Medina v. Jefferson County Courts, Colo.

Filing 16

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/7/15. No certificate of appealability shall issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02894-GPG
NICK RAUL MEDINA,
Applicant,
v.
JAMES FALK, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant Nick Raul Medina is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Sterling Correctional Facility in Sterling,
Colorado. Applicant has filed an Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254. Because it was not clear whether Applicant is challenging the
execution or the validity of his sentence, on November 11, 2014, Magistrate Judge Boyd
N. Boland directed Respondents to brief the issue and to address 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 submitted a Response, ECF
No. 13, on November 24, 2014. Applicant filed a Reply, ECF No. 14, to the Pre-Answer
Response on December 10, 2014, and provided exhibits in support of the Application,
ECF No. 15, on December 24, 2014.
The Court must construe liberally the Application and Reply because Applicant 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 does not
“assume the role of advocate for the pro se litigant.” See Hall, 935 F.2d at 1110.

First, Respondents contend that Applicant is challenging the validity of his
conviction and sentence and not the execution of his sentence. ECF No. 13 at 3-5.
Applicant agrees. ECF No. 14 at 1. The Court, therefore, construes the action as filed
pursuant to 28 U.S.C. § 2254 and will address the affirmative defenses of timeliness
under 28 U.S.C. § 2244(d), and if necessary of exhaustion of state court remedies.
Applicant pled guilty to one count of contributing to the delinquency of a minor
and one count of sexual assault in Case No. 07CR1679 in the Jefferson County District
Court, ECF No. 14 at 2; Pre-Answer Resp., ECF No. 13-1, Ex. A at 12-13, and was
sentenced to a total of six years of incarceration on March 31, 2008, Pre-Answer Resp.,
ECF No. 13-1, Ex. A, at 7-8.
Respondents assert that Applicant did not file a direct appeal but filed a timely
motion for sentence reconsideration on July 29, 2008. ECF No. 13 at 2; ECF No. 13-1
at 7. The motion was denied on September 8, 2008, but Applicant did not appeal the
motion. See ECF No. 13 at 2; ECF No. 13-1 at 7. Applicant then filed a motion to
modify his sentence on November 1, 2012, which was denied on November 15, 2012,
and Applicant did not appeal the denial. Id. Applicant’s next postconviction filing was
on September 25, 2014, when he filed a Colo. R. Crim. P. 35(a) postconviction motion,
which was denied on October 8, 2014, and he did not appeal the denial. Id. Finally, on
October 15, 2014, Applicant filed a Colo. R. Crim. P. 35(c) postconviction motion, which
as of November 24, 2014, the date Respondents filed their Response, was pending. Id.
Respondents argue that this action is untimely under the one-year limitation
period set forth in 28 U.S.C. § 2244(d)(1). Applicant does not disagree. See ECF No.
14 at 4. Section 2244(d) provides as follows:

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(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.
28 U.S.C. § 2244(d).
For the following reasons, the Court will dismiss this action because it is barred
by the one-year limitation period in 28 U.S.C. § 2244(d).
Applicant’s conviction became final on May 15, 2008, when the time ran for
appealing the sentence entered on March 31, 2008. See Locke v. Saffle, 237 F.3d
1269, 1273 (10th Cir. 2001) (citing Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.
1999). Pursuant to Rule 4(b) of the Colorado Appellate Rules that was in effect at the
time Applicant was sentenced, he had forty-five days to file a notice of appeal after he
was sentenced. Accordingly, for purposes of § 2244(d), time began to run on May 16,
2008, the day after Applicant’s sentence became final.

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The Court next must determine whether any of Applicant’s state postconviction
motions tolled the one-year limitation period. 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 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).
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). A motion for relief
pursuant to Rule 35 tolls the statute of limitations if the state court treats the motion as a
motion for postconviction relief, Habteselassie, 209 F.3d at 1213, and if the motion
requests appointment of new counsel, seeks postconviction relief, and states adequate
grounds for relief, see Pursley v. Estep, et al., 216 F. App’x 733, 734 (10th Cir. 2007).
Since Respondents have provided the registry for the state criminal case at issue
in this action, Case No. 07CR1679, and Applicant does not disagree with the entries
stated in the registry, the Court finds time for purposes of § 2244(d) was not tolled
during the following time periods. From May 16, 2008, the day after Applicant’s
conviction and sentence became final, until July 28, 2008, the day prior to when
Applicant filed a motion to reconsider his sentence, which the district court construed as
a Rule 35(b) postconviction motion, seventy-four days is not tolled. Applicant’s Rule
35(b) postconviction motion was final on October 23, 2008, when the time ran for

