Baca v. Faulk, et al

Filing 13

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/19/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03121-GPG
CHARLES E. BACA,
Applicant,
v.
JAMES FAULK, Warden, and
JOHN W. SUTHERS, Attorney General of the State of Colorado,
Respondents.

ORDER OF DISMISSAL

Applicant, Charles E. Baca, is a prisoner in the custody of the Colorado
Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr.
Baca initiated this action by filing pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 1). On December 17, 2014, Mr. Baca filed an
amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF
No. 6) (the “Amended Application”). Mr. Baca is challenging the validity of his
conviction in Lincoln County District Court case number 94CR3.
On December 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 January 8, 2015, Respondents filed their PreAnswer Response (ECF No. 11) arguing that the Amended Application is untimely and

that some of Mr. Baca’s claims are unexhausted and procedurally defaulted. On
February 2, 2015, Mr. Baca filed a reply (ECF No. 12) to the Pre-Answer Response.
The Court must construe the Amended Application and other papers filed by Mr.
Baca 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 state court proceedings pertinent to Mr. Baca’s
conviction is taken from an opinion of the Colorado Court of Appeals.
In August 1994, defendant was convicted on nine
felony counts stemming from his attack on three prison
guards while he was an inmate at the Limon Correctional
Facility. His conviction was affirmed on appeal, and the
mandate issued on April 3, 1997. People v. Baca, (Colo.
App. No. 95CA0008, Sept. 5, 1996) (not published pursuant
to C.A.R. 35(f)).
On May 29, 1997, defendant, through counsel, filed a
Crim. P. 35(b) motion for sentence reconsideration. The
motion was denied on July 31, 1997.
On June 5, 1998, in response to defendant’s pro se
request, the trial court appointed the public defender “to
investigate whether a Rule 35C motion should be filed on
defendant’s behalf.” Two weeks later, the public defender
sought to withdraw due to irreconcilable differences, and
asked the trial court to appoint substitute counsel to
“continue representing [defendant] on his motion pursuant to
Crim. P. 35(b) [sic].” (Emphasis added.) On July 22, 1998,
the trial court ruled that any further motion would be
successive and therefore denied as moot defendant’s
request for substitute counsel “for the purpose of filing a
successive 35(b) motion.” (Emphasis added.)
Approximately one year later, by letter dated July 11,
1999, defendant again requested that counsel be appointed
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to assist him in filing a Crim. P. 35(c) motion. The trial court
appointed counsel (first substitute counsel) on July 16, 1999,
“to represent [defendant] re the court’s order denying post
conviction relief dated 7/22/98.” Some six months later,
defendant wrote to the court clerk inquiring about the status
of the case. On January 12, 2000, the court ordered first
substitute counsel to provide a status report within thirty
days. One week later, she responded with a motion to
withdraw, due to a conflict of interest. The court granted the
motion and on February 4, 2000, with only two months
remaining before the three-year deadline under section 16-5402, C.R.S. 2008, appointed second substitute counsel. He
withdrew from the case over three years later, not having
filed any motions. The court appointed new substitute
counsel twice again after expiration of the deadline in
response to defendant’s repeated complaints that nothing
was being done on his case.
Counsel appointed in November 2006 ultimately filed
a Crim. P. 35(c) motion on August 27, 2007, more than
seven years after expiration of the statutory limitation period.
Defendant argued that the motion should be accepted
because the late filing was due to justifiable excuse or
excusable neglect. Specifically, defendant contended that
his postconviction counsel failed to act in his behalf and one
of them erroneously told him that a Crim. P. 35(c) motion
had been filed. Defendant also argued that his “lack of
knowledge of the law, lack of funds, lack of education, and
lack of access to legal representation support[ed] a finding of
excusable neglect.”
The trial court held that defendant had not shown “any
valid reason for filing the Motion beyond the three year
limitation.” On the merits, it concluded that the allegations
did not support findings that trial counsel’s performance fell
below the level of reasonable professional assistance
required or that defendant suffered any prejudice. The court
accordingly denied the motion without a hearing.
People v. Baca, No. 08CA1273, slip op. at 1-3 (Colo. App. July 9, 2009) (unpublished)
(ECF No. 11-7 at 2-4). Mr. Baca appealed and, on appeal, the Colorado Court of
Appeals affirmed in part, reversed as to the finding that the Rule 35(c) motion was

