Williams v. Falk, et al

Filing 17

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/13/15. No certificate of appealability will issue, and 16 Motion for Appointment of Counsel is denied. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01876-GPG
MELVIN KEITH WILLIAMS,
Applicant,
v.
JAMES FALK, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Melvin Keith Williams, is a prisoner in the custody of the Colorado
Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr.
Williams 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 conviction in
Denver District Court case number 05CR644.
On July 21, 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. On September 10, 2014, Respondents filed their Pre-Answer Response
(ECF No. 14) arguing that the Application is untimely and that Mr. Williams’ claims are
unexhausted and procedurally barred. Mr. Williams has not filed a reply to the PreAnswer Response despite being given an opportunity to do so.

The Court must construe the Application liberally because Mr. Williams 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.
On May 11, 2006, Mr. Williams agreed to plead guilty to one count of kidnapping
and one count of sexual assault. (See ECF No. 14-1 at 11.) On July 26, 2006, he filed
a motion to withdraw the guilty plea. (See id.) On August 4, 2006, the trial court denied
Mr. Williams’ motion to withdraw his guilty plea and sentenced him to an indeterminate
term of thirty-five years to life in prison. (See id.) Although Mr. Williams filed a direct
appeal, he later filed a motion to dismiss the appeal. On February 1, 2008, the
Colorado Court of Appeals dismissed the appeal. (See ECF No. 14-2 at 1.) The
mandate issued on March 21, 2008. (See id., ECF No. 14-1 at 10.)
On September 18, 2008, Mr. Williams filed in the trial court his first postconviction
motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See id. at
9.) On September 29, 2008, the trial court denied the first Rule 35(c) motion. (See id.)
On July 7, 2009, Mr. Williams filed a notice of appeal from the trial court’s order denying
the first Rule 35(c) motion. (See ECF No. 14-3.) On October 15, 2009, the Colorado
Court of Appeals dismissed Mr. Williams’ appeal as untimely. (See ECF No. 14-5.)
On December 22, 2010, Mr. Williams filed in the trial court his second
postconviction Rule 35(c) motion, which was denied on December 28, 2010. (See ECF
No. 14-1 at 8.) He did not appeal.
On September 23, 2011, and December 11, 2013, Mr. Williams filed in the trial
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court two more postconviction Rule 35(c) motions. (See id.) The trial court denied
those motions on February 12, 2014, as untimely and successive. (See id. at 7.) Mr.
Williams did not appeal.
Finally, on January 21, 2014, Mr. Williams filed in the trial court a postconviction
motion to correct an illegal sentence pursuant to Rule 35(a) of the Colorado Rules of
Criminal Procedure. (See id. at 8.) The trial court denied the postconviction Rule 35(a)
motion on March 26, 2014. (See id. at 7.) Mr. Williams did not appeal.
The Application was filed on July 7, 2014. Mr. Williams asserts three claims for
relief contending counsel was ineffective by failing to advise him he was pleading guilty
to an offense that would result in a life sentence (claim one), he was denied his Sixth
Amendment right to trial by an impartial jury of his peers (claim two), and his Fourteenth
Amendment rights were violated when the trial court failed to rule on his motion to
withdraw his guilty plea and told him to address the issue in a postconviction Rule 35(c)
motion. As noted above, the record before the Court demonstrates that the trial court
denied Mr. Williams’ motion to withdraw his guilty plea at his sentencing hearing.
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
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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.
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. Williams’ conviction became final on March 18, 2008,
when the time expired to file a petition for writ of certiorari to the Colorado Supreme
Court following dismissal of his direct appeal on February 1, 2008. Mr. Williams does
not argue that his conviction became final on some other date.
Mr. Williams also 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. §
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2244(d)(1)(B) - (D). Therefore, the Court finds that the one-year limitation period began
to run when his conviction became final on March 18, 2008.
Mr. Williams did not initiate this action within one year after March 18, 2008.
Therefore, the next question the Court must address 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).
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.
Respondents concede that the one-year limitation period was tolled pursuant to §
2244(d)(2) while Mr. Williams’ first Rule 35(c) motion filed on September 18, 2008, was
pending. However, the 183 days after March 18, 2008, and before September 18,
2008, count against the one-year limitation period.
As noted above, the first Rule 35(c) motion was denied on September 29, 2008.
Pursuant to the version of Rule 4(b) of the Colorado Appellate Rules applicable at the
time the first Rule 35(c) motion was denied, Mr. Williams had forty-five days, or until
November 13, 2008, to file a notice of appeal.1 Therefore, Mr. Williams’ late notice of
appeal filed on July 7, 2009, was not properly filed under Colorado law and did not toll
the one-year limitation period. See Estep v. People, 753 P.2d 1241, 1246 (Colo. 1988)
(“The timely filing of a notice of appeal is a jurisdictional prerequisite to appellate
review.”). Thus, the first Rule 35(c) motion tolled the one-year limitation period only
from September 18, 2008, until November 13, 2008, when the time to file a notice of
appeal expired. Because the one-year limitation period ran for 183 days before the first
Rule 35(c) motion was filed, only 182 days (365 - 183 = 182) remained when the oneyear limitation period began to run again on November 13, 2008.
The remaining 182 days ran unabated after November 13, 2008, until the oneyear limitation period expired in May 2009. Because the one-year limitation period
expired before Mr. Williams filed any further postconviction motions, those motions did

