Tanksley v. Falk et al

Filing 13

ORDER OF DISMISSAL. ORDERED that no certificate of appealability will issue because Applicant has not made a substantial showing of the denial of a constitutional right. By Judge Lewis T. Babcock on 2/6/2015. (tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03100-GPG
JIMMY W. TANKSLEY,
Applicant,
v.
JAMES FALK, Warden, Sterling Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Jimmy W. Tanksley, is a prisoner in the custody of the Colorado
Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr.
Tanksley 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 88CR833.
On November 18, 2014, Magistrate Judge Gordon P. Gallagher 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 December 18, 2014, Respondents filed their
Pre-Answer Response (ECF No. 11) arguing that the Application is untimely and that
Mr. Tanksley’s claim is unexhausted and procedurally defaulted. On December 31,
2014, Mr. Tanksley filed a reply (ECF No. 12) to the Pre-Answer Response.

The Court must construe the Application and other papers filed by Mr. Tanksley
liberally 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 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 as untimely.
The following description of the factual and procedural background pertinent to
Mr. Tanksley’s conviction is taken from an opinion of the Colorado Court of Appeals.
The People appeal from a judgment of the trial court
dismissing charges of first degree assault, second degree
motor vehicle theft, and crime of violence against the
defendant, Jimmy Tanksley. The trial court dismissed the
charges upon finding a violation of the provisions of the
Interstate Agreement on Detainers (IAD), § 24-60-501, et
seq., C.R.S. (1988 Repl. Vol. 10B). We reverse.
On September 23, 1985, a criminal complaint
charging the defendant with these crimes was filed in
Denver, Colorado, and shortly thereafter, a warrant was
issued for his arrest. On January 2 or 3, 1986, in Honey
Grove, Texas, the defendant was arrested on the Colorado
warrant and on a charge arising in Texas. Although
Colorado authorities requested in writing that the Colorado
warrant be placed as a detainer upon the defendant, Texas
authorities did not honor this request, nor did they advise
Colorado authorities that their request for a detainer had
been received. The defendant was informally aware of the
Colorado charges and was told he could sign extradition
papers, but was not taken before a court to be formally
advised on these matters.
Subsequently, the defendant was convicted on the
Texas charge, was incarcerated in the Texas Department of
Corrections, and was released on parole in August 1986.
Soon after that release, the defendant was arrested in
Bonham, Texas, pled guilty to a new Texas charge, and
received a 35-year sentence.
On July 6, 1987, while incarcerated, the defendant
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was notified by Texas authorities of the detainer for the
Colorado charges. Sometime thereafter, in July 1987, he
was formally advised for the first time of his rights under the
IAD.
Upon being returned to Colorado, defendant moved to
dismiss the charges. The trial court granted the motion and
found that there was a violation of the notification provision
of § 24-60-501, art. III(c), C.R.S. (1988 Repl. Vol. 10B) in
that defendant should have been notified of the detainer and
advised of his rights in early 1986.
The prosecution contends that the provisions of the
IAD were not activated because no detainer was lodged
against the defendant until July 1987, when he was formally
advised. We agree.
People v. Tanksley, No. 86CA1166, slip op. at 1-2 (Colo. App. May 25, 1989) (not
selected for publication) (ECF No. 11-6 at 2-3). Mr. Tanksley alleges that he had been
returned to Texas before the Colorado Court of Appeals reversed the trial court’s order
dismissing the charges against him.
Mr. Tanksley was returned to Colorado for a jury trial in 1991. He was convicted
of second degree assault on a peace officer and second degree motor vehicle theft. He
was sentenced to twelve years in prison to be served consecutively to his Texas
sentence and he again was returned to Texas. The Colorado Court of Appeals affirmed
the judgment of conviction on direct appeal. See People v. Tanksley, No. 91CA0827
(Colo. App. Aug. 13, 1992) (not selected for publication) (ECF No. 11-2). On February
16, 1993, the Colorado Supreme Court denied Mr. Tanksley’s petition for writ of
certiorari on direct appeal. (See ECF No. 11-3.)
On June 21, 1993, the trial court denied Mr. Tanksley’s postconviction motion
pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure. (See ECF No. 11-

