Yellow Boy v. People of the State of Colorado, The

Filing 16

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/14/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02435-GPG
JOHN R. YELLOWBOY,
Applicant,
v.
MICHAEL MILLER, and
JOHN W. SUTHERS, The Attorney General of the State of [Colorado],
Respondents.

ORDER OF DISMISSAL

Applicant, John R. Yellowboy, is a prisoner in the custody of the Colorado
Department of Corrections (CDOC) and is incarcerated at the Crowley County
Correctional Facility in Olney Springs, Colorado. He has filed an Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2254. (ECF No. 6). Mr. Yellowboy
challenges the validity of his conviction and sentence imposed in the District Court of
Larimer County, Colorado. He has paid the $5.00 filing fee.
On October 22, 2014, Magistrate Judge Boyd N. Boland directed Respondents to
file a pre-answer response 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). Respondents filed a Pre-Answer Response on October 29, 2014 (ECF
No. 12). Applicant filed his Reply (ECF No. 14) on December 11, 2014, after obtaining
an extension of time.

The Court must construe liberally the Application filed by Mr. Yellowboy 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 § 2254 Application will be dismissed as time-barred.
I. Background and State Court Proceedings
In September 1989, Mr. Yellowboy was convicted by a jury in Larimer County
District Court Case No. 89CR802 of second degree kidnapping, first degree sexual
assault, robbery, third degree assault, and a crime of violence. (ECF No. 12-1, at 2-3).
On direct appeal, the Colorado Court of Appeals vacated the crime of violence
conviction, but otherwise affirmed Applicant’s convictions and sentences. See People
v. Yellowboy, No. 90CA528 (Colo. App. Jan. 30, 1992) (unpublished) (ECF No. 12-3).
Mr. Yellowboy did not seek certiorari review in the Colorado Supreme Court.
In December 1992, Mr. Yellowboy also filed a Colo. Crim. P. Rule 35(b) motion to
reduce his sentence, which was denied by the state district court, along with a motion
for reconsideration. (ECF No. 12-4). Applicant did not appeal the trial court’s orders.
In June 2001, Mr. Yellowboy filed a Colo. Crim. P. Rule 35(a) motion to correct
an illegal sentence, which was denied by the state district court. (ECF No. 12-1, at 7).
Applicant did not appeal that order. (ECF No. 12-6, at 3).
In February 2008, Mr. Yellowboy filed a state post-conviction motion, pursuant to
Colo. Crim. P. Rule 35(a) and (c), attacking his convictions and sentence. (ECF No. 126). The Colorado Court of Appeals affirmed the trial court’s order denying the motion in

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People v. Yellowboy, No. 08CA729 (Colo. App. March 26, 2009) (unpublished) because
the claims presented had been raised or could have been raised on direct appeal.
(ECF No. 12-7). In the decision, the state appellate court also noted that Applicant’s
state court mittimus had not been amended to reflect removal of the crime of violence
conviction, and remanded the case for an amendment of the mittimus. (Id.).
In 2011, Mr. Yellowboy filed another state post-conviction motion under Colo.
Crim. P. Rule 35(a) and (c). (ECF No. 12-9). The Colorado Court of Appeals affirmed
the trial court’s order denying the motion on the various procedural grounds. See
People v. Yellowboy, No. 11CA2565 (Colo. App. Aug. 22, 2013) (unpublished) (ECF No.
12-11). The Colorado Supreme Court denied Applicant’s request for certiorari review
on July 28, 2014. (ECF No. 6, at 11).
Mr. Yellowboy filed his § 2254 Application on October 20, 2014. He claims in the
Application that the Colorado Court of Appeals order vacating the crime-of-violence
conviction: (1) demonstrated that his remaining convictions were not supported by proof
beyond a reasonable doubt; and, (2) that all of his sentences are illegal. (ECF No. 6, at
5-6).
Respondents argue that the Application is barred by the one-year limitation
period in 28 U.S.C. § 2244(d). (ECF No. 12, at 5-7). Respondents further contend that
claim the claims were procedurally defaulted in the state courts and are thus barred
from merits review in this federal habeas proceeding. (Id. at 8-11).

