Gordon v. Faulk et al

Filing 23

ORDER Of Dismissal. The second and final amended habeas corpus application (ECFNo. 8 ) is denied and the action is dismissed. No certificate of appealability will issue. Leave to proceed in forma pauperis on appeal is denied without prejudice. Any pending motions are denied as moot. By Judge Lewis T. Babcock on 5/7/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00371-BNB
LARRY GORDON,
Applicant,
v.
FRANCIS FALK, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Larry Gordon, is a prisoner in the custody of the Colorado Department
of Corrections at the correctional facility in Limon, Colorado. On March 5, 2014, Mr.
Gordon filed pro se a second and final amended Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 8). He is challenging the validity of his
conviction in Denver District Court Case No. 93CR1055. Mr. Gordon has been granted
leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On March 10, 2013, Magistrate Judge Boyd N. Boland entered an order (ECF
No. 10) directing 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 March 28, 2014, after being
granted an extension of time, Respondents submitted their pre-answer response (ECF
No. 18). On April 21, 2014, Mr. Gordon submitted a reply (ECF No. 22).
The Court must construe Mr. Gordon’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.
Mr. Gordon was convicted on October 29, 1993, by a jury in Denver District Court
Case No. 93CR1055 of second-degree burglary, second-degree kidnapping, and thirddegree assault. ECF No. 18, ex. A (state register of actions) at 12-13. On December
17, 1993, the trial court sentenced him to 12 years for second-degree burglary, 8 years
for second-degree kidnapping, and 2 years for third-degree assault, to be served
concurrently. ECF No. 18, ex. A at 13. Although these sentences would have expired
had they been Mr. Gordon’s only sentences, they are consecutive to those imposed in
other cases and, under Colorado law, he remains in custody on these convictions. See
Colo. Rev. Stat. § 17-22.5-101 (“[When any inmate has been committed under several
convictions with separate sentences, the [Colorado Department of Corrections] shall
construe all sentences as one continuous sentence.”).
Mr. Gordon appealed directly from his convictions and sentences, arguing only
the sufficiency of the evidence. ECF No. 18, ex. L (appellant’s opening brief). On May
25, 1995, the Colorado Court of Appeals affirmed. ECF No. 18, ex. K (People v.
Gordon, No. 94CA0005 (Colo. Ct. App. May 25, 1995)). On November 14, 1995, the
Colorado Supreme Court denied certiorari review. ECF No. 18, ex. I. On October 7,
1996, the United States Supreme Court denied certiorari review. ECF No. 18, ex. H.
On January 25, 1996, while his certiorari petition was pending in the United
States Supreme Court, Mr. Gordon filed a motion for sentence reconsideration pursuant
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to Rule 35(b) of the Colorado Rules of Criminal Procedure, which the trial court denied
without a hearing on March 8, 1996. ECF No. 18, ex. A at 8. On December 16, 1997,
Mr. Gordon filed the first of four motions to disqualify the trial judge, as well as an
affidavit in support of the first motion to disqualify. ECF No. 18, ex. A at 7. On January
8, 1998, he filed a second motion for the judge’s recusal and supporting affidavit. ECF
No. 18, ex. A at 7. On January 26, 1998, he filed a petition for writ of error coram nobis,
ECF No. 18, ex. A at 7, which the trial court dismissed on February 10, 1998. ECF No.
18, ex. A at 7. On March 10, 1998, he filed a petition for rehearing, which was denied
on March 18, 1998. ECF No. 18, ex. A at 7.
Although Mr. Gordon filed a number of postconviction motions after March 18,
1998, including a third motion to disqualify the judge on March 23, 1998 (ECF No. 18,
ex. A at 7), and a fourth such motion on October 2, 2012 (ECF No. 18, ex. A at 5-6), it is
unnecessary for the Court to address any of these postconviction motions except
Applicant’s motions filed on August 9, 2012, and September 7, 2012, to set aside
judgment and sentence, and to issue a subpoena, all of which the trial court denied on
September 7, 2012. ECF No. 18, ex. A at 6. Mr. Gordon did not timely appeal or seek
rehearing. On November 29, 2012, the requests for disqualification of the trial judge
were denied. ECF No. 18, ex. A at 5. Mr. Gordon did not appeal.
On December 17 and 20, 2013, Mr. Gordon filed petitions for rehearing (ECF No.
18, ex. A at 5), but the rulings for which he sought rehearing are unclear . On January
3, 2013, the trial court denied the petitions. ECF No. 18, ex. A at 5. On January 18,
2013, Mr. Gordon initiated an appeal in the Colorado Court of Appeals. ECF No. 18, ex.
A at 5.
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After Mr. Gordon filed an opening brief approximately on January 29, 2013 (ECF
No. 18, ex. G at 13), the Colorado Court of Appeals on March 11, 2013, entered an
order (ECF No. 18, ex. F) in which it noted Mr. Gordon appeared to be appealing from
orders that denied the petitions for rehearing but “did not rule upon the actual merits of
any substantive postconviction claim.” ECF No. 18, ex. F at 2. Because orders denying
rehearing petitions would be nonfinal and nonappealable, the Colorado Court of
Appeals directed Mr. Gordon to show cause why the appeal should not be dismissed.
ECF No. 18, ex. F at 3.
Mr. Gordon’s response to the show-cause order (ECF No. 18, ex. E) failed to
satisfy the Colorado Court of Appeals. On April 11, 2013, the state appeals court
entered an order dismissing the appeal for lack of “a final order . . . from which an
appeal may be taken.” ECF No. 18, ex. D at 2. Mr. Gordon then filed “Interlocutory
Appeals” in the Colorado Supreme Court (ECF No. 18, ex. C at 3-6), which the state
supreme court treated as a petition for writ of certiorari from the April 11, 2013, state
appeals court order (ECF No. 18, ex. C), and on January 27, 2014, denied the certiorari
petition. ECF No. 18, ex. B at 2.
On February 7, 2014, Mr. Gordon filed his original habeas corpus application
(ECF No. 1) in this Court. On February 24, 2014, he filed an amended application (ECF
No. 5), and on March 5, 2014, he filed the second and final amended application (ECF
No. 8).
In the second and final amended habeas corpus application, Mr. Gordon asserts
two claims verbatim as follows:
1.

