Maxsween v. Miller et al

Filing 32

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/27/14. 23 Motion Correcting an Error in Applicant's Reply Brief is granted, 17 Motion for the Appointment of Counsel is denied as moot, and no certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00166-BNB
MICHAEL FRANCIS MAXSWEEN,
Applicant,
v.
MICHAEL MILLER, Superintendent, Crowley County Correctional Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Michael Francis Maxsween, is a prisoner at the Crowley County
Correctional Facility in Olney Springs, Colorado. Mr. Maxsween filed pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 4)
challenging the judgment of conviction imposed by the Mesa County District Court in
case number 00CR115.
On May 14, 2014, 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. After Judge Boland granted an extension of time to file a response,
Respondents filed their Pre-Answer Response (ECF No. 18) arguing that the application
is untimely and the claims are procedurally defaulted. Judge Boland granted an
extension of time to reply to the Pre-Answer Response, and Mr. Maxsween filed a Reply

(ECF No. 21). On July 29, 2014, Judge Boland ordered Respondents to supplement
the Pre-Answer Response. (See ECF No. 22.) Judge Boland granted an extension of
time, and Respondents filed their Supplement to Pre-Answer Response (ECF No. 26).
Judge Boland granted two extensions of time to reply to the Supplement, and Mr.
Maxsween filed his Reply to the Supplemented Pre-Answer Response (ECF No. 31) on
October 16, 2014.
The Court must construe Mr. Maxsween’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 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 barred by the one-year limitation period
under 28 U.S.C. § 2244(d).
I. Background
On July 8, 2002, Mr. Maxsween was convicted by a jury of sexual assault on a
child, sexual assault on a child while in a position of trust, and sexual assault on a child
as part of a pattern of abuse. (See ECF No. 18-4 at 4.) The state district court imposed
indeterminate sentences of six years to life, four years to life, and ten years to life, to be
served concurrently. (ECF No. 18-1 at 18-19.)
On May 27, 2004, the Colorado Court of Appeals affirmed the judgment but
vacated the sentence and remanded for resentencing. (ECF No. 18-4 at 4, 20-22.) On
May 26, 2005, the state district court resentenced Mr. Maxsween to concurrent
sentences of eight years to life, two years to life, and eight years to life. (ECF No. 18-1
at 16.) Mr. Maxsween did not appeal.
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On January 11, 2006, Mr. Maxsween filed a motion for postconviction relief under
Colo. Crim. P. 35(c). (ECF No. 18-1 at 15; ECF No. 18-9 at 2.) On August 14, 2006,
the state district court denied the motion. (ECF No. 18-1 at 14.) Mr. Maxsween then
filed a motion purportedly pursuant to Colo. R. Civ. P. 60(b) on December 27, 2006.
(Id.) The state district court treated the motion as a Rule 35(c) motion, denied as
successive all the claims Mr. Maxsween had previously raised in his first postconviction
motion, and denied the two new claims – that he was entitled to a proportionality review
of his sentence and that he could not be sentenced under the Colorado Sex Offender
Lifetime Supervision Act of 1998 – on the merits. (ECF No. 18-9 at 2-3.)
On March 22, 2007, Mr. Maxsween filed a notice of appeal, challenging the state
district court’s orders denying his January 2006 motion and his December 2006 motion.
(ECF No. 18-1 at 13; ECF No. 18-7.) On May 22, 2008, the Colorado Court of Appeals
dismissed the appeal of the January 2006 postconviction motion as untimely, and
affirmed the state district court’s order denying his December 2006 motion because the
motion was properly treated as a postconviction motion and Mr. Maxsween’s claims
were successive because they either were or could have been raised in his first motion.
(ECF No. 18-9 at 3-4.) The Colorado Supreme Court denied certiorari review on
September 2, 2008. (ECF No. 18-11.)
From September 17, 2008, through May 11, 2010, Mr. Maxsween filed numerous
documents with the state district court, including letters of inquiry, a “Notice . . . of Fault
and Opportunity to Cure and Contest Acceptance,” an “Affidavit of Notice of Dishonor
Default and of Res Judicate,” and a “Notice/Conditional Acceptance and Demand in
Admiralty.” (See ECF No. 18-1 at 11-13.) The state district court denied all of these
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requests, finding that it was “under no legal obligation to respond to interrogatories or
offer legal opinions when nothing is pending before the court,” and that the filings had
no legal basis and were largely nonsense. (Id.)
On June 14, 2010, Mr. Maxsween filed a motion for appointment of conflict-free
counsel in postconviction proceedings and a motion for free transcripts. (ECF No. 18-1
at 11.) The court denied both motions. (Id.) Mr. Maxsween and his parents continued
to file several documents with the state district court. (Id.)
On April 20, 2011, Mr. Maxsween filed a motion for postconviction relief under
Colo. Crim. P. 35(a), a motion for postconviction relief under Colo. Crim. P. 35(c), and a
request for counsel. (ECF No. 18-1 at 10-11; ECF No. 18-13 at 3.) On June 9, 2011,
the state district court denied both postconviction motions but granted Mr. Maxsween’s
request for counsel for purposes of appeal. (ECF No. 18-1 at 10; ECF No. 18-13 at 4.)
On April 25, 2013, the Colorado Court of Appeals affirmed the state district court’s order
denying his postconviction motions. (ECF No. 18-13.) On December 9, 2013, the
Colorado Supreme Court denied certiorari review. (ECF No. 18-15).
Mr. Maxsween initiated the instant action on January 21, 2014, by submitting a
“Motion for Leave to File for Extension of Time.” (ECF No. 1.) On March 25, 2014, Mr.
Maxsween filed his § 2254 Application. (See ECF No. 4.) He asserts the following six
claims:
(1) Applicant’s due process rights were violated because the charging
document failed to provide fair notice;
(2) Applicant’s constitutional right against double jeopardy was violated
because he was charged with multiplicity in the charging document and
found guilty for the same conduct and incident;

