Hackborn v. Falk 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 2/19/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02943-BNB
DEAN D. HACKBORN,
Applicant,
v.
JAMES FALK, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Dean D. Hackborn, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) currently incarcerated at the correctional facility in
Sterling, Colorado. Mr. Hackborn filed pro se on November 21, 2013, an amended
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 4)
challenging the validity of his conviction in Case No. 05CR516 in the District Court of
Douglas County, Colorado. He has paid the $5.00 filing fee for a habeas corpus action.
On November 22, 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). ECF No. 4. On January 9, 2014, after being granted an
extension of time, Respondents submitted their pre-answer response (ECF No. 11). Mr.
Hackborn has not filed a reply to the pre-answer response, although he was given the
opportunity to do so.

The Court must construe Mr. Hackborn’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.
On February 6, 2006, Mr. Hackborn pleaded guilty in Douglas County District
Court Case No. 05CR516 to a single, nonaggravated count of sexual assault on a child.
ECF No. 11, ex. A at 8. On April 7, 2006, he was sentenced to an indeterminate term of
four years to life in the DOC. ECF No. 11, ex. A at 7-8. Mr. Hackborn did not appeal
directly from his conviction and sentence.
On July 31, 2006, he filed a motion for reduction of sentence pursuant to Rule
35(b) of the Colorado Rules of Criminal Procedure. ECF No. 11, ex. A at 7. He also
filed two other postconviction motions, the first on December 8, 2010, for dismissal of
charges, ECF No. 11, ex. A at 7, and the second on March 1, 2011, to withdraw his
plea. ECF No. 11, ex. A at 6. All three motions were denied. The Rule 35(b) motion
was denied on February 1, 2007. ECF No. 11, ex. A at 7. The motion for dismissal of
charges was denied on January 7, 2011. ECF No. 11, ex. A at 7. The motion to
withdraw his plea was denied on April 1, 2011. ECF No. 11, ex. A at 6. Mr. Hackborn
did not appeal from the denials.
Mr. Hackborn alleges he previously filed a habeas corpus application that was
“abated.” ECF No. 4 at 4. However, he fails to provide a docket number, and a search
of the Court’s case management-electronic case filing system (CM-ECF) reveals no
record of such a case.
2

In the amended application, Mr. Hackborn asserts three claims:
(1)

That he was denied “due process and a fair trial.” In support of
claim one, Mr. Hackborn alleges, “My name was changed on legal
documents and in the same breath uncounseled I was proceeded
against without notice of the accusations against me,” ECF No. 4
at 5 (internal parentheses omitted);

(2)

That he was denied “equal protection.” In support of claim two Mr.
Hackborn alleges, “I was denied my right to subpoena witnesses
against me,” id. at 6; and

(3)

Claim three, entitled “Denial of being Not Guilty,” simply requests
the appointment of counsel. Id. at 6.

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.
3

(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. Hackborn’s criminal case became final. The
sentence in Mr. Hackborn’s criminal case was entered on April 7, 2006, when he was
sentenced to an indeterminate term of four years to life in the DOC. Because Mr.
Hackborn did not file a direct appeal, the Court finds that his conviction became final on
May 22, 2006, forty-five days after he was sentenced. See Colo. App. R. 4(b)
(subsequently amended and adopted December 14, 2011, effective July 1, 2012, to
allow forty-nine days for appeal). Therefore, the one-year statute of limitations began to
run on May 22, 2006, when the time to appeal to the state appeals court expired.
The Court next must determine whether any of Mr. Hackborn’s state court
postconviction proceedings tolled the one-year limitation period. Pursuant to §
2244(d)(2), a properly filed state court post-conviction motion tolls the one-year
limitation period while the motion is pending. The issue of whether a post-conviction
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
4

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.
Here, the limitations period ran for 70 days before Mr. Hackborn filed his Colo. R.
Crim. P. 35(b) motion for reduction of sentence on July 31, 2006. The Rule 35(b)
motion was denied on February 1, 2007. Mr. Hackborn did not appeal from the denial,
and the time for appealing expired forty-five days later on March 18, 2007. The
limitations period ran uninterrupted for the 295 days that remained and expired on
January 7, 2008. Mr. Hackborn did not file another postconviction motion – the motion
for dismissal of charges – until December 8, 2010, which was 1,066 days after the oneyear limitation period expired. The motion failed to toll the limitations period because it
was filed after the limitations period expired. See Clark v. Oklahoma, 468 F.3d 711, 714
(10th Cir. 2006). (“Only state petitions for post-conviction relief filed within the one year
allowed by [the Antiterrorism and Effective Death Penalty Act of 1996] [(]AEDPA[)] will
toll the statute of limitations.”). Therefore, the application is untimely.
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.

5

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. Hackborn bears the burden of demonstrating that equitable tolling
is 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
6

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,
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. Hackborn 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. Hackborn 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
7

ORDERED that the application 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
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

19th day of

February

, 2014.

BY THE COURT:

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

8