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untimely, and remanded for further proceedings. (See id.)
On remand, the trial court determined Mr. Baca had justifiable excuse or
excusable neglect for his late filing but denied the motion on the merits. That order was
affirmed on appeal. See People v. Baca, No. 12CA0179 (Colo. App. Feb. 14, 2013)
(unpublished) (ECF No. 11-11). On October 7, 2013, the Colorado Supreme Court
denied Mr. Baca’s petition for writ of certiorari. (See ECF No. 11-13.)
Mr. Baca initiated this action on November 19, 2014. In the Amended
Application filed on December 17, 2014, he asserts the following three claims for relief:
(1) trial counsel was ineffective by failing to adequately investigate and
support a defense motion for change of venue;
(2) trial counsel was ineffective by failing to object to the use of a shock
belt on Mr. Baca during trial; and
(3) his constitutional right to due process was violated by: (a) the trial
court’s refusal to fire defense counsel Anthony Viorst and appoint
alternate defense counsel prior to trial; (b) the use of a shock belt on Mr.
Baca at trial that was controlled by biased prison transport officers rather
than Lincoln County sheriff’s deputies or the court bailiff; (c) the
prosecutorial decision to charge Mr. Baca with assaults on correctional
officers and omit charges stemming from the original assault on another
inmate; (d) the trial court’s denial of a defense motion for change of venue;
(e) the trial court’s refusal to dismiss juror Vick for cause; (f) the
unavailability or refusal to provide the defense with crucial medical records
of the inmate victim; and (g) postconviction counsel’s failure to file a 35(c)
motion.
The Court notes initially that claim 3(g) may not be raised in this habeas corpus
action because there is no federal constitutional right to postconviction review in the
state courts. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Thus, a claim of
constitutional error that “focuses only on the State’s post-conviction remedy and not the
judgment which provides the basis for [the applicant’s] incarceration . . . states no

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cognizable federal habeas claim.” Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir.
1998); see also Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (noting that
petitioner’s challenge to state “post-conviction procedures on their face and as applied
to him would fail to state a federal constitutional claim cognizable in a federal habeas
proceeding”). Mr. Baca contends in claim 3(g) only that postconviction counsel failed to
file a Rule 35(c) motion. Therefore, claim 3(g) does not present a cognizable federal
constitutional issue and will be dismissed for that reason.
Respondents first argue that the Amended 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
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.

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(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 the
date on which Mr. Baca’s conviction became final. See 28 U.S.C. § 2244(d)(1)(A). In
general, a conviction becomes final following a decision by the state court of last resort
on direct appeal when the United States Supreme Court denies review, or, if no petition
for writ of certiorari is filed, when the time for seeking such review expires. See Locke
v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001).
The Colorado Supreme Court denied Mr. Baca’s petition for writ of certiorari on
direct appeal on March 24, 1997. (See ECF No. 11-5.) Pursuant to Rule 13.1 of the
Rules of the Supreme Court of the United States, Mr. Baca had ninety days to seek
review in the United States Supreme Court but he did not do so. Therefore, Mr. Baca’s
conviction became final on June 23, 1997, when the time for filing a petition for writ of
certiorari in the United States Supreme Court expired.1
Mr. Baca is not asserting any constitutional rights newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review and he
does not argue that he did not know or could not have discovered the factual predicate
for his federal constitutional claims before his conviction became final. See 28 U.S.C. §
2244(d)(1)(C) & (D).

1

The ninetieth day after March 24, 1997, was Sunday, June 22, 1997. Therefore, the filing period
extended until Monday, June 23, 1997. See Sup. Ct. R. 30.1.

