Simpson v. Lind et al

Filing 18

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 11/19/15. No certificate of appealability shall issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00936-GPG

NORMAN SIMPSON,
Applicant,
v.
RANDY LIND, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL
I. Background
Applicant Norm Simpson is in the custody of the Colorado Department of
Corrections (DOC) and currently is incarcerated at the Arkansas Valley Correctional
Facility in Ordway, 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. 2000CR230. In an order entered on May 2, 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. 10, on June 15, 2015.
After three requests for extensions of time to file a reply, and the extensions being
granted, Applicant filed a Reply, ECF No. 17, on October 27, 2015.

Applicant raises four claims in the Application as follows:
(1) The jury instruction for first and second degree attempted
murder violated his constitutional right to due process of law
under the Fourteenth and Fifth Amendments;
(2) The jury instruction for first degree burglary violated his
constitutional right to due process of law under the Fourteenth
and Fifth Amendments;
(3) Denial of ineffective assistance of counsel as stated in
the postconviction motion and supplements in state court; and
(4) Denial of right to confrontation based on the trial court
admitting a videotape by a prosecution witness in violation of
the Sixth Amendment.
Application, ECF No. 1, at 5-6 and 10.
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
Aassume 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 22, 2000, of second degree
attempted murder, first degree burglary, trespassing, and menacing in Case No.
2000CR230 in the El Paso County District Court, ECF No. 10-1 at 4-5, and was
sentenced on January 8, 2001, to sixteen years of incarceration in the DOC, id. at 3.
Applicant appealed the conviction and sentence, which was affirmed on appeal. See
People v. Simpson, 93 P.3d 551, No. 01CA0322 (Colo. App. Nov. 6, 2003). Applicant=s
petition for certiorari review to the Colorado Supreme Court (CSC) was denied on June
28, 2004. See ECF No. 10-8, Ex. H.
Regarding Applicant=s initial postconviction motion filed in the state district court on
June 30, 2004, ECF No. 10-1, Ex. A, at 20, the Colorado Court of Appeals, in Applicant=s

appeal of the June 30 postconviction motion, described the state court proceedings as
follows:
Simpson appealed. A division of this court affirmed his convictions
and sentence in People v. Simpson, 93 P.3d 551 (Colo. App. 2003).
Following his appeal, in June 2004, Simpson filed his initial Crim. P.
35(c) motion for postconviction relief. Effective July 1, 2004, the Colorado
Supreme Court amended Crim. P. 35 to expressly preclude review of
certain types of claims under subsections (c)(3)(VI) and (c)(3)(VII).
Thereafter, in July 2004, November 2004, July 2006, November 2006, and
February 2007, Simpson filed motions to supplement his postconviction
petition.
The trial court held hearings on Simpson=s various claims in
February and June 2007. It heard testimony from Simpson=s trial and
appellate counsel. Ultimately, it denied Simpson=s motion on all grounds
....
People of the State of Colorado, No. 07CA1551, 1-2 (Colo. App. May 31, 2012) (opinion
modified and petition for rehearing denied November 8, 2012); ECF No. 10-10, Ex. J, at
9-10. On May 31, 2012, the Colorado Court of Appeals affirmed the trial court=s order
denying Applicant=s initial Colo. R. Crim. P. 35(c) postconviction motion on November 8,
2012. ECF No. 10-10 at 35. The Colorado Supreme Court dismissed Applicant=s
certiorari proceeding on September 26, 2013, because he failed to file a petition for writ of
certiorari. ECF No. 10-11, Ex. K.
On December 27, 2013, Applicant filed another motion for postconviction relief.
ECF No. 10-1, Ex. A, at 9. The postconviction court denied the motion on January 30,
2014, but applicant did not appeal. Id. at 8-9.
In his Reply, Applicant concedes that in part Respondents= time calculations are
accurate, but he argues the calculations are fatally flawed in part because of the
following.

