Stickler v. Ellis et al

Filing 16

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 4/7/15. No certificate of appealability shall issue, and 15 Motion for the Appointment of Adequate and Effective Counsel is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00075-GPG
JENNIFER M. STICKLER,
Applicant,
v.
KIM ELLIS, Probation Officer, 4th Judicial District Colorado, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL
I. Background
Applicant Jennifer Stickler initiated this action on January 12, 2015, by filing an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Applicant
asserts that she pled guilty to one count of criminal impersonation in State of Colorado
Case No. 2006CR5634, was convicted on March 20, 2007, and was sentenced to two
years of supervised probation. Application, ECF No. 1, at 1-2. In an order entered on
February 18, 2015, Magistrate Judge 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) if Respondents intend to raise either or both of those affirmative
defenses in this action. Respondents also were directed to address whether subject
matter jurisdiction is lacking in this action.
Respondents filed their Pre-Answer Response, ECF No. 11, on March 11, 2015.
Applicant did not reply to the Pre-Answer Response within the time allowed.
Applicant is challenging the continuation of her probation for the past nine years

based on her failure to pay the restitution owed. Applicant’s claims are difficult to
decipher but the Court construes Applicant’s claims as follows:
1. Ineffective assistance of counsel (never informed her of her right to
appeal);
2. Applicant’s postconviction motion has not been “adjudicated” and the
case has been moved from one judge to another without justification;
3. Applicant has completed the two-year original probationary sentence
and the continuing probation violations and sanctions imposed are
constitutionally infirm;
4. Respondent Kim Ellis has perjured herself and not allowed any “fact
finding mission” or “conclusions of law” to take place;”
5. The state district court continues to issue arrest warrants against her
and has caused her to post bond at least two times; and
6. The imposition of restitution and payout order is illegal.
II. Analysis
The Court must construe liberally the Application 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.
Applicant was charged with aggravated motor vehicle theft (over
$15,000), theft ($500 to $15,000), and criminal impersonation. Pre-Answer Resp.,
Attach. 1, ECF No. 11-1, at 4. She pled guilty to criminal impersonation and on October
24, 2007, in exchange for the dismissal of the other charges was sentenced to two
years of probation and restitution. Id. at 15-16. On April 29, 2008, a warrant was
issued for Applicant’s arrest because she had failed to comply with the terms of her
probation. Id. at 14. Applicant was arrested on January 15, 2009, and subsequently
found to have violated the conditions of her probation, which resulted in a revocation of
the probation and a new two-year probation sentence being imposed with additional
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conditions on February 3, 2009. Id. at 13. Then on January 7, 2011, the probation was
extended for twelve months for Applicant to pay restitution, the payment of which was a
condition of probation. Id. Shortly thereafter, on June 21, 2011, the trial court issued an
arrest warrant based on Applicant’s alleged failure to comply with the terms of her
probation. Id. Applicant then filed a motion objecting to the restitution and inadequate
probation hearing on January 15, 2013, which was denied, id., and then followed by her
arrest on May 28, 2013. Id. at 12. The case was reopened, and probation was
“extended” on September 30, 2013, for 12 more months. Id. at 11.
Applicant also requested a stay of execution pursuant to Colo. Rev. Stat. § 1612-103 and Colo. App. R. 8.1(a)(4) of the imposed probation order on November 1,
2013, and filed a notice of appeal on November 12, 2013. Id. at 11. The appeal,
however, was dismissed when Applicant failed to pay the docket fee and failed to
respond to the appellate court’s order to show cause why the case should not be
dismissed for that reason. Pre-Answer Resp., ECF Nos. 11-3 and 11-8, Attachs. 3 and
8. Another arrest warrant for failure to comply with probation was then issued on
January 10, 2014. Attach. 1, ECF No. 11-1, at 10. Applicant was finally arrested a year
later, on January 29, 2015, and is apparently now awaiting a hearing on her continued
failure to comply with probation requirements. Id. at 9. A status conference was
scheduled for March 30, 2015. Id. at 9.
A. Custody Requirement
Pursuant to § 2254(a), “a district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the judgment of a State
court only on the ground that [she] is in custody in violation of the Constitution or laws of
