Mardis v. Falk et al
Filing
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ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/9/15. No certificate of appealability will issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02895-GPG
ALEXANDER S. MARDIS, Propria Persona,
Applicant,
v.
JAMES FALK, Warden Sterling Corr. Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO, JOHN SUTHERS,
Respondents.
ORDER OF DISMISSAL
Applicant, Alexander S. Mardis, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) currently incarcerated at the Sterling Correctional
Facility in Sterling, Colorado. Mr. Mardis filed a pro se an Amended Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 16) challenging the
validity of his conviction in Case No. 11CR1331 in the Weld County District Court. Mr.
Mardis has been granted leave to proceed in forma pauperis.
On January 15, 2015, Magistrate Gordon P. Gallagher directed 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 under 28 U.S.C. §
2254(b)(1)(A). Respondents submitted a Pre-Answer Response (ECF No. 20) on
January 28, 2015. Mr. Mardis filed a Reply (ECF No. 23), a Memorandum of Law (ECF
No. 24), and Omnibus Motion (ECF No. 25).
The Court must construe liberally the Application and other documents filed by
Mr. Mardis 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 Court will dismiss the action as barred
by the one-year limitation period.
I.
Background
On November 9, 2011, Mr. Mardis pled guilty to felony menacing and criminal
mischief pursuant to a deferred judgment and sentence (DJS) agreement. (ECF No.
20-2 at 1; ECF No. 20-1 at 3, 5, 12). Pursuant to the agreement, if Mr. Mardis
successfully completed a two year term of supervision, his guilty plea would be
withdrawn, and a conviction would not be entered. See Colo. Rev. Stat. § 18-1.3-102
(2014).
Mr. Mardis later violated the terms of his supervision, and on May 22, 2012, the
trial court revoked the DJS, entered judgment on the conviction, and sentenced him to
probation. (ECF No. 20-2 at 1; ECF No. 20-1 at 10, 12). Mr. Mardis did not appeal.
Mr. Mardis later violated the terms of his probation, and on June 20, 2013, the
trial court revoked the probationary sentence and sentenced him to one year in the
custody of the DOC, to be followed by two years of mandatory parole. (ECF No. 20-2 at
1; ECF No. 20-1 at 5, 8, 10). Mr. Mardis did not appeal.
On August 1, 2014, Mr. Mardis filed a postconviction motion pursuant to
Colorado Rule of Criminal Procedure 35(c). (ECF No. 20-1 at 8). On October 31, 2014,
the trial court denied the motion in a written order. (ECF No. 20-2). Mr. Mardis
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appealed and that appeal remains pending. (ECF No. 20-1 at 7; ECF No. 20-3).
Mr. Mardis initiated the instant action in this Court on October 23, 2014. In the
Amended Application, Mr. Mardis asserts three claims: (1) that he was “falsely
convicted” because his “public defender misrepresented me and unconscionably took
the plea” for him; (2) that he acted “under duress and necessity” to defend himself and
thus, there was insufficient evidence to support the conviction of felony menacing; and
(3) that he received ineffective assistance of counsel because his public defender
“illegally accepted the plea” from me and made fraudulent misrepresentations. (ECF
No. 16 at 5-6).
II.
Timeliness
Respondents argue that this action is barred by the one-year limitation period in
28 U.S.C. § 2244(d). Section 2244(d) 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;
© 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 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
when the judgment of conviction in Mr. Mardis’ criminal case became final. Mr. Mardis
initially pled guilty pursuant to a DJS agreement on November 9, 2011. (See ECF No.
20-1 at ; ECF No. 20-2 at ). However, it is unclear whether this amounts to a “judgment
of conviction.” See Aguilar-Alvarez v. Holder, 528 Fed. Appx. 862, 868-69 (10th Cir.
2013) (recognizing that whether a deferred adjudication constitutes a “judgment”
sufficient to trigger the statutory time period under § 2244(d)(1) is an “open question”).
This Court has treated a Colorado DJS as insufficiently final to allow habeas
relief on at least one occasion. See Gross v. Davis, 2012 WL 2863236, No. 12-cv001041-BNB (D. Colo. July 11, 2012). This decision, however, was premised on the
fact that Colorado law appeared to provide no mechanism to challenge a DJS, because
a DJS could not be directly appealed or collaterally attacked. See People v. Carbajal,
198 P.3d 102, 105 (Colo. 2008) (holding that a “deferred judgment is not a final
judgment, and thus may not be subject to either Crim. P. 35 review or direct appellate
review until revoked.”). The Colorado Supreme Court has since clarified that a
defendant sentenced pursuant to a DJS may challenge the agreement under Colo. R.
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Crim. P. 32(d) by seeking to withdraw a guilty plea prior to sentencing. See Kazadi v.
People, 291 P.3d 16, 21-23 (Colo. 2012).
However, the Court need not decide whether Mr. Mardis’ guilty plea under the
DJS agreement constitutes a state court judgment that triggers the one-year limitation
period because the application is untimely regardless. Here, Mr. Mardis pled guilty
pursuant to the DJS agreement on November 9, 2011. (ECF No. 20-2 at 1; ECF No.