II. AEDPA Time Bar
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The Anti-Terrorism and Effective Death Penalty Act (AEDPA) provides:
(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 postconviction 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).
For convictions that became final prior to the April 24, 1996, the effective date of
the AEDPA, state prisoners had until April 24, 1997, within which to file habeas corpus
applications attacking their convictions or sentences. Wood v. Milyard, 132 S.Ct. 1826,
1831 (2012); Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998). Accordingly, Mr.
Yellowboy was required to file his § 2254 Application by April 24, 1997, unless statutory
tolling of the one-year period applies.

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Pursuant to 28 U.S.C. § 2244(d)(2), a properly filed state court post-conviction
motion tolls the one-year limitation period while the motion is pending. An application
for post-conviction review is properly filed with 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). The 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).
The issue of whether a post-conviction motion is pending is a matter of federal
law. 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).
Mr. Yellowboy did not file any post-conviction motions in the state courts between
1992 and 2001. As such, the one-year limitation period expired on April 24, 1997.
State post-conviction motions filed after the passage of the one-year period are not
relevant to the timeliness of the federal application. See Clark v. Oklahoma, 468 F.3d
711, 714 (10th Cir. 2004) (“Only state petitions for post-conviction relief filed within the
one year allowed by AEDPA will toll the statute of limitations.”); Fisher v. Gibson, 262
F.3d 1135, 1142–43 (10th Cir. 2001) (same). Accordingly, the Court finds that the §
2254 Application is time-barred unless equitable tolling applies.
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III. Equitable Tolling
The one-year limitation period in 28 U.S.C. § 2244(d) is not jurisdictional and
may be tolled for equitable reasons “in rare and exceptional circumstances.” Gibson,
232 F.3d at 808 (internal quotation marks omitted); see also Miller v. Marr, 141 F.3d
976, 978 (10th Cir. 1998). Equitable tolling may be appropriate if (1) the petitioner is
actually innocent; (2) an adversary’s conduct or other extraordinary circumstance
prevents the petitioner from timely filing; or (3) the petitioner actively pursues judicial
remedies but files a defective pleading within the statutory period. See Holland v.
Florida,

U.S.

, 130 S.Ct. 2549, 2562 (2010); Gibson, 232 F.3d at 808. Simple

excusable neglect is not sufficient to support equitable tolling. Gibson, 232 F.3d at 808.
Furthermore, equitable tolling is appropriate only if the petitioner pursues his claims
diligently. Miller, 141 F.3d at 978. 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. Yellowboy bears the burden of
demonstrating that equitable tolling is appropriate in this action. See id.
Mr. Yellowboy argues in his Reply brief that the Application is timely because
there is no state law limitation period on filing a motion to correct an illegal sentence
under Colo. Crim. P. Rule 35(a). (ECF No. 14). This contention lacks merit because
Applicant’s § 2254 application is subject to the federal limitation period set forth in the
AEDPA, not state law.
Applicant does not provide any other basis for equitable tolling of the one-year
period and none is evident from his filings. Further, Mr. Yellowboy does not allege any
facts to demonstrate that he is actually innocent of the crimes or that he actively
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pursued his judicial remedies but filed a defective pleading within the statutory period.
Accordingly, the Court finds that the § 2254 Application is time-barred.
The Court need not reach Respondents’ alternative argument that Mr. Yellowboy’
claims are procedurally defaulted.
IV. Orders
For the reasons discussed above, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 6), filed by Applicant, John R. Yellowboy, is DENIED as timebarred under 28 U.S.C. § 2244(d), and this action is DISMISSED WITH PREJUDICE. It
is
FURTHER ORDERED that no certificate of appealability will issue because
jurists of reason would not debate the correctness of the procedural ruling and Mr.
Yellowboy 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 for the purpose of appeal. 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. See
Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Yellowboy files a notice of
appeal he must also pay the full $505 appellate filing fee or file a motion to proceed in

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forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty
days in accordance with Fed. R. App. P. 24.
DATED January 14, 2015. at Denver, Colorado.
BY THE COURT:

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

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