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1 at 12.)
Mr. Tanksley alleges that he was released on parole by Texas authorities in 2002
and returned to Colorado. Beginning in November 2003 Mr. Tanksley filed a series of
postconviction motions in his Colorado criminal case, all of which were denied. (See id.
at 2-3.)
In December 2013 Mr. Tanksley filed in Colorado state court a petition for writ of
habeas corpus claiming the trial court lacked jurisdiction over his criminal case and that
his rights under the United States Constitution and the IAD had been violated. (See
ECF Nos. 11-10 & 11-11.) The state district court denied the petition and, on October
30, 2014, the district court’s order was affirmed by the Colorado Supreme Court. (See
ECF Nos. 11-13 & 11-15.)
The Application was filed on November 18, 2014. Mr. Tanksley asserts one
claim for relief premised on the fact that he was convicted following a trial in 1991, some
three years after he was returned to Texas because the original charges against him
had been dismissed. He specifically contends that the trial court lacked jurisdiction
when he was tried and that he is entitled to immediate release because his rights under
the United States Constitution and the IAD were violated.
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
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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).
Mr. Tanksley contends in his reply to the Pre-Answer Response that a
jurisdictional claim like the one he is asserting can never be time-barred. This argument
lacks merit. See Morales v. Jones, 417 F. App’x 746, 749 (10th Cir. 2011) (state court’s
lack of subject matter jurisdiction is cognizable only as a due process claim and “[a]s
with any other habeas claim, it is subject to dismissal for untimeliness.”). Therefore, the
Court will consider whether Mr. Tanksley’s claim is timely.
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).
Mr. Tanksley’s conviction became final prior to April 24, 1996, the date the one-year
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limitation period in § 2244(d) was enacted into law. He does not allege that he was
prevented by unconstitutional state action from filing the instant action sooner, he is not
asserting any constitutional rights newly recognized by the Supreme Court, and he
knew or could have discovered the factual predicate for his federal constitutional claim
at the time he was convicted. See 28 U.S.C. § 2244(d)(1)(B) - (D). Therefore, because
Mr. Tanksley’s conviction became final before § 2244(d) was enacted into law, the
one-year limitation period began to run on April 24, 1996. See Hoggro v. Boone, 150
F.3d 1223, 1225-26 (10th Cir. 1998) (one-year limitation period begins on April 24, 1996,
for convictions that became final prior to the effective date of § 2244(d)).
Mr. Tanksley did not initiate this action within one year after April 24, 1996.
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
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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
during the period in which the petitioner could have sought an appeal under state law.”
Gibson, 232 F.3d at 804.
As noted above, Mr. Tanksley filed a postconviction Rule 35(b) motion that was
denied in June 1993 and, beginning in November 2003, he filed in state court a series of
postconviction motions challenging the validity of his Denver District Court conviction
and sentence. The Rule 35(b) motion did not toll the one-year limitation period because
the Rule 35(b) motion was not pending for any period of time after the one-year
limitation period commenced in April 1996. The other postconviction motions Mr.
Tanksley filed in his Denver District Court case also did not toll the one-year limitation
period because they were filed long after the one-year limitation period already had
expired in April 1997. 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). As a result, 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
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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. Tanksley fails to allege facts or present any argument that justify equitable
tolling. He does not allege facts that demonstrate he pursued his claims diligently and
he fails to identify any extraordinary circumstance that prevented him from filing in a
timely manner. The fact that Mr. Tanksley was incarcerated in Texas when the oneyear limitation period commenced and expired, by itself, does not justify equitable
tolling. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (alleged lack of access to
relevant legal materials while housed out of state not sufficient to justify equitable
tolling). Therefore, the Court finds no basis for equitable tolling of the one-year
limitation period.
The Application is untimely and will be dismissed for that reason. Because the
Court finds that the Application is untimely, the Court need not address Respondents’
alternative argument that Mr. Tanksley’s claim is unexhausted and procedurally
defaulted. 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
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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. 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 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 6th

day of

February

, 2015.

BY THE COURT:

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

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