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(3) Applicant was deprived of the right to a full and fair sentencing hearing;
(4) Applicant’s constitutional rights were violated when the postconviction
court erroneously denied appointment of postconviction counsel when his
claims had arguable merit;
(5) Applicant’s constitutional rights were violated when the postconviction
court erroneously denied his right to an evidentiary hearing; and
(6) Applicant’s due process rights and equal protection rights were
violated when the postconviction court erroneously denied his motions for
postconviction relief as successive.
(ECF No. 4 at 19-26.)
On June 6, 2014, Mr. Maxsween filed a “Motion for the Appointment of Counsel”
(ECF No. 17) and a supplement to his § 2254 Application (ECF No. 16) adding the
following claims:
(7) ineffective assistance of trial counsel by failing to: (a) introduce a taped
conversation between applicant’s father and the victim’s mother; (b) admit
the victim’s prior false allegations of sexual assault; (c) call witnesses to
provide exculpatory testimony; (d) investigate; (e) provide the court with a
proper theory of defense instruction; (f) object to the jury instructions; (g)
protect applicant’s double jeopardy rights on counts two and five; (h)
protect applicant from being convicted on the pattern count; (I) forward a
theory of mens rea; (j) provide a proper unanimity instruction; (k) object to
the multiplicity of the charging document; (l) “challenge the ex post facto
charge”; (m) “investigate and call witnesses and . . . interview the alleged
victim or their witnesses”; (n) provide expert psychological testimony; (o)
“challenge surcharges”; (p) demand a victim impact statement; (q) object
to errors in the presentence report or obtain a new report; (r) subpoena
the report’s author; (s) familiarize himself with state sentencing law; and (t)
make a proper offer of proof on the victim’s alleged false report of sexual
abuse;
(8) ineffective assistance of direct appeal counsel by failing to disclose
that he could not raise a claim of ineffective assistance of trial counsel;
(9) errors in the jury instructions and verdict forms resulted in an
unconstitutional conviction and sentence; and
(10) prosecutorial misconduct and malicious prosecution.
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(ECF No. 16.)
II. Timeliness
Respondents first argue that this habeas corpus action is untimely pursuant to
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;
© 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).
In order to apply the one-year limitation period, the Court first must determine the
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date on which the judgment in Mr. Maxsween’s criminal case became final. See 28
U.S.C. § 2244(d)(1)(A). Respondents assert that the judgment became final, and the
one-year limitation period began to run on July 11, 2005,1 when the time expired to
appeal the May 26, 2005 sentence. (ECF No. 18 at 7.) In his Reply, Mr. Maxsween
alleges that the sentencing court failed to advise him of his constitutional right to appeal
his sentence pursuant to Colo. Crim. P. 32(c) at the resentencing hearing on May 26,
2005. Mr. Maxsween argues that, therefore, the time for filing an appeal never
commenced, that his judgment of conviction has not yet become final, and his habeas
application is not time-barred. (ECF No. 21 at 1-2.) In the July 29, 2014 Order to File
Supplement to Pre-Answer Response, Judge Boland identified this argument and
directed Respondents to supplement their time-bar argument. In the Supplement,
Respondents contend that Mr. Maxsween’s argument is unavailing. First, Respondents
assert that Mr. Maxsween is not entitled to the benefit of the non-finality rule in Jimenez
v. Quarterman, 555 U.S. 113 (2009), because Mr. Maxsween never sought to reopen
direct review following his May 2005 resentencing. (See ECF No. 26 at 3-6.)
In Jimenez, the United States Supreme Court held:
[W]here a state court grants a criminal defendant the right to file an out-oftime appeal during collateral review, but before the defendant has first
sought federal habeas relief, his judgment is not yet “final” for purposes of
§ 2244(d)(1)(A). In such a case, “the date on which the judgment became
final by the conclusion of direct review” must reflect the conclusion of the
out-of-time direct appeal, or that expiration of the time for seeking review
of that appeal.
Id. at 121. However, “the possibility that a state court may reopen direct review ‘does

1

The forty-fifth day after May 26, 2005, was Sunday, July 10, 2005. Therefore, the filing
deadline extended until Monday, July 11, 2005. See Fed. R. Civ. P. 6(a)(1) & (6).

