Kinney v. Diggins et al
ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/29/15. No certificate of appealability will issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03288-GPG
ANTHONY T. KINNEY,
SHERIFF D. DIGGINS, and
JOHN SUTHERS, The Attorney General of the State of Colorado,
ORDER OF DISMISSAL
Applicant, Anthony T. Kinney, a prisoner currently detained at the Denver County
Jail, 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). He is challenging the validity of his
conviction and sentence in Arapahoe County District Court case number 07CR1228.
On December 4, 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 16, 2014, Respondent Attorney
General of the State of Colorado, through his counsel, filed a Pre-Answer Response
(ECF No. 9) arguing that the Application is untimely and that Mr. Kinney’s claims are
unexhausted and procedurally barred.1 Mr. Kinney did not file a reply to the Pre-Answer
Response despite being given an opportunity to do so.
The Court must construe the Application filed by Mr. Kinney 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.
Mr. Kinney was charged with escape, motor vehicle theft, three counts of identity
theft, three counts of forgery, criminal possession of a financial device, theft, and three
counts of habitual criminal. (See ECF No. 9-1 at 2-5.) Pursuant to a plea agreement,
he pled guilty to escape and one count of identity theft with a sentence cap of twelve
years. (Id. at 13-14.) On November 8, 2007, the state district court sentenced him to
eight years in prison and five years parole. (Id.) He did not appeal his judgment of
conviction or sentence.
On March 4, 2008, Mr. Kinney filed a motion for sentence reconsideration. (ECF
No. 9-1 at 12.). The state district court denied the motion on April 15, 2008. (Id. at 12.)
Mr. Kinney filed a notice of appeal on August 8, 2008. (Id.)
While the appeal was pending, Mr. Kinney filed a second motion for
reconsideration on August 12, 2008, which the state court denied on September 22,
2008. (ECF No. 9-1 at 11.) On November 21, 2008, the Colorado Court of Appeals
On January 7, 2015, Respondent D. Diggins filed, through his counsel, a “Motion
for Late Filing of Joinder in State’s Pre-Answer Response” (ECF No. 10). The motion is
issued an order to show cause why the appeal should not be dismissed with prejudice
for failure to timely appeal the April 15, 2008 order and proceed solely on the
September 22, 2008 order denying Mr. Kinney’s second motion for reconsideration (Id.)
The Colorado Court of Appeals dismissed the appeal on June 10, 2009, finding that Mr.
Kinney failed to show good cause. (Id. at 12.) The mandate issued on August 10,
While the appeal was pending, Mr. Kinney also filed a motion for postconviction
relief pursuant to Colo. Crim. P. 35(c) on February 17, 2009 . (ECF No. 9-1 at 10.) The
state court denied the motion on February 23, 2009. (Id.) Mr. Kinney did not appeal.
In July and August 2009, Mr. Kinney submitted two letters with attachments to
the state district court, which were denied. (ECF No. 9-1 at 10.) Mr. Kinney did not
Mr. Kinney filed another letter on September 11, 2009, which the state district
court treated as a petition for reconsideration and denied it as successive and untimely.
(ECF No. 9-1 at 10). Mr. Kinney did not appeal.
On March 10, 2010, Mr. Kinney sent a letter to the state district court apparently
requesting information about presentence confinement credit. (ECF No. 9-1 at 10.)
According to the register of actions, the state district court sent Mr. Kinney a copy of the
mittimus on March 12, 2010. (Id.)
On April 2, 2010, Mr. Kinney sent a letter to the state district court concerning his
judgment of sentence. (ECF NO. 9-1 at 10.) The state court issued a response on April
15, 2010. (Id.)
On September 16, 2010, Mr. Kinney filed a motion for presentence confinement
credit, and filed a second such motion on September 20, 2010. (ECF No. 9-1 at 9-10.)
Both motions were denied. (Id.) Mr. Kinney did not appeal.
On January 19, 2012, Mr. Kinney filed a request for copies of the registers of
actions and mittimuses in three of his criminal cases. (ECF No. 9-1 at 9.) The state
district court accommodated this request on February 21, 2012. (Id.)
There were no additional filings until February 21, 2014, when Mr. Kinney filed
the first of several motions for postconviction relief. (See ECF No. 9-1 at 6-9.) The
state district court denied all the motions and Mr. Kinney did not appeal any of the
orders denying his motions. (Id.)
The instant action was commenced on December 4, 2014, and Mr. Kinney
asserts three claims for relief in the Application. He contends that his plea agreement
was broken (claim one); that his counsel was ineffective (claim two); and that prison
officials have discriminated against him and denied him access to programs that would
permit him to seek sentence reconsideration (claim three).
