Lollis v. Archuleta 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 1/21/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02778-BNB
MICHAEL K.1 LOLLIS,
Applicant,
v.
LOU ARCHULETA, Warden FCF, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Michael K. Lollis, is a prisoner in the custody of the Colorado
Department of Corrections at the Fremont Correctional Facility in Cañon City, Colorado.
Mr. Lollis has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1) (the “Application”) challenging the validity of his convictions
and sentences in six cases in the Arapahoe County District Court. The pertinent state
court case numbers are 05CR2314, 05CR2626, 05CR3084, 08CR511, 08CR517, and
08CR523.
On November 4, 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

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Applicant’s middle initial in the caption of the Application is “O.” However, based on Applicant’s
signature on the Application and other documents filed in this action, it appears that his true middle initial
is “K.”

defenses in this action. On December 11, 2013, Respondents filed their Pre-Answer
Response (ECF No. 13). Mr. Lollis has not filed a reply to the Pre-Answer Response
despite being given an opportunity to do so.
The Court must construe the Application liberally because Mr. Lollis 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 factual and procedural history of Mr. Lollis’ plea proceedings, sentencing,
and state court postconviction motions in his Arapahoe County cases, including a
conviction in case number 07CR307 that he is not challenging in this action, was
described by the Colorado Court of Appeals as follows:
This appeal involves seven different district court cases in
Arapahoe County. In December 2007, defendant pleaded
guilty in case number 07CR307 to identity theft, and the
court sentenced him to eight years in community corrections.
While serving the community corrections sentence,
defendant was arrested for sexual assault charges in Denver
County.2
Thereafter, the People filed the other six cases (case
numbers 05CR2314, 05CR2626, 05CR3084, 08CR511,
08CR517, and 08CR523) against defendant in Arapahoe
County. In September 2009, defendant pleaded guilty in
those six cases to six counts of second degree kidnapping,
seven counts of sexual assault, one count of first degree
burglary, one count of aggravated robbery, two counts of
robbery, two counts of felony menacing, one count of second
degree assault, one count of third degree assault, and eight

2

Applicant previously filed a habeas corpus action challenging his convictions and sentences in
the Denver County cases. See 13-cv-01436-LTB (D. Colo. Sept. 6, 2013).

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crime of violence counts.
Before sentencing, defendant filed identical pro se motions
to withdraw the guilty pleas under Crim. P. 32(d) in all six
cases, arguing that (1) the plea was not made knowingly,
intelligently, or voluntarily because plea counsel did not
properly advise him; (2) “he was unclear as to the elements
of the plea [and] the fact that he was taking a plea” because
he was on medication that altered his ability to comprehend;
(3) plea counsel was ineffective because she did not perform
an investigation; and (4) he had pleaded guilty under duress.
The district court appointed alternate defense counsel to
represent defendant, and counsel determined that there was
no legal basis to file the Crim. P. 32(d) motions. The district
court denied the Crim. P. 32(d) motions at the sentencing
hearing after giving defendant an opportunity to provide
additional evidence or statements to substantiate his claims.
He did not appeal the denial of those motions.
On February 19, 2010, the court sentenced defendant in
accordance with the stipulated sentences in the plea
agreements to a total of 120 years to life in the custody of
the Department of Corrections (DOC). The court also
revoked his community corrections sentence in case number
07CR307 and resentenced him to eight years in the custody
of the DOC, to be served concurrently with the 120-year
sentence.
On March 17, 2011, defendant filed identical pro se
postconviction motions under Crim. P. 35(a) and (c) in six of
the seven cases, asserting that:
!

!

Plea counsel was ineffective when she (1)
failed to conduct a thorough pretrial
investigation, (2) told him not to cooperate with
the presentence investigation and the sex
offender evaluation, (3) failed to object when
the court sentenced him without a sex offender
evaluation, (4) coerced him to plead guilty, (5)
failed to prepare for or present any witnesses
or mitigating evidence on his behalf at the
sentencing hearing, and (6) failed to file an
appeal;
Plea counsel was ineffective based on
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cumulative error;
!

