Lee v. Archuleta et al
Filing
19
ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/2/15. No certificate of appealability shall issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00700-GPG
JOHNNY LEE,
Applicant,
v.
LOU ARCHULETA, Warden, F.C.F., and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER OF DISMISSAL
I. Background
Applicant Johnny Lee is in the custody of the Colorado Department of
Corrections (DOC) and currently is incarcerated at the Fremont Correctional Facility in
Cañon City, Colorado. Applicant has filed an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 that challenges his conviction and sentence in State of
Colorado Criminal Case No. 01CR745. In an order entered on April 21, 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 filed a Pre-Answer Response, ECF No. 14, on May 22, 2015.
Applicant filed a Reply, ECF No. 16, on June 16, 2015. The Court then requested the
State Court Flat File on July 11, 2015, ECF No. 17, which was provided on July 23,
2015, ECF No. 18, to assist in completing an initial review.
Applicant raises ten claims in the Application as follows:
(1) Use of uncharged misconduct evidence against
Applicant to refute duress defense in violation of Fourteenth
Amendment right to fair trial;
(2) Use of jailhouse informant statements that Applicant had
access to dynamite, grenades, and guns, which were not
verified and in violation of Fourteenth Amendment right to
fair trial;
(3) Introduction of gang evidence in violation of Fourteenth
Amendment right to due process and fair trial;
(4) Failure to instruct on the theory of an endorsed defense
of duress in violation of Fourteenth Amendment right to due
process and fair trial;
(5) No questioning during voir dire regarding bias to gang
involvement because prosecution withdrew motion to
introduce, but when door opened at trial to introduce gang
involvement the result was a violation of Sixth and
Fourteenth Amendment right to impartial jury;
(6) Introduction by a witness of a prior conviction and
probation during the charged offenses in violation of
Fourteenth Amendment right to due process and fair trial;
(7) Consideration of improper factors during sentencing that
resulted in the aggravated sentencing range in violation of
Fourteenth Amendment right to due process;
(8) Ineffective assistance of counsel based on:
(i) Failure to have interpreter during crossexamination;
(ii) Failure to inquire regarding potential jurors
bias towards gang members (Martinez issue);
(iii) Opened Door for gang member evidence
(Martinez);
(iv) Failure to object to improper complicity
instruction (Martinez);
(v) Failure to adopt the duress defense “in toto”
by conducting sufficient investigations and
2
present an expert (Martinez);
(vi) Failure to challenge aggravated sentences
pursuant to Apprendi and Blakely (Martinez);
(9) Appellate counsel failed to raise discovery violation
(Martinez); and
(10) Sentence is unconstitutional pursuant to Graham v.
Florida, 130 S. Ct. 2011 (2010).
II. Analysis
The Court must construe liberally the Application and Reply 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 found guilty by a jury trial on August 29, 2001, of sexual assault as
a complicitor and as a principal in Case No. 2001CR745 in the El Paso County District
Court, Pre-Answer Resp., ECF No. 14-1, App. A at 5-8 and ECF No. 14-16, App. O at
4. Applicant filed a motion for new trial on September 13, 2001, which was denied by
the trial court on September 14, 2001. See ECF No. 14-1 at 24 and ECF No. 14-20,
App. Q. Applicant then was sentenced on November 28, 2001, to three thirty-six year
terms for the sexual assault and kidnapping, to run consecutively, and to one sixteen
year term for the conspiracy, to run concurrently, ECF Nos. 14-1 at 22 and 14-16 at 4.
Applicant appealed his convictions, the Colorado Court of Appeals (CCA)
affirmed the conviction and sentence, ECF No. 14-16, and the Colorado Supreme Court
(CSC) denied Applicant’s petition for certiorari review on June 14, 2004, ECF No. 14-14,
App. M.
3
Applicant then filed a Colo. R. Crim. P. 35(c) postconviction motion at the earliest
on June 16, 2005, when he signed and dated the motion. ECF No. 14-1 at 20 and Flat
File, ECF No. 18, Vol. No. 4 at 1030. The Rule 35(c) motion was denied on November
29, 2010. Id. at 15, the CCA affirmed the denial on September 26, 2013, ECF No. 1410, and certiorari review was denied on June 16, 2014, ECF No. 14-8.
The Court notes that Applicant filed a motion for production of all court records
on July 8, 2014, and subsequently an attempt to apparently appeal the trial court’s
denial of the motion. See ECF No. 14-1 at 11-12. 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. 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).