Respondents first argue that claim three challenges the execution of the
sentence Mr. Kinney is serving rather than the validity of his conviction or sentence and
may not be raised in this habeas corpus action pursuant to 28 U.S.C. § 2254. The
Court agrees, and therefore, claim three will be dismissed from this action without
prejudice. Mr. Kinney may include any federal constitutional claims challenging the
execution of his sentence in an application for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 in a separate habeas corpus action.
Respondents next argue that the remaining claims and action are untimely
pursuant to the one-year limitation period in 28 U.S.C. § 2244(d). That statute 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;
© 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
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
(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
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. Kinney’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).
Here, Mr. Kinney was sentenced on November 8, 2007. Mr. Kinney did not
appeal his judgment and sentence, and therefore, his conviction became final on
December 24, 2007, the date on which the time for filing an appeal expired.2
Mr. Kinney does not argue that he is asserting any constitutional rights newly
recognized by the Supreme Court and made retroactively applicable to cases on
collateral review; that he was prevented by unconstitutional state action from filing this
action sooner; or that the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)(B), (C), &
Based on Mr. Kinney’s allegations, the Court cannot conclude that the one-year
limitation period began to run on some date after Mr. Kinney’s conviction. Therefore,
pursuant to § 2244(d)(1)(A), the one-year limitation period began to run when his
conviction became final on December 24, 2007. Mr. Kinney did not initiate this action
within one year after December 24, 2007. Therefore, the next question the Court must
answer 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
The 45th day was Sunday, December 23, 2007. See Colo. App. R. 4(b).
Therefore, the filing period extended until Monday, December 24, 2007.
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
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
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.
Respondents are willing to concede that the one-year limitation period was tolled
pursuant to § 2244(d)(2) while Mr. Kinney’s “first round” of postconviction activity was
pending from March 4, 2008, when he filed a motion for sentence reconsideration and
ended on November 15, 2010, when the time expired to appeal the state district court’s
September 30, 2010 order denying his motion for presentence confinement credit.
Respondents contend, however, that from November 15, 2010 until February 21, 2014,
the limitation period ran unabated for more than three years.
The Court agrees. The Court assumes that the one-year limitation period was
tolled pursuant to § 2244(d)(2) with respect to Mr. Kinney’s “first round” of
postconviction activity from March 4, 2008 through November 15, 2010. The Court
further finds that Mr. Kinney did not file any postconviction motion in the state court from
November 15, 2010 until February 21, 2014, when he filed a motion pursuant to Colo.
Crim. P. 35(c) The only fling during this three-year period was Mr. Kinney’s January 19,
2012 request for copies of the registers of action and mittimuses in three of his criminal
cases. (See ECF No. 9-1 at 9). This request is not a properly filed postconviction
motion and does not toll the limitation period. See May v. Workman, 339 F.3d 1236,
1237 (10th Cir. 2003) (postconviction motions for transcripts and petitions for writs of
mandamus relating to those motions do not toll the one-year time bar). Therefore,
regardless of any tolling that may have occurred during Mr. Kinney’s first round of state
postconviction activity, more than three years elapsed between November 2010 and
February 2014 when no tolling occurred. Thus, the Court finds that the application is
untimely in the absence of further tolling.
The one-year limitation period in § 2244(d) is not jurisdictional and 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).
Construing Mr. Kinney’s allegations liberally, he argues that equitable tolling is
appropriate because “I was not aware that I could address my issues in the federal
courts and once my appeal and post conviction remedies were denied I thought that
was it.” Mr. Kinney’s argument does not justify equitable tolling of the one-year
limitation period. The fact that Mr. Kinney was a “layman” and did not know proper legal
procedures is not sufficient to justify equitable tolling. “[I]t is well established that
ignorance of the law, even for an incarcerated pro se petitioner, generally does not
excuse prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (internal
quotation marks omitted). Even when Mr. Kinney’s pro se status is considered together
with his assertion that he was “limited from getting legal access,” the Court still finds that
equitable tolling is not justified. See Gibson, 232 F.3d at 808 (“a claim of insufficient
access to relevant law . . . is not enough to support equitable tolling.”). “Even with
limited access to a prison law library, he could raise [in federal court] only issues
previously submitted in state court, so much of the research would already have been
done.” Coppage v. McKune, 534 F.3d 1279, 1282 (10th Cir. 2008). In short, Mr. Kinney
fails to demonstrate that he was prevented from filing the Application in a timely
manner. Therefore, the Court finds that Mr. Kinney fails to demonstrate that equitable
tolling is appropriate.
In conclusion, the Application will be denied as time-barred. Therefore, the Court
need not address Respondents’ additional argument that claims one and two are
unexhausted and procedurally defaulted. Furthermore, 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 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
for the reasons specified in this order. 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 29th
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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