Denied due process: On July 4, 1992, Petitioner was
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arrested on (DUI) and stalking in the State of Nebraska, and
only advised of those charges on the 6th of July 1992, first
appearance, held for 37 days without counsel to obtain a
confession or other evidence[,] an unnecessary delay in
presentment in violation of criminal procedure Rule 5(a);
(quote, Riverside v. McLaughlin, 500 U.S. 44, 111, S.Ct.
1661, 114 L.Ed.2d 49 (1991) (quoting, Torres v. Supt. of
Police, 893 F.2d 404, 410 (1st Cir. 1990); don’t know my
rights as explained to me. ECF No. 8 at 5.
2.
Denied Equal Protection as enjoyed by white citizens:
That Petitioner was denied equal treatment as other inmates
held in custody of the County Jail, the State of Colorado,
Petitioner was return to Colorado to be subjected to torture
(quoting, F.S. Rayster Guano Co. v. Virginia, 253 U.S. 412,
415, 40 S.Ct. 560, 561-62, 64 L.Ed. 989 (1920); New York
City Transit Authority v. Beazer, 440 U.S. 568, 587, 99 S.Ct.
1355, 1367, 59 L.Ed.2d 587 (1979). ECF No. 8 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
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(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
when the judgment of conviction in Mr. Gordon’s criminal case became final. Generally,
a conviction becomes final “after the United States Supreme Court has denied review of
a decision by the state court of last resort, or, if no petition for certiorari is filed, after the
time for filing a petition for certiorari with the Supreme Court has passed.” Locke v.
Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001); see also Sup. Ct. R. 13(1). Here, the
Colorado Supreme Court denied certiorari review in Mr. Gordon’s direct appeal of his
criminal conviction on November 14, 1995. On October 7, 1996, the United States
Supreme Court denied certiorari review. As a result, Mr. Gordon’s conviction became
final on October 7, 1996, when the Supreme Court denied a petition for a writ of
certiorari. Gonzalez v. Thaler, 132 S. Ct. 641, 653-54 (2012); Locke, 237 F.3d at 1273.
The one-year limitation period for purposes of § 2244(d) began to run on October 7,
1996, the date that direct appeal concluded. See Holland v. Florida, 130 S. Ct. 2549,
2555 (2010).
The Court next must determine whether Mr. Gordon’s state court postconviction
motions tolled the one-year limitation period. Pursuant to § 2244(d)(2), a properly filed
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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 postconviction application, the limitation period is tolled during the period in which the
petitioner could have sought an appeal under state law.” Gibson, 232 F.3d at 804.
The one-year period of limitation ran for 435 days from October 7, 1996, when
the United States Supreme Court denied certiorari review, to December 16, 1997, when
Mr. Gordon filed his first postconviction motion, i.e., the first of four motions to disqualify
the trial judge. Mr. Gordon had no “properly filed” motion for postconviction relief
pending during the period from October 7, 1996, until October 7, 1997, when the oneyear limitation period expired. The December 16, 1997, motion failed to toll the
limitation period for two reasons. First, the motion was filed after the limitation period
expired on October 7, 1997. 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.”). Secondly, the December 16, 1997, motion did not seek
postconviction review “with respect to the pertinent judgment or claim for relief.” 28
U.S.C. 2244(d)(1). Rather, it sought recusal of the trial judge, not a decision on the
merits. See, e.g., Woodford v. Garceau, 538 U.S. 202, 207 (2003) (holding that a
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motion requesting postconviction counsel that does not state any factual or legal
grounds for relief as required by Rule 35(c) is not a properly filed application for §
2244(d) purposes because it does not call for a decision on the merits); see also May v.
Workman, 339 F.3d 1236, 1237 (10th Cir. 2003) (postconviction motions for transcripts
and petitions for writs of mandamus relating to those motions do not toll the one-year
time bar) (citing Osborne v. Boone, 176 F.3d 489 (10th Cir. 1999) (unpublished)
(“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 § 2244(d)(2)”)
(citing Hoggro, 150 F.3d at 1226-27.
None of Mr. Gordon’s subsequent postconviction filings tolled the limitation
period because they, too, postdated the expiration of the limitation period. See Clark,
468 F.3d at 714. Therefore, this habeas corpus action, initiated on February 7, 2014, 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.
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,
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141 F.3d at 978). Mr. Gordon 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
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
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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. Gordon 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. The action is barred by the one-year limitation period.
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. Gordon 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 second and final amended habeas corpus application (ECF
No. 8) is denied and the action is dismissed as barred by the one-year limitation period
in 28 U.S.C. § 2244(d). It is

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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 7th day of

May

, 2014.

BY THE COURT:

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

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