The 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). A motion for relief
pursuant to Rule 35 tolls the statute of limitations if the state court treats the motion as a
motion for postconviction relief, Habteselassie, 209 F.3d at 1213, and if the motion
requests appointment of new counsel, seeks postconviction relief, and states adequate
grounds for relief, see Pursley v. Estep, et al., 216 F. App’x 733, 734 (10th Cir. 2007).
Since Respondents have provided the registry for the state criminal case at issue
in this action, Case No. 2001CR745, and nothing on the register of actions, ECF No.
4
14-1at 7-8, or in Applicant’s pleadings, ECF Nos. 1 and 16, indicates that this was a
properly postconviction or collateral proceeding before the trial court, or treated as one
by the court, no time from June 17, 2014, the day after the Rule 35(c) postconviction
motion was final, through the date Applicant filed this action, is tolled pursuant to
§ 2244(d).
Applicant signed and dated the Application in this case on March 27, 2015. For
purposes of this action, the mailbox rule states that an inmate who places a habeas
petition “in the prison’s internal mail system will be treated as having ‘filed’ [the petition]
on the date it is given to prison authorities for mailing to the court.” Price v. Philpot, 420
F.3d 1158, 1165 (10th Cir.2005) (citing Houston v. Lack, 487 U.S. 266, 276 (1988)).
“However, the inmate must attest that such a timely filing was made and has the burden
of proof on this issue.” Id. (citing United States v. Ceballos–Martinez, 387 F.3d 1140,
1143 (10th Cir.2004)). In order to establish a timely filing, an inmate must either (1)
prove that he made timely use of the prison’s legal mail system if a satisfactory system
is available; or (2) if a legal mail system is not available, prove timely use of the prison’s
regular mail system by submitting a notarized statement or a declaration under penalty
of perjury indicating the date on which the document was given to prison officials for
mailing. Id. (citing Ceballos–Martinez, 387 F.3d at 1144–45). Applicant has not
complied with either of the requirements in Price. The Court, therefore, finds the
Application was filed on April 3, 2015, the date the Court received and filed the
Application.
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. 14 at 7-11. Section 2244(d)
provides as follows:
5
(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.
(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 had ninety days to petition the United States Supreme Court after the
CSC denied his petition for certiorari review on June 14, 2004. See Sup. Ct. R. 13.1.
Therefore, Applicant’s conviction became final September 13, 2004, when the time for
seeking review in the United States Supreme Court expired. See Locke v. Saffle, 237
F.3d 1269, 1273 (10th Cir. 2001) (citing Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.
1999); see also Sup. Ct. R. 30 (if last day of period is a Saturday the period is extended
6
until the end of the next day that is not a Saturday or Sunday or federal legal holiday;
the ninetieth day, September 12, 2004, was on a Sunday). Accordingly, for purposes of
§ 2244(d), time began to run on September 14, 2004, 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 time from September 14, 2004, the day after Applicant’s conviction and
sentence became final, until June 15, 2005, the day prior to when he signed and dated
the Rule 35(c) postconviction motion, 275 days, is not tolled for the purpose of
§ 2244(d). Also, the time from June 17, 2014, the day after the Rule 35(c) motion
became final, until April 2, 2015, the day prior to when Applicant filed this action, 289
days, is not tolled for the purpose of § 2244(d). Overall, 564 days are not tolled for the
purpose of § 2244(d). The action, therefore, is time barred.
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 his claims.
§ 2244(d)(1)(C). Applicant also does not assert that he could not have discovered the
factual predicate of his claim through the exercise of due diligence. § 2244(d)(1)D).
Applicant, however, does assert that the state created an impediment to filing an
application in violation of the Constitution or laws of the United States under
§ 2244(d)(1)(B).
Applicant contends that while he “was still within the time limitation set by
§ 2244(d),” his legal papers were seized by DOC investigators and held for a significant
7
period of time, due to the transfer of Mr. Vreeland, who was assisting Applicant and had
his legal papers, to another facility after he told DOC staff that Applicant was attempting
to have the victim in his criminal case murdered. ECF No. 16 at 13-14. Applicant
further asserts that during the six to seven months his papers were held his mail and
phone calls were monitored. Id. at 14.
Because Applicant fails to assert why the legal papers held by DOC staff were
necessary to pursue his federal claims, he fails to assert that an unconstitutional state
action impeded him from filing a timely habeas petition or a petition for state
postconviction relief. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir.2006)
(rejecting a habeas petitioner's § 2244(d)(1)(B) argument because the petitioner “failed
to explain why the documents held by the State were necessary to pursue his federal
claim). Applicant further fails to assert specifically what he did during the alleged six to
seven months that he was denied access to his legal papers to pursue his claims and to
seek return of the papers. Applicant’s only claim is a conclusory statement that he
“repeatedly requested the return of his documents and was repeatedly told that he
would only receive said when the investigation was complete.” ECF No. 16 at 14.