1

The current version of Colo. App. R. 4(b), amended effective July 1, 2012, allows forty-nine days
to file a notice of appeal.

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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). Therefore,
the instant action is barred by the one-year limitation period 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).
Mr. Williams 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.
Respondents also argue that Mr. Williams’ claims are unexhausted and
procedurally barred. Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of
habeas corpus may not be granted unless it appears that the applicant has exhausted
state remedies or that no adequate state remedies are available or effective to protect
the applicant’s rights. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kan.
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State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is
satisfied once the federal claim has been presented fairly to the state courts. See
Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the
federal issue be presented properly “to the highest state court, either by direct review of
the conviction or in a postconviction attack.” Dever, 36 F.3d at 1534.
Furthermore, the “substance of a federal habeas corpus claim” must have been
presented to the state courts in order to satisfy the fair presentation requirement. Picard
v. Connor, 404 U.S. 270, 278 (1971); see also Nichols v. Sullivan, 867 F.2d 1250, 1252
(10th Cir. 1989). Although fair presentation does not require a habeas corpus petitioner
to cite “book and verse on the federal constitution,” Picard, 404 U.S. at 278 (internal
quotation marks omitted), “[i]t is not enough that all the facts necessary to support the
federal claim were before the state courts.” Anderson v. Harless, 459 U.S. 4, 6 (1982)
(per curiam). A claim must be presented as a federal constitutional claim in the state
court proceedings in order to be exhausted. See Duncan v. Henry, 513 U.S. 364, 36566 (1995) (per curiam).
Finally, “[t]he exhaustion requirement is not one to be overlooked lightly.”
Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). A state prisoner bringing a
federal habeas corpus action bears the burden of showing he has exhausted all
available state remedies for each particular claim. See Miranda v. Cooper, 967 F.2d
392, 398 (10th Cir. 1992). A blanket statement that state remedies have been
exhausted does not satisfy this burden. See Olson v. McKune, 9 F.3d 95 (10th Cir.
1993); see also Fuller v. Baird, 306 F. App’x 430, 431 n.3 (10th Cir. 2009) (stating that a
bald assertion unsupported by court records is insufficient to demonstrate state
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remedies are exhausted).
Mr. Williams fails to demonstrate that he has fairly presented his claims to the
Colorado appellate courts. In fact, he concedes in the Application that he has not fairly
presented each of his claims to the Colorado appellate courts. (See ECF No. 1 at 5.)
Although Mr. Williams has not fairly presented his claims to the state courts, the
Court may not dismiss the Application for failure to exhaust state remedies if Mr.
Williams no longer has an adequate and effective state remedy available to him. See
Castille, 489 U.S. at 351. Respondents contend, and the Court agrees, that Mr.
Williams no longer has an adequate and effective state remedy available to him, and
that the unexhausted claims are procedurally defaulted, for several reasons. First, the
time has expired for Mr. Williams to go back to state court and exhaust state remedies
with respect to his direct appeal and the postconviction proceedings discussed above.
Second, Rules 35(c)(3)(VI) and (VII) of the Colorado Rules of Criminal Procedure
provide that, with limited exceptions not applicable to Mr. Williams, the state court must
dismiss any claim raised and resolved in a prior appeal or postconviction proceeding as
well as any claim that could have been presented in a prior appeal or postconviction
proceeding. Thus, regardless of whether Mr. Williams actually raised his claims in the
Application on direct appeal or in one or more of his postconviction motions, those
claims would be dismissed if he tried to raise them again. Third, any attempt by Mr.
Williams to file another postconviction Rule 35(c) motion in state court would be
untimely. See Colo. Rev. Stat. § 16-5-402 (providing that a defendant convicted of
