Whatley v. No Named Respondent

Filing 25

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/4/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01818-GPG
DARIN WHATLEY,
Applicant,
v.
TRAVIS TRANI, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Darin Whatley, is a prisoner in the custody of the Colorado
Department of Corrections currently incarcerated at the Centennial Correctional Facility.
Mr. Whatley has filed pro se an amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 7). He is challenging the validity of his
conviction and sentence in Pueblo County District Court case number 03CR863.
On August 26, 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 being granted an extension of time, Respondents filed, on September
30, 2014, their Pre-Answer Response (ECF No. 14) arguing that the application is
untimely and that claims one, two, and seven are procedurally defaulted. After being
granted three extensions of time, Mr. Whatley filed his Reply (ECF No. 22).

The Court must construe the Application and other papers filed by Mr. Whatley
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.
A jury convicted Mr. Whatley of two counts of second degree kidnapping, three
counts of sexual assault, and two counts of aggravated robbery. (See ECF No. 14-13
at 2.) The trial court sentenced Mr. Whatley to concurrent forty-eight year sentences on
the kidnapping charges, concurrent thirty-two year sentences on the robbery charges
that ran consecutive to the kidnapping charges, and ninety-six years to life on each of
the three counts of the sexual assault charges, which ran consecutive to the kidnapping
and robbery charges. The judgment of conviction and sentences as to one of the
kidnapping charges, one of the robbery charges, and two of the sexual assault charges
were vacated, concluding that those counts should have been merged with the other,
similar counts. See People v. Whatley, No. 05CA0351 (Colo. App. Feb. 14, 2008)
(unpublished) (ECF No. 14-9 at 24). The judgment and sentences were affirmed in all
other respects on direct appeal. Id. On June 26, 2008, the Colorado Supreme Court
denied Mr. Whatley’s petition for writ of certiorari on direct appeal. (See ECF Nos. 1411 and 14-1 at 10.)
On December 17, 2008, Mr. Whatley filed in the trial court a postconviction
motion pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure seeking a
reduction of sentence. (See ECF No. 14-1 at 10.) Mr. Whatley then filed a
postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal
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Procedure on March 23, 2010, which the trial court denied on March 29, 2010. (Id. at 910). On July 12, 2011, Mr. Whatley filed a petition for postconviction relief pursuant to
Rule 35(c) of the Colorado Rules of Criminal Procedure. (Id. at 9.) On July 20, 2011,
the trial court denied both the Rule 35(b) motion and Rule 35(c) petition. (Id.) Mr.
Whatley appealed the denial of the Rule 35(c) petition and the order was affirmed on
April 11, 2013 by the Colorado Court of Appeals. See People v. Whatley No.
11CA1811 (Colo. App. April 11, 2013) (unpublished) (ECF No. 14-13). Mr. Whatley did
not file a petition for rehearing or seek review in the Colorado Supreme Court. The
mandate was issued on August 27, 2013.
Mr. Whatley initiated the instant action on June 26, 2014 by filing a letter
requesting appointment of counsel to assist him in filing his habeas application. After
ordering Mr. Whatley to cure designated deficiencies, Mr. Whatley filed an incomplete
habeas application on July 29, 2014, and an amended application (ECF No. 7) on
August 25, 2014. In the amended Application, Mr. Whatley asserts the following seven
claims for relief:
1. Ineffective assistance of trial counsel due to counsel’s lack of
investigation and performance at trial.
2. Ineffective assistance of counsel due to counsel Reynolds having
a conflict of interest.
3. Mr. Whatley’s right to be present was violated because he was
not present during a portion of the jury selection.
4. He was denied his right to represent himself.
5. He was denied his right to due process when the trial court failed
to suspend trial proceedings to address his competency.
6. His right to be free from unreasonable searches and seizures
was violated by the manner in which the police arrested him and
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seized evidence.
7. His “right to privileged communication and confidentiality” was
violated by the trial court’s failure to exclude the prosecutor from
the courtroom during a hearing concerning whether defense
counsel would be permitted to withdraw.
(ECF No. 7 at 5-6, 13-14.)
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;
(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 the
date on which the judgment in Mr. Whatley’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 September 24, 2008, when the time expired for Mr.
Whatley to file for certiorari review with the United States Supreme Court.
As noted above, the Colorado Supreme Court denied Mr. Whatley’s petition for
writ of certiorari on direct appeal on June 26, 2008. Pursuant to Rule 13.1 of the Rules
of the Supreme Court of the United States, Mr. Whatley had ninety days to seek review
in the United States Supreme Court but he did not do so. Therefore, the Court finds
that Mr. Whatley’s conviction became final on September 24, 2008, when the time for
filing a petition for writ of certiorari in the United States Supreme Court expired. Mr.
Whatley’s argument that the judgment did not became final until October 9, 2008
because he had ninety days to file a writ of certiorari in the United States Supreme
Court from the date the mandate issued is incorrect. Pursuant to Rule 13.3 of the Rules
of the Supreme Court of the United States, the time to file a petition for writ of certiorari
runs from the date of entry of the judgment or order sought to be reviewed and not the
date on which the mandate issues.
The Court also finds that the one-year limitation period began to run on
September 24, 2008, because Mr. Whatley does not contend 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
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factual predicate for his claims before the judgment became final. See 28 U.S.C. §
2244(d)(1)(B) - (D).
Mr. Whatley did not initiate this action within one year after September 24, 2008.
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 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).
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
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during the period in which the petitioner could have sought an appeal under state law.”
Gibson, 232 F.3d at 804.
As noted above, Mr. Whatley filed a postconviction motion seeking a reduction of
sentence under Colo. R. Crim. P. 35(b) on December 17, 2008 and a petition for
postconviction relief under Colo. R. Crim. P. 35(c) on July 12, 2011. Both motions were
denied by the trial court on July 20, 2011 and the Colorado Court of Appeals affirmed
the denial on April 11, 2013. Respondents concede that the one-year limitation period
was tolled from December 17, 2008 until May 23, 2013, when the time to seek certiorari
review in the Colorado Supreme Court expired. However, the 84 days between
September 24, 2008 and December 17, 2008, count against the one-year limitation
period. Thus, when the one-year limitation period began to run again on May 24, 2013,
only 281 days remained (365 - 84 = 281).
Mr. Whatley asserts that the one-year limitation period was tolled until August 27,
2013, because the time to seek certiorari review in the Colorado Supreme Court is
calculated from the date when the mandate is issued. Mr. Whatley is incorrect. See
Serrano v. Williams, 383 F.3d 1181, 1185 (10th Cir. 2004) (refusing to extend tolling
period for postconviction motion to the date the mandate issued).
Thus, beginning on May 24, 2013, the remaining 281 days ran unabated until the
one-year limitation period expired on March 3, 2014.1 Mr. Whatley, however, did not
initiate the instant habeas action until June 26, 2014. Therefore, the instant action is
barred by the one-year limitation period in the absence of some other reason to toll the

