Barron v. People of the State of Colorado, The et al

Filing 17

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/28/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02698-GPG
LAVERN BARRON, a/k/a LAVONE B. BARRON,
Applicant,
v.
RANDY LIND, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Lavern Barron, is a prisoner in the custody of the Colorado
Department of Corrections (CDOC) at the Arkansas Valley Correctional Facility in
Ordway, Colorado. He has filed an Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254. (ECF No. 8). Mr. Barron challenges the validity of his convictions
and sentence imposed in the District Court of Denver County, Colorado. He has been
granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On November 18, 2014, Magistrate Judge Gordon P. Gallagher 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). (ECF No. 12). Respondents filed a Pre-Answer Response on
November 28, 2014. (ECF No. 16). Applicant was given an opportunity to file a Reply.
The Court construes the Application liberally because Mr. Barron 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 January 2007, Mr. Barron was convicted by a jury in Denver County District
Court Case No. 06CR2543 of two counts of aggravated first degree sexual assault.
(ECF No. 16-1, at 11-12). Upon his adjudication as a habitual offender, Applicant was
sentenced to a 72-year prison term with the CDOC. (Id. at 9). His convictions and
sentence were affirmed on direct appeal in People v. Lavern Bunny Barron, No.
07CA1078 (Colo. App. May 14, 2009) (unpublished) (ECF No. 16-3). The Colorado
Supreme Court denied Mr. Barron’s petition for certiorari review on August 24, 2009.
(ECF No. 16-5).
Mr. Barron filed a motion for sentence reconsideration on October 26, 2009,
which the trial court denied the following day. (ECF No. 16-1, at 7). Applicant did not
appeal.
On December 13, 2010, Mr. Barron filed a motion for post-conviction relief
pursuant to Colo. Crim. P. Rule 35(c), which was denied by the state district court on
October 10, 2011. (Id. at 6-7). The Colorado Court of Appeals affirmed the district
court’s order in People v. Lavern Bonnie Barron, 11CA2159 (Colo. App. Nov. 14, 2013)
(unpublished). (ECF No. 16-8). The Colorado Supreme Court denied Applicant’s
petition for certiorari review on September 8, 2014. (ECF No. 16-10).

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II. Prior Federal Application
Mr. Barron filed his first § 2254 Application in this Court, on August 12, 2010.
See Lavern B. Barron v. The People of the State of Colorado, et al., No. 10-cv-02134ZLW. On November 10, 2010, Magistrate Judge Boyd N. Boland issued an Order
directing Applicant to show cause, within thirty days, why the § 2254 Application should
not be dismissed without prejudice as a mixed petition, pursuant to Rose v. Lundy, 455
U.S. 509, 522 (1982), because it contained both exhausted and unexhausted claims.
(See id. at ECF No. 10). Magistrate Judge Boland gave Applicant the following
advisement in the Order to Show Cause:
. . . In order to avoid dismissal of a habeas application as a mixed petition,
an applicant may elect to dismiss any unexhausted claims and pursue
only those claims for which state remedies already have been exhausted.
If an applicant wishes to pursue all of his claims in federal court the
habeas action will be dismissed without prejudice so that the applicant
may exhaust state remedies. He then may file a new application for a writ
of habeas corpus.
A decision to dismiss unexhausted claims and pursue immediately
only exhausted claims likely will bar an applicant from seeking review of
the unexhausted claims in a second or successive application. See 28
U.S.C. § 2244(b). Alternatively, if an applicant elects to dismiss the entire
action and return to state court to exhaust the unexhausted claims before
seeking relief in federal court, the one-year limitation period in § 2244(d)
will be applied to any new federal court action the applicant seeks to file.
Furthermore, the time during which a 28 U.S.C. § 2254 application is
pending in this Court does not toll the one-year limitation period in §
2244(d). See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding
that “an application for federal habeas corpus review is not an ‘application
for State post-conviction or other collateral review’ within the meaning of
28 U.S.C. § 2244(d)(2)” and “therefore did not toll the limitation period
during the pendency of [an applicant’s] first federal habeas petition”).
The fact that the instant action currently is timely under § 2244(d)
does not mean that any future action filed by Mr. Barron also will be
timely.
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(Id., at pp. 5-6) (Emphasis in the original).
In his response to the Order to Show Cause, Mr. Barron stated that he desired to
pursue all of his claims in federal court, and, therefore, he requested that the Court
dismiss the action without prejudice so that he could exhaust state court remedies for
his unexhausted claims. (Id., ECF No. 11). Based on Applicant’s response, the Court
dismissed the action without prejudice on December 2, 2010, and reminded Mr. Barron
that “the fact that the instant action currently is timely under 28 U.S.C. § 2244(d) does
not mean that any future action filed by Mr. Barron will be timely.” (Id., ECF No. 12).
Mr. Barron subsequently filed the instant proceeding on September 30, 2014. He
asserts six claims for relief in his § 2254 Application. (ECF No. 8).
Respondents argue in the Pre-Answer Response that the Application is barred
by the one-year limitation period in 28 U.S.C. § 2244(d). (ECF No. 16, at 6-9).
III. AEDPA Time Bar
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
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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 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).
Mr. Barron’s conviction became final on November 23, 2009, ninety days after
the Colorado Supreme Court denied his petition for certiorari review, when the deadline
for seeking discretionary relief in the United States Supreme Court expired.1 See Locke
v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001); Sup. Ct. R. 13.1. The AEDPA one-year
period commenced on that date, absent statutory tolling. See Holland v. Florida, 560
U.S. 631, 635 (2010) (“And on that date–the date that our denial of the petition ended
further direct review of Holland’s conviction–the 1-year AEDPA limitations clock began
to run.”).
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