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Applicant to file an appeal. Then from October 24, 2008, the date after the Rule 35(b)
motion was final, until October 31, 2012, the day prior to when Applicant filed his
motion to modify sentence, 1,469 days are not tolled under § 2244(d). Also from
December 31, 2012 , the day after the time ran for Applicant to appeal the denial of his
motion to modify, until September 24, 2014, the day prior to when Applicant filed a
motion to correct an illegal sentence, 633 days are not tolled. Altogether, 2,176 days
are not tolled for purposes of § 2244(d). Nonetheless, by August 11, 2009, the one year
time period had run under § 2244(d).
Applicant does not allege in the Application or the Reply that there are any
constitutional rights newly recognized by the Supreme Court that apply to his claims.
Applicant does assert, however, that he was not aware of the lifetime sex offender
registry requirement, because his public defender did not instruct him about the
registration, and that he did not know what an “SVP” (Sexually Violent Predator)
designation is until he was released. ECF No. 14 at 1-2. Applicant appears to claim he
could not have discovered the factual predicate of his claim until he had been released.
See § 2244(d)(1)(D). There is no basis for these claims because the factual predicate
for these claims took place at the time Applicant was sentenced and the trial court found
Applicant is a Sexually Violent Predator. See ECF No. 13-1 at 8.
Applicant also asserts that because he currently is in protective segregation he
does not have access to a law library to assist him in properly exhausting his remedies.
Id. at 2. Applicant, therefore, appears to claim he was unable to file a proper appeal
because there was an impediment created by the State, which prevented him from
properly appealing his conviction and sentence. See § 2244(d)(1)(B). There is no basis
for this claim because Applicant does not state that he was in protective segregation or
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denied access to a law library during any time that is not tolled prior to August 11, 2009,
the date the one year ran for purposes of § 2244(d).
“[T]he timeliness provision in the federal habeas corpus statute is subject to
equitable tolling.” Holland v. Florida, 130 S. Ct. 2549, 2554 (2010). “[A] petitioner is
entitled to equitable tolling only if he shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Id. at 2562 (internal quotation marks and citation omitted); accord Yang v.
Archuleta, 525 F.3d 925, 929 (10th Cir. 2008) (“ ‘Equitable tolling is a rare remedy to be
applied in unusual circumstances, not a cure-all for an entirely common state of
affairs.’ ”) (quoting Wallace v. Kato, 549 U.S. 384, 396 (2007)). “[A]n inmate bears a
strong burden to show specific facts to support his claim of extraordinary circumstances
and due diligence.” Mack v. Falk, 509 F. App’x 756, 760 (10th Cir. 2013) (quoting Yang
v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008)) (quotation marks and citations
omitted). The inmate must allege with specificity the steps he took to pursue his federal
claims. Yang, 525 F.3d at 930.
Applicant asserts several reasons that may be considered as arguments for
waiving the time period based on equitable tolling. First, Applicant claims that he has
had many personal medical problems and has been “highly medicated.” ECF No. 14 at
3. Applicant, however, does not state the time period during which he has been highly
medicated and how this affected his ability to diligently pursue his state court remedies.
Furthermore, Applicant’s current alleged attempts, starting on September 25, 2014, to
pursue any state postconviction motions, see ECF No. 14 at 3, are not demonstrations
that he diligently challenged his 2008 conviction and sentence in state court for the six
years prior to filing a Rule 35(a) postconviction motion on September 25, 2014. Finally,
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any claim by Applicant that his ignorance of the law should waive the one-year time
period is foreclosed. It is well established that “ignorance of the law, even for an
incarcerated pro se [applicant], generally does not excuse prompt filing.” Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (internal quotation marks and citation
omitted).
Applicant, therefore, has not met his burden to show specific facts that would
support equitable tolling under Holland based on extraordinary circumstances and due
diligence. See Mack, 509 F. App’x at 760.
The Court, therefore, will dismiss this action with prejudice as time-barred. See
Brown v. Roberts, 177 F. App’x 774, 778 (10th Cir. 2006) (dismissal as time barred
operates as a dismissal with prejudice). Because the action clearly is time-barred, the
Court will refrain from addressing any exhaustion issues.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not taken in good faith, and, therefore, in forma pauperis status is denied
for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Applicant 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 Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 is denied and this action is dismissed with prejudice as time-barred under
28 U.S.C. § 2244(d). It is
FURTHER ORDERED that no certificate of appealability shall issue because
Applicant has failed to show that jurists of reason would find it debatable that the district
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court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 7th

day of

January

, 2015.

BY THE COURT:

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

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