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not render convictions and sentences that are no longer subject to direct review
nonfinal.’” Id. at 120 n.4 (emphasis added). Rather, it is only where a state court
actually reopens direct review before the petitioner files his federal habeas petitioner
that the order granting an out-of-time appeal restores the pendency of the reopened
appeal and the conviction is no longer final for purposes of § 2244(d)(1)(A). Id.
Here, Mr. Maxsween did not request a new appeal, the state courts did not grant
Mr. Maxsween leave to file an untimely appeal, and the nonfinality rule established in
Jimenez does not apply. Thus, as a threshold matter and outside of any exceptions, the
initial “conclusion of direct review or the expiration of the time for seeking such review,”
28 U.S.C. § 2244(d)(1)(A), in Mr. Maxsween’s case was July 11, 2005. Under the
“anniversary method,” the one-year limitations period would have begun running the
next day, July 12, 2005, and, absent any tolling, would have ended on July 12, 2006.
See United States v. Hurst, 322 F.3d 1256, 1260–61 (10th Cir. 2003). The instant
petition was filed in 2014, nearly eight years after the limitations period would have
expired under the latter sequence.
Construing Mr. Maxsween’s argument liberally, Mr. Maxsween also attempts to
rely on 28 U.S.C.§ 2244(d)(1)(B) to establish the event that triggers commencement of
the one-year limitations period. Under § 2244(d)(1)(B), the one-year period begins on
“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.” Mr. Maxsween contends that the state
district court’s failure to advise him of his appeal rights at resentencing constitutes a
state-created impediment that prevented him from timely filing his federal habeas
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application. (See ECF No. 21 at 1-4; ECF No. 31 at 1-9.) Respondents argue that Mr.
Maxsween cannot establish (a) that the impediment violated the Constitution or laws of
the United States; or (b) that the impediment prevented him from filing his habeas
application. (See ECF No. 26 at 6-11.)
First, other courts have held that a state court’s failure to advise a defendant of
his appeal rights is not a state-created impediment to filing a federal habeas petition.
See Miller v. Cason, 49 Fed. Appx. 495, 497 (6th Cir. 2002) (unpublished); Steward v.
Moore, 555 F. Supp.2d 858, 871-72 (N.D. Ohio 2008).
Moreover, even assuming that the resentencing court’s failure to advise Mr.
Maxsween of his appeal rights was a state-created impediment and that the failure to
advise violated the Constitution, Mr. Maxsween fails to demonstrate that the failure to
advise him of his rights actually prevented him from filing the instant action. See Irons
v. Estep, 291 Fed. Appx. 136, 138 (10th Cir. 2008) (unpublished) (state-created
impediment “requires both that the state action constituting the impediment violate the
Constitution and prevent the petitioner from filing his claim”); see also Williams v. Estep,
259 Fed. Appx. 69, 71 (10th Cir. 2007) (unpublished) (finding that petitioner did not
identify a causal link between the alleged state-created impediment and his inability to
file a habeas petition within the appropriate time period); Peterson v. McDonough, No.
06-cv-664-T-30TGW, 2007 WL 1079996, at * 2 (M.D. Fla. Apr. 9, 2007) (unpublished)
(finding that failure of the trial court to advise defendant of his right to appeal did not, of
itself, prevent defendant from filing timely habeas petition). Moreover, it is not enough
to claim that the alleged impediment caused the application to be untimely. See
Kerchee v. Jones, 428 Fed. Appx. 851, 856-57 (10th Cir. 2011) (unpublished)
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(allegation that the unavailability of rehearing in state court prevented petitioner from
filing federal habeas application did not “comport with the fact that Mr. Kerchee has
already filed a habeas petition, albeit an untimely one.”) (emphasis added). Rather, the
alleged impediment must prevent the habeas application from being filed.
Here, Mr. Maxsween only contends that he was prevented from appealing his
new sentence in state court, but he does not demonstrate how the alleged violation of
Colo. Crim. P. 32(c) prevented him from filing his federal habeas application. Mr.
Maxsween in fact filed his application despite the state court’s alleged impediment and
thus, was not prevented from filing his § 2254 Application. Therefore, Mr. Maxsween
cannot trigger a later onset of the one-year limitations period pursuant to 28 U.S.C. §
2244(d)(1)(B).
Accordingly, the Court finds that the conclusion of direct review or the expiration
of time for seeking such review was July 11, 2005, and that the one-year limitation
period began to run on July 12, 2005. Mr. Maxsween did not initiate this action within
one year after July 12, 2005. Therefore, the next question the Court must answer is
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 oneyear 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,
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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
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.
As noted above, on January 11, 2006, Mr. Maxsween filed a postconviction
motion, which tolls the one-year limitation period under § 2244(d)(2). Thus, the oneyear limitation period was tolled from January 11, 2006, through September 2, 2008,
when the Colorado Supreme Court denied certiorari review. However, the 182 days
between July 12, 2005, and January 10, 2006, count against the one-year limitation
period. Thus, when the one-year limitation period began to run again on September 3,
2008, only 183 days remained (365 - 182 = 183).
Beginning on September 3, 2008, the remaining 183 days ran unabated until the
one-year limitation period expired on March 4, 2009. Because the one-year limitation

