Goree v. Tafoya et al

Filing 17

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pampers on appeal, by Judge Lewis T. Babcock on 6/19/15. No certificate of appealability will issue, and Applicant's motion for appointment of counsel 15 is denied. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00592-GPG
SHAUNTIEL DENELLE GOREE,
Applicant,
v.
LAURIE TAFOYA, Warden La Vista Correctional Facility, and
CYNTHIA COFFMAN, Attorney General of the State of Colorado,
Respondents.

ORDER OF DISMISSAL

Applicant, Shauntiel Denelle Goree, is a prisoner in the custody of the Colorado
Department of Corrections. Ms. Goree has filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). Ms. Goree is challenging
the validity of her conviction and sentence in Arapahoe County District Court case
number 94CR782.
On March 26, 2015, 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 April 28, 2015, Respondents filed their PreAnswer Response (ECF No. 12) arguing that the application is barred by the one-year
limitation period. On June 9, 2015, Ms. Goree filed “Applicant’s Reply to
Respond[e]nt[s’] Pre-Answer Response” (ECF No. 16).

The Court must construe the application and other papers filed by Ms. Goree
liberally because she 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 Colorado Court of Appeals described the relevant factual and procedural
background as follows:
In 1994, defendant and two accomplices stabbed two
women to death. The People charged defendant with two
counts of first degree murder after deliberation; two counts of
felony murder; one count each of conspiracy, burglary, and
robbery; and three crime of violence counts. Before trial, the
prosecution proposed a plea agreement to defendant
pursuant to which she would plead guilty to attempted
second degree murder and agree to testify against her
codefendants, and the prosecution, in exchange, would seek
a sentence of no more than twelve years in prison for the
offense. Defendant rejected that offer.
A jury convicted defendant of all counts, and the
district court sentenced her to four consecutive life
sentences without the possibility of parole on each of the first
degree murder and felony murder convictions, and additional
consecutive prison terms totaling ninety-six years on the
remaining convictions. On direct appeal, a division of this
court vacated defendant’s first degree murder and felony
murder convictions because they merged, remanded the
case for correction of the mittimus to show that defendant
was convicted of one first degree murder count per victim,
and affirmed the remainder of the convictions and
sentences. See People v. Goree, (Colo. App. No.
95CA0571, Dec. 12, 1996) (not published pursuant to C.A.R.
35(f)).
In December 2007, defendant filed a cursory Crim. P.
35(c) motion which was supplemented by court-appointed
counsel in March 2011. In the supplemental motion,
defendant alleged that she had rejected the plea offer
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because her codefendant had threatened her and her family
if she accepted it, and, because the two attorneys who
represented her throughout her trial had failed to investigate
those threats, she had received ineffective assistance of
counsel.
Following a hearing at which defendant, her mother,
her trial attorneys and the prosecuting attorney testified, the
court denied defendant’s motion in a detailed written order.
The court found, based on the testimony of her trial
attorneys and her interactions with the codefendant during
the trial, that counsel neither knew about the threat or had
any reason to suspect that she had rejected the plea
because of a threat. Thus, because counsel were unaware
of the threat, the court concluded that their failure to
investigate the same could not constitute deficient
performance, and her ineffective assistance of counsel claim
necessarily failed.
People v. Goree, No. 12CA0447, slip op. at 1-3 (Colo. App. Aug. 22, 2013) (ECF No.
12-8 at 2-4). On June 16, 2014, the Colorado Supreme Court denied Ms. Goree’s
petition for writ of certiorari in the state court postconviction proceedings. (See ECF No.
12-10.)
Ms. Goree initiated this action on March 20, 2015, asserting two claims for relief.
She first claims trial counsel were ineffective by failing to investigate and make the trial
court aware of her codefendant’s threats, which caused her to reject a favorable plea
agreement. She contends in her second claim that her Fifth and Sixth Amendment
rights were violated because the trial court denied her motions for a severance.
As noted above, Respondents argue that the application is barred by the oneyear 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–
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(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).
In order to apply the one-year limitation period the Court first must determine the
date on which Ms. Goree’s conviction became final. See 28 U.S.C. § 2244(d)(1)(A).