1

The 281st day after May 24, 2013, was Saturday, March 1, 2014. Therefore, the filing
period extended until Monday, March 3, 2014. See Sup. Ct. R. 30.1.

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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).
Mr. Whatley contends that this action should not be dismissed as time-barred
“due to the defendant’s mental incompentancy [sic] during and before the ADEPA’s one
year limitations period.” (ECF No.22 at 5.) Specifically, Mr. Whatley asserts that he
suffers from major depressive disorder and borderline personality disorder and that
“these defects can cause the defendant to put off the importance of meeting a
deadline.” (Id. at 5, 8.) The Court is not persuaded that this allegation of mental illness
justifies equitable tolling of the one-year limitation period.
The Tenth Circuit “has yet to apply equitable tolling on the basis of mental
incapacity.” McCall v. Wyo. Attorney General, 339 F. App’x 848, 850 (10th Cir. 2009).
Assuming mental incapacity could justify equitable tolling, “[e]quitable tolling of a
limitations period based on mental incapacity is warranted only in ‘exceptional
circumstances’ that may include an adjudication of incompetence, institutionalization for
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mental incapacity, or evidence that the individual is not ‘capable of pursuing his own
claim’ because of mental incapacity.” Reupert v. Workman, 45 F. App’x 852, 854 (10th
Cir. 2002) (quoting Biester v. Midwest Health Serv., Inc., 77 F.3d 1264, 1268 (10th Cir.
1996)).
Mr. Whatley fails to demonstrate that he was prevented from pursuing his federal
claims in a timely manner due to mental incapacity or that he pursued his claims
diligently. Although, Mr. Whatley asserts that he suffered mental incompetency at his
trial, Mr. Whatley was found competent to proceed in the state court proceedings.
Furthermore, the fact that Mr. Whatley was capable of initiating and pursuing
proceedings in his state court case undercuts any argument that his mental illness
justifies equitable tolling in this action. See Miller v. Runyon, 77 F.3d 189, 191 (7th Cir.
1996) (noting the general rule is that “mental illness tolls a statute of limitations only if
the illness in fact prevents the sufferer from managing his affairs and thus from
understanding his legal rights and acting upon them.”); see also Smith v. Saffle, 28 F.
App’x 759 (10th Cir. 2001) (finding equitable tolling based on mental incapacity is not
available “where the party urging tolling has been able to pursue legal action during the
period of his or her alleged incapacity”).
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 some of Mr. Whatley’s claims also are not exhausted and
procedurally defaulted.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
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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 amended habeas corpus application (ECF No. 7) is denied
and the action is dismissed as barred by the one-year limitation period. 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 4th

day of

February

, 2015.

BY THE COURT:

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

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