11

period expired before Mr. Maxsween filed his second and third motions for
postconviction relief on April 20, 2011, these motions did not toll 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). Moreover, even if the Court found
that Mr. Maxsween’s motions for appointment of counsel in postconviction proceedings
and for free transcripts were considered properly filed state court postconviction
motions, the motions were filed on June 14, 2010, which was fifteen months after the
one-year limitation period expired.
Finally, the only two documents Mr. Maxsween filed between September 3, 2008,
and March 4, 2009, were a letter of inquiry filed September 17, 2008, and an “Affidavit
by Notice of Memorandum of Record Notice Release of Sureties” filed October 27,
2008. (See ECF No. 18-1 at 12-13.) Neither document appears to provide any
substantive grounds for postconviction relief. See, e.g., May v. Workman, 339 F.3d
1236, 1237 (10th Cir. 2003) (finding that postconviction motions for transcripts and
petitions for writs of mandamus relating to those motions do not toll the one-year
limitation period pursuant to § 2244(d)(2)); Pursley v. Estep, 216 F. Appx. 733, 734
(10th Cir. 2007) (unpublished) (finding that motions for appointment of counsel in
postconviction proceedings pursuant to Colorado Rule 35(c) that did not state adequate
factual or legal grounds for relief did not toll the one-year limitation period); Osborne v.
Boone, No. 99–7015, 1999 WL 203523 at *1 (10th Cir. Apr. 12, 1999) (unpublished)
(stating that “attempts to obtain trial records and transcripts at public expense are not
collateral proceedings which would result in the tolling of the filing period under §
12

2244(d)(2)”). Accordingly, neither document can be considered a properly filed
postconviction motion that tolls the one-year limitation period. Therefore, the instant
action is time-barred 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
for equitable reasons. Holland v. Florida, 560 U.S. 631, 649 (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).
Finally, equitable tolling is available “only in rare and exceptional circumstances.” See
Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008).
Mr. Maxsween argues that he is entitled to equitable tolling due to the
resentencing court’s failure to advise him of his right to appeal. Even assuming Mr.
Maxsween has been pursuing his rights diligently, the Court is not persuaded that Mr.
Maxsween is entitled to equitable tolling of the one-year limitation period based on the
failure to advise Mr. Maxsween of his appellate rights. See e.g., Johnson v. Keith, No.
5:12-cv-2134, 2014 WL 940337, at *3 (W.D. La. Feb. 27, 2014) (finding that failure of
trial judge or counsel to advise applicant of right to appeal resentencing on remand
13

does not amount to an extraordinary circumstances warranting the application of
equitable tolling).
Mr. Maxsween also claims he is actually innocent. To warrant tolling, however,
claims of actual innocence must be supported 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).
Mr. Maxsween sets forth no evidence that meets this standard.
For these reasons, the Court finds no basis for equitable tolling in this action.
Therefore, the action will be dismissed as barred by the one-year limitation period.
Because the Court finds that the action is untimely, the Court need not address
Respondents’ argument that Mr. Maxsween’s claims also are procedurally defaulted.
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. P. 24.
Accordingly, it is
ORDERED that the habeas corpus application (ECF No. 4) is denied and the
action is dismissed as barred by the one-year limitation period. It is
FURTHER ORDERED that the Motion Correcting an Error in Applicant’s Reply
Brief (ECF No. 23) is granted as the Court considered the correction in reaching its
decision. It is
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FURTHER ORDERED that the Motion for the Appointment of Counsel (ECF No.
17) is denied as moot. 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 27th

day of

October

, 2014.

BY THE COURT:

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

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