The starting point for this determination is September 25, 1997, the date the trial court
entered an amended judgment of conviction on remand following Ms. Goree’s direct
appeal. (See ECF No. 12-1 at 15-16.) Because Ms. Goree did not appeal following
entry of the amended judgment of conviction, her conviction became final when the time
to file an appeal expired. Pursuant to the version of Rule 4(b) of the Colorado Appellate
Rules applicable when the amended judgment of conviction was entered, Ms. Goree
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had forty-five days to file a notice of appeal. The forty-fifth day after September 25,
1997, was Sunday, November 9, 1997, which means the filing deadline extended one
additional day until Monday, November 10, 1997. See C.A.R. 26(a). Therefore, Ms.
Goree’s conviction was final on November 10, 1997.
Ms. Goree does not allege or argue that she was prevented by unconstitutional
state action from filing this action sooner, she is not asserting any constitutional rights
newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review, and she knew or could have discovered the factual predicate for her
claims before her conviction became final. See 28 U.S.C. § 2244(d)(1)(B) - (D). As a
result, the Court finds that the one-year limitation period began to run when her
conviction became final on November 10, 1997.
Ms. Goree did not initiate this action within one year after November 10, 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.
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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.
In addition to statutory tolling under § 2244(d)(2), the one-year limitation period
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 [s]he has
been pursuing h[er] rights diligently” and “that some extraordinary circumstance stood in
h[er] way” and prevented her 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 she pursued her claims diligently, the
petitioner must “allege with specificity ‘the steps [s]he took to diligently pursue h[er]
federal claims.’” Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008) (quoting Miller,
141 F.3d at 978).
On December 11, 1997, Ms. Goree filed a postconviction motion for
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reconsideration of her sentence pursuant to Rule 35(b) of the Colorado Rules of
Criminal Procedure. (See ECF No. 12-1 at 15.) The trial court denied the Rule 35(b)
motion on February 16, 1998, and Ms. Goree did not appeal. (See id.) Respondents
concede that the one-year limitation period was tolled pursuant to § 2244(d)(2) while the
Rule 35(b) motion was pending and that the Rule 35(b) motion remained pending until
the time to appeal from the denial of that motion expired on April 2, 1998. However,
Respondents are correct that the time after November 10, 1997, when Ms. Goree’s
conviction became final, and before December 11, 1997, when she filed the Rule 35(b)
motion, counts against the one-year limitation period. That period of time was 30 days.
Therefore, only 335 days (365 - 30 = 335) remained when the one-year limitation period
began to run again on April 3, 1998.
The remaining 335 days ran unabated after April 3, 1998, until the one-year
limitation period expired in March 1999. Because the one-year limitation period expired
before Ms. Goree filed her postconviction Rule 35(c) motion in December 2007, the
Rule 35(c) motion did not toll the one-year limitation period. 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).
Ms. Goree argues that this action should not be dismissed as untimely because
she was housed in prisons outside of Colorado from 1995 until 2006; she had no
access to Colorado legal research materials during that time; she filed a Rule 35(c)
motion in the trial court in December 2007; the state court proceedings relevant to the
Rule 35(c) motion remained pending until the Colorado Supreme Court denied her
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petition for writ of certiorari on June 16, 2014; and she filed the instant action on March
20, 2015, less than one year after the state court Rule 35(c) proceedings concluded.
Ms. Goree also contends that she had no one to assist her before and after the state
court Rule 35(c) proceedings and she specifically alleges the following with respect to
the time after the Rule 35(c) proceedings concluded:
After my writ was denied in 2014, Leslie Goldstein, my
attorney, told me that I could file a Federal Habeas Corpus
and that I only had a year to do so, she could not file it for
me because she said she wasn’t versed in federal law then
she ended our attorney client relationship. Then I wrote the
Federal Public Public [sic] Defenders office and requested
an Application. They sent me the application, along with a
letter stating they could not represent me unless they were
appointed to my case, but encouraged me to file it on my
