional right to postconviction review in the state courts. See
Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). As a result, a claim of constitutional
error that “focuses only on the State’s post-conviction remedy and not the judgment
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which provides the basis for [the applicant’s] incarceration . . . states no cognizable
federal habeas claim.” Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998); see also
Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (noting that petitioner’s challenge
to state “post-conviction procedures on their face and as applied to him would fail to
state a federal constitutional claim cognizable in a federal habeas proceeding”). Mr.
Carr’s third claim in the application relates solely to the state court postconviction
proceedings and does not implicate the validity of the state court conviction under attack
in this action. Therefore, claim three will be dismissed for failure to present a
cognizable federal constitutional issue.
Respondents next argue that the entire action is untimely because it is barred by
the one-year limitation period in 28 U.S.C. § 2244(d). That statute 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
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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 the
date on which Mr. Carr’s conviction became final. See 28 U.S.C. § 2244(d)(1)(A).
Respondents assert that Mr. Carr’s conviction became final, and the one-year limitation
period began to run, when the time expired to file a direct appeal following his
sentencing on February 22, 2002.
Pursuant to the version of Rule 4(b) of the Colorado Appellate Rules applicable
at the time Mr. Carr was sentenced on February 22, 2002, he had forty-five days to file
a notice of appeal following the sentencing. Mr. Carr did not file a notice of appeal, and
the judgment of conviction became final on April 8, 2002, when the time to file a direct
appeal expired. Mr. Carr does not argue that his conviction became final on some other
date. The fact that Mr. Carr was resentenced to prison on September 16, 2003, does
not alter the Court’s conclusion that the judgment of conviction was final on April 8,
2002, because he is not asserting any claims relevant to the resentencing.
The Court also finds that the one-year limitation period began to run on April 8,
2002, because Mr. Carr does not contend that he was prevented by unconstitutional
state action from filing this action sooner, he is not asserting any constitutional rights
newly recognized by the Supreme Court and made retroactively applicable to cases on
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collateral review, and he knew or could have discovered the factual predicate for his
ineffective assistance of counsel claims before his conviction became final. See 28
U.S.C. § 2244(d)(1)(B) - (D).
Mr. Carr did not initiate this action within one year after April 8, 2002. Therefore,
the Court must consider whether the one-year limitation period was tolled for any
amount of time. Pursuant to 28 U.S.C. § 2244(d)(2), a properly filed state court
postconviction 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
post-conviction motion.
Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000) (footnote omitted).
The issue of whether a state court postconviction motion is pending for the
purposes of § 2244(d)(2) is a matter of federal law, but “does require some inquiry into
relevant state procedural laws.” 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). Furthermore, “regardless of whether a petitioner
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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 record before the Court demonstrates that Mr. Carr did not file his first
postconviction Rule 35(c) motion in the trial court until November 17, 2003 (see ECF
No. 6-1 at 4), which was after the one-year limitation period already had expired on April
8, 2003. Therefore, none of the Rule 35(c) motions tolled the one-year limitation period.
See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (stating that properly filed
state court postconviction motions toll the one-year limitation period only if they are filed
within the one-year limitation period). As a result, the instant action is barred by the
one-year limitation period in the absence of some other reason to toll the one-year
limitation period.
The Court reaches the same conclusion even if the one-year limitation period did
not begin to run until Mr. Carr was resentenced to prison on September 16, 2003. In
this scenario, the one-year limitation period began to run on October 31, 2003, when the
time expired to file a direct appeal following the resentencing because Mr. Carr again
did not file a direct appeal, and it was tolled from November 17, 2003, through April 30,
2012, while the state court postconviction proceedings were pending. However,
because Mr. Carr did not file the instant action until July 22, 2013, which was more than
one year after the state court postconviction proceedings concluded in April 2012, the
action still is untimely in the absence of some other reason to toll the one-year limitation
period.
The one-year limitation period in § 2244(d) is not jurisdictional and may be tolled
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for equitable reasons. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Generally,
equitable tolling is appropriate if the petitioner 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 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. Carr fails to present any reasoned argument that the one-year limitation
period should be tolled for equitable reasons. Mr. Carr does assert that he previously
filed a timely habeas corpus action in the District of Colorado in 2004 that was
dismissed for failure to exhaust state remedies. See Carr v. United States, No. 04-cv00415-ZLW (D. Colo. June 21, 2004). However, the existence of a prior federal habeas
corpus action, even if timely, provides no basis for equitable tolling of the one-year
limitation period as it applies to the instant action. The prior action was pending for only
three or four months in 2004; Mr. Carr fails to allege or demonstrate that he pursued his
claims in this action diligently; and he fails to allege or demonstrate that some
extraordinary circumstance prevented him from filing this action in a timely manner.
Therefore, the Court finds no basis for equitable tolling in this action. Although not an
equitable tolling argument, the Court also notes that the existence of a prior federal
habeas corpus action would not toll the one-year limitation period pursuant to § 2244(d).
See Duncan v. Walker, 533 U.S. 167, 181 (2001) (holding “that an application for
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federal habeas corpus review is not an ‘application for State post-conviction or other
collateral review’ within the meaning of 28 U.S.C. § 2244(d)(2)”).
In conclusion, Mr. Carr’s third claim in the application will be dismissed because
that claim does not raise a cognizable federal constitutional issue. Mr. Carr’s first and
second claims in the application, which raise ineffective assistance of counsel issues,
will be dismissed as barred by the one-year limitation period. Because the Court finds
that all of Mr. Carr’s ineffective assistance of counsel issues are untimely, the Court
need not address Respondents’ additional argument that some of the ineffective
assistance of counsel issues also are unexhausted and procedurally barred.
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 Applicant files a notice of appeal he also must pay the full $455
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 habeas corpus application (ECF No. 1) is denied and the
action is dismissed for the reasons stated in this order. 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

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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.
DATED at Denver, Colorado, this 3rd

day of

October

, 2013.

BY THE COURT:

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

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