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Because the 90th day was a Sunday, Applicant would have been entitled to file his petition for
review on the next business day, Monday November 23, 2009. Sup. Ct. R. 30.1.

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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).
The one-year limitation period would have commenced on November 23, 2009,
except for the fact that Mr. Barron’s Colo. Crim. P. Rule 35(b) motion was pending in the
state courts. The limitation period was tolled until December 11, 2009, when the 45-day
period for filing an appeal of the trial court’s October 27, 2009 order denying the Rule
35(b) motion expired. See Colo. App. R. 4(b) (2009).
The AEDPA time clock began to run on December 12, 2009. Mr. Barron did not
file another state post-conviction motion until December 13, 2010, when he filed his
Colo. Crim. P. Rule 35(c) motion in the state district court. The Rule 35(c) motion was
filed on the anniversary date of the start of the one-year limitation period2 and was
pending until September 8, 2014, when the Colorado Supreme Court denied Applicant’s
petition for certiorari review. Mr. Barron thereafter filed the instant action on September
30, 2014, 22 days after the one-year period expired.

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December 13, 2010 marked the one-year anniversary for the running of the one-year limitation
period because December 12, 2010 was a Sunday. See Fed. R. Civ. P. 6.

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Under the AEDPA, the limitation period is tolled only during the pendency of “a
properly filed application for State post-conviction or other collateral review.” 28 U.S.C.
§ 2244(d)(2). Applicant’s first federal Application, filed in Case No. 10-cv-02134-ZLW,
on August 12, 2010, did not the further toll the limitation period pursuant to
§ 2244(2)(2). See Duncan, 533 U.S. at 181-82.
Moreover, Mr. Barron did not ask the Court to stay the earlier proceeding,
pursuant to Rhines v. Weber, 544 U.S. 269, 277 (2005), while he finished exhausting
his state court remedies, and there is nothing to indicate that he could have met the
requirements for a stay – specifically, that he had good cause for failing to exhaust his
claims in the state courts before seeking federal habeas relief. See Rhines, 544 U.S. at
277. Inexplicably, Mr. Barron chose to file a federal Application ten months after his
Rule 35(b) motion was denied, instead of pursuing additional post-conviction remedies
in the state courts.
The Court was not required to advise Applicant, in his earlier federal habeas
proceeding, of the potential availability of a stay under Rhines. See Pliler v. Ford, 542
U.S. 225 (2004). In Pliler, the pro se petitioner had timely filed a mixed petition before
expiration of the AEDPA one-year limitation period. After the statute of limitations had
run, the district court informed the petitioner that he could either delete his unexhausted
claims or dismiss the petition without prejudice, return to state court, and exhaust the
unexhausted claims. The petitioner elected to dismiss his petition without prejudice so
that he could exhaust his state court remedies. After the petitioner returned to federal
court, having fully exhausted his claims in the state courts, the federal court dismissed
his second petition with prejudice as time-barred.
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The Supreme Court held that, contrary to the holding by the Ninth Circuit, a
district court does not commit prejudicial error when it fails to inform a pro se prisoner
(1) as to what he would have to do, procedurally, to invoke the district court's stay and
abey procedure; and, (2) that absent equitable tolling, his federal claims would be
time-barred on his return to federal court. Pliler, 542 U.S. at 230-32. The Court stated
that “[r]equiring district courts to advise a pro se litigant in such a manner would
undermine district judges' role as impartial decision-makers,” and would “force upon
district judges the potentially burdensome, time-consuming, and fact-intensive task of
making a case-specific investigation” of the applicable AEDPA limitations period. Id. at
232. The Court further recognized that “Rose requires dismissal of mixed petitions,
which, as a practical matter, means that the prisoner must follow one of the two paths
outlined in Rose if he wants to proceed with his federal habeas petition. But nothing in
Rose requires that both of these options be equally attractive, much less suggests that
district judges give specific advisements as to the availability and wisdom of these
options.” Id. at 233. That said, the Court remanded for determination of whether the
petitioner “had been affirmatively misled quite apart from the district court's failure to
give the two warnings.” Id. at 234; see also id. at 235 (O'Connor, J., concurring)
(“Nevertheless, if the petitioner is affirmatively misled, either by the court or by the
State, equitable tolling might well be appropriate. This is a question for the Ninth Circuit
to consider on remand.”).
The Court considers below whether Mr. Barron is entitled to equitable tolling of