own. I held on to it until March 2015, because I had no idea
where to begin and no one to help me. A friend of mine
decided to try and help me, we did the application and filed it
March 20, 2015.
(ECF No. 16 at 3.)
Ms. Goree fails to allege facts that justify equitable tolling of the one-year
limitation period. For one thing, she fails to identify extraordinary circumstances that
prevented her from filing in a timely manner. The fact that Ms. Goree was incarcerated
outside of Colorado when the one-year 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). The fact that Ms. Goree was not represented by
counsel before and after the state court Rule 35(c) proceedings also is not an
extraordinary circumstance that might justify equitable tolling. “[I]t is well established
that ignorance of the law, even for an incarcerated pro se petitioner, generally does not
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excuse prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (internal
quotation marks omitted); see also Horton v. Kaiser, No. 99-6285, 2000 WL 216614 at
*2 (10th Cir. Feb. 23, 2000) (“the unavailability of counsel or other ‘trained persons’ to
assist him does not constitute proper ‘cause’ to justify his failure to file a timely
petition”).
Furthermore, even if the one-year limitation period could be tolled for equitable
reasons until Ms. Goree was returned to a Colorado prison in 2006, she still fails to
allege facts that demonstrate she pursued her claims diligently. Ms. Goree does not
specify when in 2006 she was returned to a prison in Colorado, but the record is clear
that she did not file any postconviction motions in the trial court until she filed her Rule
35(c) motion on December 13, 2007. (See ECF No. 12-1 at 15.) Ms. Goree’s failure to
pursue her claims in 2006 and almost all of 2007 does not demonstrate diligent pursuit
of those claims. Waiting more than nine months to file the instant action after the state
court Rule 35(c) proceeding concluded in June 2014 also demonstrates a lack of
diligence. Although the Rule 35(c) motion was timely, in part, as a matter of state law,
that fact does not alter the Court’s analysis. See Ferguson v. Palmateer, 321 F.3d 820,
823 (9th Cir. 2003) (§ 2244(d) does not permit restarting a filing period that expired
before a timely state petition was filed).
Finally, the Court construes Ms. Goree’s statement that she has “continued to
plead [her] innocence throughout this case” (ECF No. 16 at 1) as an actual innocence
argument. A credible showing of actual innocence provides a gateway to consideration
of an otherwise untimely claim of constitutional error as an equitable exception to the
one-year limitation period in § 2244(d). McQuiggin v. Perkins, 133 S. Ct. 1924, 1928
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(2013). However, “tenable actual-innocence gateway pleas are rare.” Id. To be
credible, a claim of actual innocence requires a petitioner “to support h[er] 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 v. Delo, 513 U.S. 298, 324 (1995); see McQuiggin, 133 S.
Ct. at 1936 (applying actual innocence test in Schlup to one-year limitation period in §
2244(d)). The petitioner then must demonstrate “that it is more likely than not that no
reasonable juror would have convicted h[er] in the light of the new evidence.” Schlup,
513 U.S. at 327; see also McQuiggin, 133 S. Ct. at 1924. Although the actual
innocence test does not require a showing of diligence, untimeliness “bear[s] on the
credibility of evidence proffered to show actual innocence.” McQuiggin, 133 S. Ct. at
1935. Thus, “a federal habeas court, faced with an actual-innocence gateway claim,
should count unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier
to relief, but as a factor in determining whether actual innocence has been reliably
shown.” Id. at 1928.
Ms. Goree’s vague and conclusory assertion that she has continued to plead
innocence throughout this case falls far short of the showing necessary to support a
credible claim of actual innocence under Schlup. Therefore, the Court finds no basis for
an equitable exception to the one-year limitation period based on actual innocence.
In conclusion, the application is barred by the one-year limitation period in §
2244(d) and will be dismissed for that reason. 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 appeal. See
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Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal
she 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 for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1) is dismissed as 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. It is
FURTHER ORDERED that Applicant’s motion for appointment of counsel (ECF
No. 15) is denied.
DATED at Denver, Colorado, this 19th day of

June

, 2015.

BY THE COURT:

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

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