Applicant, therefore, fails to meet the burden he has to state the specific steps he took
to diligently pursue his claims during this time. See Miller v. Marr, 141 F.3d 976, 978
(10th Cir.1998) (placing the burden on the petitioner to “provide[ ] . . . specificity
regarding the alleged lack of access [to legal materials] and the steps he took to
diligently pursue his federal claims”). Applicant, therefore, has failed to demonstrate an
impediment under § 2244(d)(1)(B). Accordingly, the Application is time-barred unless it
is subject to equitable tolling.
8
“[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 he shows (1) that he 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)). The inmate must allege
with specificity the steps he took to pursue his federal claims. Yang, 525 F.3d at 930.
Finally, the inmate bears the burden of demonstrating that equitable tolling is
appropriate. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
Applicant contends that the one-year time limitation should be equitably tolled
because (1) he was denied access to his legal materials and once the papers were
returned to him he acted with due diligence and “filed shortly after the return of the
seized items,” ECF No. 16 at 14; (2) he was entitled to file a motion for reconsideration
of his sentence and to effective assistance of counsel in pursuing this motion, gave
specific instructions to his direct appeal attorney to file the motion, and his attorney had
told him that he had done so, id. at 15; and (3) he is actually innocent, and now can
provide testimony from a prosecution eye witness that the witness lied to obtain a deal
and would now testify that Applicant did not participate in the attack, id. at 20.
For the reasons stated above, in denying tolling under § 2244(d)(1)(B), the Court
will deny equitable tolling based on the denial of Applicant’s legal papers. Applicant fails
to meet the burden of demonstrating that equitable tolling is appropriate, see Miller, 141
F.3d at 978, not only because he fails to assert why he needed the papers to proceed
9
with any postconviction proceeding or federal habeas action, but also because he fails
to state the specific dates his legal papers were withheld and the dates that he
requested the papers and his requests were denied.
As for appellate counsel’s failure to file a motion for reconsideration of Applicant’s
sentence, Applicant clearly states that he was aware that the motion must be filed, that
he specifically directed appellate counsel to do so and even provided him with the
requisite information, and that counsel told him he had filed the motion. ECF No. 16 at
15. Yet, Applicant fails to state the date he directed counsel to file the motion and when
and how many times he inquired of counsel about the status of the motion. Applicant
further does not state or provide any documentation of an attempt to inquire with the
trial court, once appellate counsel allegedly would not respond to him, and was denied
information about the status of any reconsideration motion that had been filed in the trial
court.
Finally, it was not reasonable that Applicant waited a year before attempting to
proceed with another postconviction motion and even more unreasonable that when he
filed the Rule 35(c) motion he did not attempt to file an out-of-time Rule 35(b) motion
based on appellate counsel’s alleged “egregious misconduct.” Applicant, therefore, has
not met the burden required to demonstrate equitable tolling based on counsel’s
actions.
Finally, 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, — U.S.
— ,133 S. Ct. 1924 (2013). However, “tenable actual-innocence gateway pleas are
rare.” Id. at *1928. To be credible, a claim of actual innocence requires an applicant “to
10
support his 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 oneyear limitation period in § 2244(d)).
The applicant then must demonstrate “that it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence.” Schlup,
513 U.S. at 327; see also McQuiggin, 133 S. Ct. at *1936.
Applicant’s innocence claim is speculative at best that one of the prosecution’s
eyewitness would testify that Applicant did not commit the offense for which he was
convicted. His claim is not based on new reliable evidence under the Schulp standard;
and nothing in Schulp suggests that Applicant is entitled to perform evidence gathering
as part of a habeas action to obtain new reliable evidence so that he may proceed
based on actual innocence. Applicant’s argument falls far short of the showing that is
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. Applicant, therefore, has not met his burden to demonstrate
extraordinary circumstances and due diligence that would support a finding of equitable
tolling under Holland. See Mack, 509 F. App’x at 760.
The Court 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).
11
III. Conclusion
Because the action clearly is time-barred, the Court will refrain from addressing
whether the claims are exhausted.
The Court further 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 he 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
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 all pending motions are denied as moot.
DATED at Denver, Colorado, this
2nd
day of
September
, 2015.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?