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Mr. Baca also fails to allege facts that demonstrate he was prevented by
unconstitutional state action from filing this action sooner. See 28 U.S.C. §
2244(d)(1)(B). To the extent Mr. Baca contends postconviction counsel and the State
are responsible for the delay in filing a postconviction Rule 35(c) motion and that he was
housed in maximum security without access to adequate legal research materials, those
arguments lack merit in the context of § 2244(d)(1)(B). Mr. Baca does not have a
constitutional right to postconviction review or appointment of counsel in postconviction
proceedings. See Finley, 481 U.S. at 556-57. Mr. Baca does have a constitutional right
of access to the courts, but the United States Constitution does not guarantee prisoners
“an abstract, freestanding right to a law library or legal assistance.” Lewis v. Casey, 518
U.S. 343, 351 (1996).
In order to establish a violation of the constitutional right of
access, an inmate must demonstrate, among other things,
how the alleged shortcomings in the prison actually
“hindered his efforts to pursue a legal claim.” Lewis, 518
U.S. at 351, 116 S. Ct. 2174. It follows that, to invoke §
2244(d)(1)(B)’s tolling provision-to show that an “impediment
. . . created by State action in violation of the Constitution . . .
prevented” the filing of a timely petition-an inmate must
explain how the prison’s alleged constitutional deficiencies
hindered his efforts to pursue his claim within the prescribed
statute of limitations. See Miller v. Marr, 141 F.3d 976, 978
(10th Cir. 1998) (denying relief where petitioner “provided no
specificity regarding the alleged lack of access” and how it
impacted his delay, explaining that “[i]t is not enough to say
that the [prison] facility lacked all relevant statutes and case
law or that the procedure to request specific materials was
inadequate”); Garcia v. Hatch, 343 Fed. Appx. 316, 318 (10th
Cir. 2009) (unpublished) (same); Weibley v. Kaiser, 50 Fed.
Appx. 399, 403 (10th Cir. 2002) (unpublished) (holding
petitioner’s claim “insufficient because he does not allege
specific facts that demonstrate how his alleged denial of
[legal] materials impeded his ability to file a federal habeas
petition” in a timely manner).
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Mayes v. Province, 376 F. App’x 815, 816-17 (10th Cir. 2010); see also Lloyd v. Van
Natta, 296 F.3d 630, 633 (7th Cir. 2002) (stating “that whatever constitutes an
impediment [under § 2244(d)(1)(B)] must prevent a prisoner from filing his petition”).
Mr. Baca fails to allege specific facts that demonstrate his constitutional rights
were violated or that he actually was prevented from filing a federal habeas petition. As
a result, the Court concludes that § 2244(d)(1)(B) is not applicable and that the oneyear limitation period began to run when Mr. Baca’s conviction became final on June 23,
1997.
Mr. Baca did not initiate this action within one year after June 23, 1997.
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
purposes of § 2244(d)(2) is a matter of federal law, but “does require some inquiry into
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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.
In addition to statutory tolling under § 2244(d)(2), the one-year limitation period
also may be tolled 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).
The Court agrees with Respondents that the one-year limitation period was tolled
pursuant to § 2244(d)(2) while Mr. Baca’s postconviction Rule 35(b) motion was
pending. As noted above, the Rule 35(b) motion was filed on May 29, 1997, which was
before the one-year limitation period began to run, and was denied on July 31, 1997.
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Pursuant to the version of Rule 4(b) of the Colorado Appellate Rules applicable at the
time the Rule 35(b) motion was denied, Mr. Baca had forty-five days to file a notice of
appeal2 but he did not do so. Therefore, the one-year limitation period was tolled until
the time to appeal expired on September 15, 1997.3
The issue of whether the one-year limitation period should be tolled for any
additional period of time after September 15, 1997, is complicated by the confusing and
protracted state court proceedings relevant to Mr. Baca’s efforts to seek postconviction
relief under Rule 35(c). However, even assuming, as Respondents do, that the oneyear limitation period was tolled for equitable reasons from July 22, 1998, until the
Colorado Supreme Court denied certiorari review in connection with the state court
postconviction Rule 35(c) proceedings on October 7, 2013, the instant action still is
untimely.
Respondents are correct that the time between September 15, 1997, and July
22, 1998, which is approximately ten months, counts against the one-year limitation
period. Respondents also are correct that the time after the state court postconviction
proceedings concluded on October 7, 2013, and before this action was commenced on
November 19, 2014, which by itself exceeds one year, counts against the one-year
limitation period. Mr. Baca’s contention that he is entitled to an additional ninety days of
statutory tolling under § 2244(d)(2) after October 7, 2013, to file a petition for writ of
certiorari in the United States Supreme Court lacks merit. See Lawrence v. Florida, 549
2

The current version of Colo. App. R. 4(b), amended effective July 1, 2012, allows forty-nine days
to file a notice of appeal.
3

The forty-fifth day after July 31, 1997, was Sunday, September 14, 1997. Therefore, the filing
deadline extended until Monday, September 15, 1997. See C.A.R. 26(a).

10

U.S. 327, 332 (2007) (“The application for state postconviction review is therefore not
‘pending’ after the state court’s postconviction review is complete, and § 2244(d)92)
does not toll the 1-year limitations period during the pendency of a petition for
certiorari.”). Therefore, even assuming the one-year limitation period was equitably
tolled from July 1998 until October 2013, this action is untimely.
Mr. Baca presents several arguments relevant to equitable tolling, including his
assertions that the attorneys appointed to represent him in the state court
postconviction proceedings abandoned his case, that the State is responsible for the
delays in the state court postconviction proceedings because the State failed to monitor
the appointed postconviction attorneys who were allowed to procrastinate, and that he
was confined in a maximum security setting without access to adequate legal research
materials. However, these arguments do not address the propriety of equitable tolling
for any period of time other than the time from July 1998 to October 2013 that the Court
already has assumed should be excluded. Furthermore, even assuming Mr. Baca could
identify some extraordinary factor that would justify equitable tolling after October 2013,
he fails to allege any facts that demonstrate he pursued his claims diligently during that
period of time.
In conclusion, Mr. Baca’s federal constitutional claims are untimely and will be
dismissed for that reason. Because the entire action will be dismissed for the reasons
specified, the Court will not address Respondents’ alternative argument that some of
Mr. Baca’s claims are 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 will be denied for the purpose of
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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 claim 3(g) in the Amended Application is dismissed for failure to
raise a cognizable federal constitutional issue. It is
FURTHER ORDERED that Applicant’s federal constitutional claims in the
Amended Application are dismissed as untimely. It is
FURTHER ORDERED that the Application (ECF No. 1) and the Amended
Application (ECF No. 6) are denied and the action is dismissed. 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

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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

19th

day of

February

, 2015.

BY THE COURT:

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

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