Woodward v. Zupan et al

Filing 14

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/7/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02671-BNB
DONALD WOODWARD,
Applicant,
v.
DAVID M. ZUPAN, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Donald Woodward, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the San Carlos Correctional
Facility in Pueblo, Colorado. On October 1, 2013, Mr. Woodward 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 in Denver District Court Case No. 07CR3838.
He paid the $5.00 filing fee in a habeas corpus action.
In an order filed on October 9, 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 November 7, 2013, after being granted
an extension of time, Respondents submitted their pre-answer response (ECF No. 12).
On November 26, 2013, Mr. Woodward filed a reply (ECF No. 13) to the pre-answer
response.

The Court must construe Mr. Woodward’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.
Following a jury trial, Mr. Woodward was convicted in Denver District Court Case
No. 07CR3838 on charges of first-degree burglary and second-degree aggravated
motor vehicle theft. ECF No. 1 at 72. On April 7, 2008, the trial court sentenced him to
concurrent sentences of twelve years on the first-degree burglary conviction and six
years on the second-degree aggravated motor vehicle theft conviction. ECF No. 1 at 2,
16. On March 24, 2011, the Colorado Court of Appeals affirmed the sentences on
direct appeal. ECF No. 1 at 71-84 (People v. Woodward, No. 08CA1090 (Colo. Ct. App.
Mar. 24, 2011)). On July 5, 2011, the Colorado Supreme Court denied certiorari review.
ECF No. 1 at 85. Mr. Woodward did not appeal to the United States Supreme Court.
On November 17, 2011, Mr. Woodward filed a motion for reduction of sentence
pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure (ECF No. 1 at 8891; ECF No. 12, ex. A (state register of actions) at 2), which the trial court denied on
November 21, 2011. ECF No. 1 at 106; ECF No. 12, ex. A at 2. Mr. Woodward did not
appeal the denial, and has not filed anything in state court since. ECF No. 1, ex. A at 2.
On October 1, 2013, Mr. Woodward filed the instant habeas corpus application
raising three claims:
(1)
Applicant’s right to a fair trial was violated when police officers gave
false testimony at trial. ECF No. 1 at 5.
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(2)
Applicant’s right to a fair trial was violated by the police
department’s failure to secure a video or audio recording of Applicant’s
confession. Id. at 6.
(3)
Applicant’s rights to due process and a fair trial were violated when
the trial court allowed the prosecutor to elicit a statement by Applicant
revealing that Applicant previously had been incarcerated. Id. at 6, 22.
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.
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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. Woodward’s criminal case became final. The
Colorado Supreme Court denied certiorari review in Mr. Woodward’s direct appeal of his
criminal conviction on July 5, 2011. Mr. Woodward did not seek a writ of certiorari from
the United States Supreme Court. As a result, his conviction became final ninety days
later, on October 3, 2011, 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).
Therefore, the one-year limitations period for purposes of § 2244(d) began to run on
October 3, 2011, the date that direct appeal concluded. See Holland v. Florida, 560
U.S. 631, 635 (2010).
The Court next must determine whether Mr. Woodward’s 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 post-conviction application, the limitations period is tolled during the period in which

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the petitioner could have sought an appeal under state law.” Gibson, 232 F.3d at 804.
The one-year period of limitation ran for 45 days from October 3, 2011, until
November 17, 2011, when Mr. Woodward filed a motion for reduction of sentence
pursuant to Colo. R. Crim. P. 35(b). On November 21, 2011, the trial court denied the
motion. Mr. Woodward did not appeal, and had forty-five days from November 21,
2011, until January 5, 2012, to do so. 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). The limitation period then ran uninterrupted for the next 320 days,
and expired on November 20, 2012. Mr. Woodward did not file his § 2254 application in
this Court until October 1, 2013. Therefore, the application is untimely.
The one-year limitation period in § 2244(d) is not jurisdictional and may be tolled
for equitable reasons. Holland, 560 U.S. at 649. 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.
Woodward bears the burden of demonstrating that equitable tolling is appropriate in this
action. See id.

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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.
at 1936. Thus, “a federal habeas court, faced with an actual-innocence gateway claim,
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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. Woodward 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. Woodward 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 habeas corpus application (ECF No. 1) 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
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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. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this

7th

day of

February

, 2014.

BY THE COURT:

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

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