felony other than a class 1 felony has three years to seek relief under Rule 35(c) unless
he establishes good cause). Thus, it is clear that Mr. Williams may not return to state
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court to pursue his unexhausted claims.
As a general rule, federal courts “do not review issues that have been defaulted
in state court on an independent and adequate state procedural ground, unless the
default is excused through a showing of cause and actual prejudice or a fundamental
miscarriage of justice.” Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998). Even
if an unexhausted claim has not actually been raised and rejected by the state courts,
the claim still is subject to an anticipatory procedural default if it is clear that the claim
would be rejected because of an independent and adequate state procedural rule. See
Coleman, 501 U.S. at 735 n.1.
“A state procedural ground is independent if it relies on state law, rather than
federal law, as the basis for the decision.” English v. Cody, 146 F.3d 1257, 1259 (10th
Cir. 1998). A state procedural ground is adequate if it is “applied evenhandedly in the
vast majority of cases.” Id.
Application of this procedural default rule in the habeas corpus context is based
on comity and federalism concerns. See Coleman, 501 U.S. at 730. Mr. Williams’ pro
se status does not exempt him from the requirement of demonstrating either cause and
prejudice or a fundamental miscarriage of justice. See Lepiscopo v. Tansy, 38 F.3d
1128, 1130 (10th Cir. 1994).
Mr. Williams fails to demonstrate or even argue that Rules 35(c)(3)(VI) and (VII)
of the Colorado Rules of Criminal Procedure and Colo. Rev. Stat. § 16-5-402 are not
independent and adequate. In any event, the Court finds that Rule 35(c)(3)(VI) and
(VII) are independent because they rely on state rather than federal law. The rules also
are adequate because they are applied evenhandedly by Colorado courts. See, e.g.,
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People v. Vondra, 240 P.3d 493, 494-95 (Colo. App. 2010) (applying Crim P. Rules
35(c)(3)(VI) and (VII) to reject claims that were or could have been raised in a prior
proceeding). Colorado’s statute of limitations for collateral attacks also is an
independent and adequate state procedural ground. See Klein v. Neal, 45 F.3d 1395,
1398 (10th Cir. 1995). Therefore, the unexhausted claims are procedurally defaulted
and cannot be considered unless Mr. Williams demonstrates either cause and prejudice
or a fundamental miscarriage of justice.
To demonstrate cause for his procedural default, Mr. Williams must show that
some objective factor external to the defense impeded his ability to comply with the
state’s procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). “Objective
factors that constitute cause include interference by officials that makes compliance with
the State’s procedural rule impracticable, and a showing that the factual or legal basis
for a claim was not reasonably available to [applicant].” McCleskey v. Zant, 499 U.S.
467, 493-94 (1991) (internal quotation marks omitted). If Mr. Williams can demonstrate
cause, he also must show “actual prejudice as a result of the alleged violation of federal
law.” Coleman, 501 U.S. at 750. A fundamental miscarriage of justice occurs when “a
constitutional violation has probably resulted in the conviction of one who is actually
innocent.” Murray, 477 U.S. at 496.
Mr. Williams makes no attempt to demonstrate cause and prejudice with respect
to his unexhausted claims and he fails to demonstrate that a failure to consider the
merits of his unexhausted claims will result in a fundamental miscarriage of justice.
Therefore, the unexhausted claims are procedurally barred and also must be dismissed
for that reason.
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The Court also 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 Application (ECF No. 1) is denied and the action is dismissed
because the Application is untimely and because Applicant’s claims are unexhausted
and procedurally barred. It is
FURTHER ORDERED that “Plaintiff’s Motion for Appointment of Counsel” (ECF
No. 16) is denied. 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

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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

13th

day of

January

, 2015.

BY THE COURT:

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

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