Defendant was incompetent when he pleaded
guilty because he was taking “tranqu[i]lizing
medications” for depression and was unable to
reason, concentrate, or effectively exercise
judgment; and

!

The court erred when it sentenced him without
a sex offender evaluation..

The district court summarily denied defendant’s motions in a
single order. This appeal followed.
People v. Lollis, No. 11CA2093, slip op. at 1-4 (Colo. App. Oct. 25, 2012) (unpublished)
(ECF No. 13-10 at 2-5). The Colorado Court of Appeals affirmed the trial court’s order
denying the Rule 35(a) and (c) motions. See id. Mr. Lollis did not seek review in the
Colorado Supreme Court after the Colorado Court of Appeals affirmed the trial court’s
order.
Although not mentioned by the Colorado Court of Appeals, Mr. Lollis also filed in
the trial court a motion for sentence reconsideration pursuant to Rule 35(b) of the
Colorado Rules of Criminal Procedure in five of the six cases he is challenging. The
Rule 35(b) motion was filed on either April 18, 2010, or April 28, 2010. (See ECF No.
13-1 at 11 (05CR2314); ECF No. 13-2 at 9 (05CR2626); ECF No. 13-3 at 8
(05CR3084); ECF No. 13-4 at 8 (08CR511); ECF No. 13-5 at 8 (08CR517).) The trial
court denied the Rule 35(b) motion on May 13, 2010. (See ECF No. 13-1 at 10
(05CR2314); ECF No. 13-2 at 9 (05CR2626); ECF No. 13-3 at 8 (05CR3084); ECF No.
13-4 at 8 (08CR511); ECF No. 13-5 at 7-8 (08CR517).) Mr. Lollis did not appeal.
On May 14, 2010, Mr. Lollis filed in the trial court a motion for appointment of
counsel to assist him in preparing and filing a Rule 35(b) motion. (See ECF No. 13-7.)
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On January 31, 2011, the trial court denied the motion for appointment of counsel as
moot because the Rule 35(b) motion already had been filed and denied. (See ECF No.
13-8.)
Mr. Lollis initiated the instant action on October 11, 2013. He asserts the
following two claims for relief in the Application:
1.

Violation of due process because his guilty plea was involuntary.

2.

Ineffective assistance of counsel and violation of compulsory process
because counsel failed to investigate Mr. Lollis’ mental impairment claims
and obtain his mental health records.

Respondents first argue that the Application 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
the claim or claims presented could have been
discovered through the exercise of due
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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 the judgment of conviction became final. See 28 U.S.C. § 2244(d)(1)(A).
Respondents assert that Mr. Lollis’ conviction became final, and the one-year limitation
period began to run, on April 4, 2010, when the time expired to file a direct appeal
following his sentencing. As noted above, the Colorado Court of Appeals stated in the
order affirming the denial of Mr. Lollis’ postconviction Rule 35(c) motions that Mr. Lollis
was sentenced on February 19, 2010. (See ECF No. 13-10 at 3.) According to
Respondents, the state court docket sheet in each of the six cases Mr. Lollis is
challenging indicates he actually was sentenced on February 18, 2010.
Pursuant to the version of Rule 4(b) of the Colorado Appellate Rules applicable
at the time Mr. Lollis was sentenced in February 2010, he had forty-five days to file a
notice of appeal following his sentencing. Because Mr. Lollis did not file a notice of
appeal, Respondents are correct that the judgment of conviction became final when the
time to file a notice of appeal expired. Respondents also are correct that the forty-fifth
day after February 18, 2010, was April 4, 2010. However, because April 4, 2010, was a
Sunday, the time to file a notice of appeal extended until Monday, April 5, 2010, even if
Mr. Lollis was sentenced on February 18, 2010, as Respondents contend. See C.A.R.
26(a). Therefore, the Court finds that Mr. Lollis’ conviction became final on April 5,
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2010, when the time to file a direct appeal expired, regardless of whether he was
sentenced on February 18 or February 19, 2010. Mr. Lollis does not argue that his
conviction became final on some other date.
The Court also finds that the one-year limitation period began to run on April 5,
2010, because Mr. Lollis does not allege or argue 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 collateral review, and he knew or could have discovered the
factual predicate for his claims before his conviction became final. See 28 U.S.C. §
2244(d)(1)(B) - (D).
Mr. Lollis did not initiate this action within one year after April 5, 2010. Therefore,
the next question the Court must answer is whether the one-year limitation period was
tolled for any period 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).
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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
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.
Respondents concede that the one-year limitation period was tolled pursuant to §
2244(d)(2) while the postconviction Rule 35(b) motion Mr. Lollis filed was pending. The
Court will assume that the Rule 35(b) motion was filed on April 18, 2010. As noted
above, the Rule 35(b) motion was denied on May 13, 2010. Although Mr. Lollis did not
appeal the trial court’s orders denying the Rule 35(b) motion, the one-year limitation
period was tolled until June 28, 2010, when the forty-five day period to appeal expired.3
The Court agrees with Respondents that the one-year limitation period was not
tolled while the motion for appointment of counsel Mr. Lollis filed on May 14, 2010, was
pending because the motion for appointment of counsel did not assert any substantive
grounds for relief. See Pursley v. Estep, 216 F. App’x 733, 734 (10th Cir. 2007) (finding
that motions for appointment of counsel in postconviction proceedings pursuant to