20-1 at 3, 5, 12). When Mr. Mardis admitted to violating the terms of his supervision
under the DJS, the trial court revoked the DJS, entered a final conviction, and
sentenced Mr. Mardis to probation on May 22, 2012. (ECF No. 20-2 at 1; ECF No. 20-1
at 10, 12). Even though Mr. Mardis was later resentenced to one year in the DOC and
two years of mandatory parole following revocation of his probation in 2013, this
resentencing does not start a new limitations period except with respect to claims
concerning the resentencing. See, e.g., Bachman v. Bagley, 487 F.3d 979, 982 (6th
Cir. 2007) (holding that applicant’s designation as a sexual predator did not restart
statute of limitations, as all federal claims relate to original sentence); see also
Prendergast v. Clements, No. 11-cv-03263, 2012 WL 1320157, at *3 (D. Colo. Apr. 17,
2012) (unpublished opinion). The claims that Mr. Mardis asserts in the Application
challenge his 2011 plea agreement and 2012 felony menacing conviction; he does not
assert any claims that challenge his resentencing in 2013.
Therefore, because Mr. Mardis did not file a direct appeal of his conviction and
probationary sentence entered on May 22, 2012, the Court finds that his conviction
became final on July 6, 2012, forty-five days after he was convicted of felony menacing
and sentenced to probation. See Colo. App. R. 4(b); Locke v. Saffle, 237 F.3d 1269,
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1273 (10th Cir. 2001).
The Court also finds that the one-year limitation period began to run on July 6,
2012 because Mr. Mardis 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 factual predicate for his
claims before the judgment became final. See 28 U.S.C. § 2244(d)(1)(B) - (D).
The Court must next determine 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 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 postconviction 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
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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 postconviction application, the limitations period is tolled during the period in which the
petitioner could have sought an appeal under state law.” Gibson, 232 F.3d at 804.
There were no pending postconviction motions in Mr. Mardis’ state court criminal
case between July 6, 2012, and August 1, 2014, when Mr. Mardis filed his first
postconviction motion pursuant to Rule 35(c). (See ECF No. ). Accordingly, the one
year limitation period began to run on July 6, 2012, and ran until it expired on Monday,
July 8, 2013. Because the one-year limitation period expired before Mr. Mardis filed his
first postconviction motion on August 1, 2014, that motion, and any subsequent
motions, could not have tolled the one-year limitation period. See Clark v. Oklahoma,
468 F.3d 711, 714 (10th Cir. 2006) (stating that state court postconviction motions toll
the one-year limitation period only if they are filed within the one-year limitation period).
Mr. Mardis did not file his habeas corpus application in this Court until October 23,
2014, more than one year after the limitations period expired. Therefore, the instant
action is time-barred in the absence of some other reason to toll the one-year limitation
period.
“[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
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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.
Equitable tolling also may be appropriate if the applicant actually is innocent.
See Gibson, 232 F.3d at 808. An actual innocence argument “is premised on the same
fundamental miscarriage of justice exception that was discussed by the Supreme Court”
in Schlup v. Delo, 513 U.S. 298 (1995), and Coleman v. Thompson, 501 U.S. 722
(1991). Therefore, in the rare and extraordinary case in which a habeas applicant can
demonstrate equitable tolling is appropriate on actual innocence grounds, the applicant
is not required to demonstrate he diligently pursued the actual innocence claim. Lopez
v. Trani, 628 F.3d 1228, 1230–31 (10th Cir. 2010). However, to be credible, a claim of
actual innocence requires an applicant “to support his allegations of constitutional error
with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at trial.”
Schlup, 513 U.S. at 324. The applicant then must demonstrate “that it is more likely
than not that no reasonable juror would have convicted him in the light of the new
evidence.” Id. at 327. The Court emphasizes that a “substantial claim that
constitutional error has caused the conviction of an innocent person is extremely rare.”
Id. at 324.
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Mr. Mardis alleges that he has been pursing his rights diligently and that he is
actually innocent. Mr. Mardis, however, fails to provide any new reliable evidence to
support his claim of actual innocence. See Schlup, 513 U.S. at 324; see also Johnson
v. Medina, 547 Fed. Appx. 880, 885 (10th Cir. 2013) (recognizing that actual innocence
claims focus on “new evidence” and that applicant was aware of existence of alternate
suspect during trial). Moreover, “in analyzing the sufficiency of the plaintiff's complaint,
the court need accept as true only the plaintiff's well-pleaded factual contentions, not his
conclusory allegations.” Hall, 935 F.2d at 1110; see also Ketchum v. Cruz, 775 F.
Supp. 1399, 1403 (D. Colo. 1991) (vague and conclusory allegations that his rights
have been violated does not entitle a pro se pleader to a day in court regardless of how
liberally the pleadings are construed), aff'd, 961 F.2d 916 (10th Cir. 1992).
For all these reasons, the Court finds that Mr. Mardis fails to present any
argument that would justify equitable tolling of the one-year limitation period. Therefore,
the action will be dismissed in its entirety as barred by the one-year limitation period.
Because the Court finds that the action is untimely, the Court need not address
Respondents’ additional argument that Mr. Mardis’ claims are unexhausted because he
has not yet invoked one complete round of the State’s established appellate review
process.
Finally, 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 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 Mr. Mardis 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
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Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Application is denied and the action is dismissed because it
is barred by the one-year limitation period in 28 U.S.C. § 2244(d). 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 with leave to re-file in the Tenth Circuit. It is
FURTHER ORDERED that all pending motions are denied.
DATED at Denver, Colorado, this 9th
day of
March
, 2015.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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