Kanz v. Bonner et al

Filing 17

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/23/13. No certificate of appealability shall issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02421-BNB

MATTHEW W. KANZ,
Applicant,
v.
WARDEN BOONER, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

At the time Applicant, Matthew W. Kanz, initiated this action he was in the
custody of the Colorado Department of Corrections. Applicant now has been paroled
and resides in Colorado Springs, Colorado. Applicant raises two claims challenging the
validity of his conviction in El Paso County Court Case No. 08CR2571. Applicant
contends that (1) his guilty plea should be withdrawn because his plea did not include
an agreement that he committed a sex offense and (2) trial counsel coerced him into
pleading guilty and failed to conduct adequate research regarding available defenses.
On September 11, 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 Response on October 17, 2013.
Applicant did not reply to the Response.

The Court must construe liberally the Application because Applicant 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 does not “assume
the role of advocate for the pro se litigant.” See Hall, 935 F.2d at 1110. The Court will
dismiss the action because it is barred by the one-year limitation period in 28 U.S.C. §
2244(d) for the reasons stated below.
In January 16, 2009, Applicant pled guilty to obscenity-promotion to minor in
violation of Colo. Rev. Stat § 18-7-105(2.5) and was sentenced on April 28, 2009, to five
years of SOISP (Sex Offender Intensive Supervised Probation) and to ten years
registering as a sex offender. See Pre-Answer Resp., ECF No. 14-1, Ex. A at 11-12.
Applicant did not file a direct appeal. Id. On July 17, 2009, Applicant filed a motion to
withdraw the guilty plea pursuant to Colo. R. Crim. P. 35(c) and a motion to withdraw
the guilty plea pursuant to Colo. R. Crim. P. 35(a) on October 2, 2009. Id. at 10. The
district court denied the motions on October 15, 2009, and Applicant appealed the
denial on November 23, 2009. Id. at 9-10. The Colorado Court of Appeals entered an
order on May 5, 2011, affirming the district court’s denial of the postconviction, Prelim
Resp., ECF No. 14-4, Ex. D, and Applicant filed a petition for certiorari review on
November 18, 2011, Id., ECF No. 14-5, Ex. E, that was denied on September 19, 2012,
Id., ECF No. 14-6, Ex. F.
Respondents argue that this action is untimely under the one-year limitation
period set forth in 28 U.S.C. § 2244(d)(1). 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
2

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).
Applicant’s conviction became final on June 12, 2009, when the time ran for
appealing the sentence entered on April 28, 2009. See Locke v. Saffle, 237 F.3d 1269,
1273 (10th Cir. 2001) (citing Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999);
Colo. App. R. 4(b) (Pursuant to Rule 4(b) of the Colorado Appellate Rules that was in
effect at the time Applicant was sentenced, he had forty-five days to file a notice of
appeal after he was sentenced.)
The Court must determine whether any of Applicant’s state postconviction
motions tolled the one-year limitation period. Pursuant to 28 U.S.C.§ 2244(d)(2), a
3

properly filed state court post-conviction motion tolls the one-year limitation period while
the motion is pending. The state court registry for Case No. 08CR2571 shows that from
June 13, 2009, the day after Applicant’s conviction and sentence became final, until July
16, 2009, the day prior to when Applicant filed a postconviction motion, there was not a
postconviction or collateral proceeding pending in this case for thirty-four days. Then
from September 11, 2012, the day after the Colorado Supreme Court denied the petition
for certiorari review in Applicant’s postconviction motions, until September 4, 2013, the
day prior to when Applicant filed this action, nothing was pending in state court for 359
days. For purposes of § 2244(d) the time was not tolled for 393 days. This action,
therefore, is time barred.
“[T]he timeliness provision in the federal habeas corpus statute is subject to
equitable tolling.” Holland v. Florida, 130 S. Ct. 2549, 2554 (2010). “[A] petitioner is
entitled to equitable tolling only if he shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Id. at 2562 (internal quotation marks and citation omitted); accord Yang v.
Archuleta, 525 F.3d 925, 929 (10th Cir. 2008) (“ ‘Equitable tolling is a rare remedy to be
applied in unusual circumstances, not a cure-all for an entirely common state of
affairs.’ ”) (quoting Wallace v. Kato, 549 U.S. 384, 396 (2007)). The inmate must allege
with specificity the steps he took to pursue his federal claims. Yang, 525 F.3d at 930.
Finally, the inmate bears the burden of demonstrating that equitable tolling is
appropriate. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
In addition, equitable tolling may be appropriate if the inmate is actually innocent

4

or if the inmate actively pursues judicial remedies but files a defective pleading within
the statutory period. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). “A
sufficiently supported claim of actual innocence creates an exception to procedural
barriers for bringing constitutional claims, regardless of whether the petitioner
demonstrated cause for the failure to bring these claims forward earlier.” Lopez v.
Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010).
On Page Seven of the Application form, under the “Timeliness of Application”
section, Applicant is asked to explain why the Application is not barred by the one-year
limitation period in § 2244(d). Applicant does not provide an explanation, and he fails to
reply and address equitable tolling. The Court, therefore, will dismiss this action as
time-barred.
Because the action clearly is time-barred, the Court need not address
Respondents’ argument that Applicant’s claims are procedurally defaulted.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not taken in good faith, and, therefore, in forma pauperis status is denied
for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Applicant files a notice of appeal he must also pay the full $505 appellate filing fee or file
a motion to proceed in forma pauperis in the Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 is denied and this action is dismissed as time-barred under 28 U.S.C.
§ 2244(d). It is

5

FURTHER ORDERED that no certificate of appealability shall issue because
Applicant has failed to show that jurists of reason would find it debatable that the district
court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 23rd day of

December

, 2013.

BY THE COURT:

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

6