the AEDPA limitation period.
IV. Equitable Tolling
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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, 560
U.S. at 649; 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. Barron bears the burden of demonstrating that equitable tolling is
appropriate in this action. See id.
Mr. Barron did not file a Reply to Respondents’ assertion in the Pre-Answer
Response that the Application is time-barred, nor does he allege any facts in his
Application to suggest that equitable tolling is warranted. Upon careful review of the
filings in Applicant’s two federal habeas cases, the Court finds no explanation as to why
Applicant did not file a motion for state post-conviction relief, pursuant to Colo. Crim. P.
Rule 35(c), during the nine months after the state district court denied his Rule 35(b)
motion, but instead chose to file a mixed federal habeas application in this Court on
August 12, 2010. Mr. Barron has failed to demonstrate that he diligently pursued his
state court remedies before seeking federal habeas corps relief. And, to the extent he
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would rely on his pro se status, ignorance of the law is not a basis for equitable tolling.
See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (stating that “ignorance of
the law, even for an incarcerated pro se petitioner, generally does not excuse prompt
filing.”).
The Court next considers whether Applicant was “affirmatively misled” by the
Court’s Order to Show Cause in Case No. 10-cv-2134-ZLW. See Pliler, 542 U.S. at
234. On this issue, the Ninth Circuit’s decision in Brambles v. Duncan, 412 F.3d 1066
(9th Cir. 2005), is instructive.
In Brambles, the Ninth Circuit addressed circumstances similar to those in the
present case and concluded that the habeas petitioner has not been affirmatively misled
by the federal district court. The Circuit Court reasoned:
The district court affirmatively told Brambles to choose between two
alternatives—dismiss his unexhausted claims and proceed in federal court
only with his then-exhausted claim, or request the district court to dismiss
the entire petition without prejudice and exhaust his then-unexhausted
claims in state court before returning to federal court. These instructions
were not affirmatively misleading. They presented accurate options
available to Brambles. See 28 U.S.C. § 2244(d)(1); Rose v. Lundy, 455
U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); . . . If anything was
misleading, it was what the district court did not tell Brambles–that the
dismissal of his first petition would effectively be final unless he could
establish that the statute of limitations period was equitably tolled, and that
the stay and abey process was available. However, the Supreme Court in
Pliler admonished district courts against attempting to explain to pro se
litigants these federal habeas procedures, stating that attempting to do so
might prove to be misleading. Pliler, 124 S.Ct. at 2446.
Brambles, 412 F.3d at 1070-71. The Ninth Circuit concluded that because the petitioner
was not affirmatively misled by the district court, equitable tolling was not available to
him. Id. at 1071.

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This Court agrees with the reasoning in Brambles, as supported by the Supreme
Court’s decision in Pliler, and finds that Applicant was not affirmatively misled by the
Court in the earlier action. See also Ford v. Pliler, 590 F.3d 782, 784 (9th Cir. 2009)
(concluding, on remand, that the petitioner was not affirmatively misled by the district
court’s statements because “[a] petitioner's misunderstanding of accurate information
cannot merit relief”).
Further, Mr. Barron does not allege any facts in the § 2254 Application to
demonstrate that he is actually innocent of the crimes. See McQuiggin v. Perkins, ___,
U.S. ___, 133 S.Ct. 1924, 1928 (2013) (holding that a claim of actual innocence may
warrant tolling where the petitioner demonstrated that “in light of the new evidence, no
juror, acting reasonably, would have voted to find him guilty beyond a reasonable
doubt.”).
In sum, the Court finds no basis to apply equitable tolling in this action.
Accordingly, the § 2254 Application will be dismissed as time-barred.3
V. 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. 8), filed by Applicant, Lavern B. Barron, a/k/a Lavone B.
Barron, is DENIED as time-barred under 28 U.S.C. § 2244(d), and this action is
DISMISSED WITH PREJUDICE. It is

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The Court need not reach Respondents’ alternative argument that at least one of Applicant’s
claims is procedurally barred.

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FURTHER ORDERED that no certificate of appealability will issue because
jurists of reason would not debate the correctness of the procedural ruling and Mr.
Barron 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. Barron files a notice of appeal
he must also 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.
DATED January 28, 2015. at Denver, Colorado.
BY THE COURT:

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

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