Treaties of the United States.” An individual seeking habeas corpus relief must be in
custody under the challenged conviction or sentence at the time the application is filed.
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Maleng v. Cook, 490 U.S. at 490-91 (citing Carafas v. LaVellee, 391 U.S. 234, 238
(1968)). Relief generally is unavailable through a writ of habeas corpus when an
applicant seeks to challenge a prior conviction for which the person no longer is in
custody. See Lackawanna Cnty. Dist. Att’y v. Coss, 532 U.S. 394, 401 (2001).
The custody requirement extends beyond physical custody to encompass severe
restraints on an individual’s liberty imposed because of the individual’s criminal
conviction, which are not shared by the public generally. See e.g. Hensley v. Municipal
Court, 411 U.S. 345, 351 (1973) (finding that convict released on his own recognizance
pending execution of his sentence is in custody because he is obligated to appear at
times and places ordered by the court); Jones v. Cunningham, 371 U.S. 236, 240-43
(1963) (holding that parolee was in custody under his unexpired sentence because his
release from physical confinement was conditioned on his reporting regularly to parole
officer, remaining in a particular community, residence and job, and refraining from
certain activities); Olson v. Hart, 965 F.2d 940, 942-43 (10th Cir. 1992).
Here, Applicant is subject to continuing probation until she has satisfied in full the
restitution that she owes. She is required to provide random UA’s and attend intensive
outpatient programs. Pre-Answer Resp., ECF No. 11-1, Attach. 1 at 13. Applicant
continues to be on probationary status. The restraints on her liberty, because of her
criminal conviction, are not shared by the public generally. For purposes of § 2254(a)
Applicant is in custody and this Court has authority to entertain her Application.
B. Timeliness
Respondents argue that this action is untimely under the one-year limitation
period set forth in 28 U.S.C. § 2244(d)(1). See ECF No. 7 at 4-6. Section 2244(d)
provides as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of
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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) and Applicant fails to
demonstrate equitable tolling should apply.
Applicant was sentenced on October 24, 2007. Possibly on February 3, 2009,
she was subjected to resentencing and the time for purposes of § 2244(d) began to run
again. Applicant did not appeal the conviction and sentence. At the latest, Applicant’s
conviction and sentence were final on March 20, 2009, when the time ran for appealing
the sentence entered on February 3, 2009. 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, she had forty-five days to file a notice of appeal after she was sentenced.
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Accordingly, for purposes of § 2244(d), time began to run on March 21, 2009, the day
after Applicant’s sentence became final.
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.
The earliest filing by Applicant that possibly could be construed as a collateral
attack of her conviction and sentence was a motion she filed on January 15, 2013, that
objected to the restitution and inadequate probation hearing. ECF No. 11-1 at 13. The
motion was filed almost four years after her conviction and sentence became final.
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 her claims,
§ 2244(d)(1)(C), or she was impeded by state action during this time from filing an
application, § 2244(d)(1(B). Nor does Applicant assert that she could not have
discovered the factual predicate of her claim through the exercise of due diligence.
§ 2244(d)(1)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 [she] shows (1) that [she] 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
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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 she took to pursue his
federal claims. Yang, 525 F.3d at 930.
Applicant fails to assert any basis for finding equitable tolling under Holland. See
Mack, 509 F. App’x at 760. Because the action clearly is time-barred, the Court will
refrain from addressing any exhaustion issues.
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).
III. Conclusion
Based on the above findings, this action will be dismissed pursuant to 28 U.S.C.
§ 2244(d) as untimely.

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 she 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. It is
FURTHER ORDERED that because the action is dismissed pursuant to 28
U.S.C. § 2244(d), the Motion for the Appointment of Adequate and Effective Counsel,
ECF No. 15, is denied as moot.
DATED at Denver, Colorado, this 7th

day of

April

, 2015.

BY THE COURT:

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

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