3

The forty-fifth day after May 13, 2010, was Sunday, June 27, 2010. Therefore, the filing deadline
extended until Monday, June 28, 2010. See C.A.R. 26(a).

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Colorado Rule 35(c) that did not state adequate factual or legal grounds for relief did not
toll the one-year limitation period).
Respondents also concede that the one-year limitation period was tolled
pursuant to § 2244(d)(2) while the postconviction Rule 35(a) and (c) motions Mr. Lollis
filed on March 17, 2011, were pending. As noted above, the Colorado Court of Appeals
affirmed the trial court’s order denying the postconviction Rule 35(a) and (c) motions on
October 25, 2012. (See ECF No. 13-10.) Pursuant to Rule 52(b)(3) of the Colorado
Appellate Rules, Mr. Lollis then had forty-two days to seek certiorari review in the
Colorado Supreme Court but he did not do so. As a result, the Rule 35(a) and (c)
motion tolled the one-year limitation period until December 6, 2012, when the time to file
a petition for writ of certiorari to the Colorado Supreme Court with respect to those
motions expired.
To summarize, the one-year limitation period commenced on April 5, 2010, and
was tolled pursuant to § 2244(d)(2) from April 18, 2010, through June 28, 2010, while
the postconviction Rule 35(b) motion was pending, and again from March 17, 2011,
through December 6, 2012, while the postconviction Rule 35(a) and (c) motions were
pending. However, any period of time after April 5, 2010, that was not tolled counts
against the one-year limitation period. Thus, the 12 days after April 5, 2010, and before
April 18, 2010, count against the one-year limitation period as do the 261 days after
June 28, 2010, and prior to March 17, 2011. Together, the sum of these two periods of
untolled time is 273 days. Therefore, when the one-year limitation period began to run
again after the state court postconviction proceedings concluded on December 6, 2012,
only 92 days (365 - 273 = 92) remained. In the absence of any further tolling, the one9

year limitation period expired in March 2013 and the instant action, which was not
commenced until October 11, 2013, is time-barred.
The one-year limitation period in § 2244(d) is not jurisdictional and may be tolled
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. Lollis fails to present any argument that would justify equitable tolling of the
one-year limitation period. Therefore, the Court finds no basis for equitable tolling and
the Application will be denied as time-barred. Because the Court finds that the entire
action is untimely, the Court need not address Respondents’ additional argument that
the claims also are unexhausted or procedurally defaulted.
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 $505
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.
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P. 24. Accordingly, it is
ORDERED that the Application (ECF No. 1) is denied and the action is dismissed
because the Application is untimely. 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
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 21st day of

January

, 2014.

BY THE COURT:

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

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