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Although Colorado law allows the state court to accept
postconviction motions anytime, it could not adjudicate the merits of the
motion until the Court of Appeals issued its mandate for the appeal in case
number 2007CA1551. The relevant procedural facts are:
The appeal was filed on 8/12/2007.
The state court issued its order denying the December 27,
2013 postconviction motion on 1/30/2014.
The Court of Appeals mandate was mot [sic] issued until July
25, 2014.
Thus, between 8/13/2007 and 7/25/2014 the state court
lacked authority to issue any further orders in the case.
Reply, ECF No. 17, at 8-9.
Applicant=s argument is incorrect. Tolling is not extended for a postconviction
motion to the date the mandate is issued. See Serrano v. Williams, 383 F.3d 1181, 1185
(10th Cir. 2004). The authority of the CCA to recall, withdraw or stay, a mandate per
Colo. App. R. 41.1, which appears to be the basis for Applicant=s claim, see ECF No.
10-1, at 9, expires when the CSC denies a defendant=s writ of certiorari. See People v.
Bonilla-Garcia, 51 P.3d 1035, 1037 (Colo. App. Oct. 11, 2001). The petition for certiorari
review in Case No. 2007CA1551 was denied on September 26, 2013. ECF No. 10-11,
Ex. K.
Furthermore, Applicant concedes that the second postconviction motion was
properly filed on December 27, 2013. ECF No. 17 at 9. Applicant cannot argue both
that a postconviction motion is properly filed but the district court could not rule on the
properly filed postconviction motion.
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:
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(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 ofB
(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 28, 2004, in his direct appeal. See
Sup. Ct. R. 13.1. Applicant did not petition the United States Supreme Court for
certiorari review. Therefore, Applicant=s conviction became final September 27, 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

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1153, 1155 (10th Cir. 1999); see also Sup. Ct. R. 30 (if last day of period is a Saturday the
period is extended until the end of the next day that is not a Saturday or Sunday or federal
legal holiday; the ninetieth day, September 26, 2004, was on a Sunday). Accordingly, for
purposes of ' 2244(d), time began to run on September 28, 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.
As stated above, Applicant filed his first postconviction motion on June 30, 2004,
two days after the CSC denied his petition for certiorari review in his direct appeal. This
motion was pending in state court until September 26, 2013, when the CSC denied
Applicant=s petition for certiorari review in the postconviction motion. Applicant then filed
a second postconviction motion on December 27, 2013. See ECF No. 10-1 at 9. The
time from September 27, 2013, the day after Applicant=s first postconviction motion was
final, until December 26, 2013, the day prior to when the second postconviction motion
was filed, 91 days, is not tolled for the purpose of ' 2244(d).
Also as stated above, the state district court denied the second postconviction
motion on January 30, 2014, and Applicant did not appeal. Applicant had forty-nine days
to appeal the district court=s denial and tolling expired once the forty-nine days had run.
See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (citing Rhine v. Boone, 182
F.3d 1153, 1155 (10th Cir. 1999); Colo. App. R. 4(b) (Pursuant to the rule in effect at the
time Applicant was sentenced, he had forty-nine days to file a notice of appeal after the
postconviction court denied the second motion.) The second postconviction, therefore,
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was final on March 20, 2014. No other postconviction motions either are entered on the
state court register, ECF No. 10-1, or identified by Applicant in the Application or Reply or
by Respondents in the Pre-Answer Response.
Applicant signed and dated the Application in this case on April 29, 2015. For
purposes of this action, the mailbox rule states that an inmate who places a habeas
petition Ain 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)).
AHowever, 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. CeballosBMartinez, 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 CeballosBMartinez, 387 F.3d at 1144B45). Applicant has not complied with
either of the requirements in Price. The Application, therefore, was filed on May 1, 2015,
the date the Court received and filed the Application.
Therefore, the day after the second postconviction motion became final, March 21,
2014, until April 30, 2015, the day prior to when Applicant filed this action, 406 days, is not
tolled for the purpose of ' 2244(d). Overall, 497 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.
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' 2244(d)(1)(C). Applicant also does not assert that he could not have discovered the
factual predicate of his claims through the exercise of due diligence. ' 2244(d)(1)D).
Applicant further does not 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). Accordingly, the Application is time-barred unless it is subject to
equitable tolling.
A[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[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) (A >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 asserts in the Reply that the time period under 28 U.S.C. ' 2244(d) is not
jurisdictional and may be tolled for equitable reasons. ECF No. 17 at 2. He further
states that equitable tolling may be appropriate if (1) an inmate is actually innocent; (2) an
Aadversary=s conduct or other uncontrollable circumstances prevents the inmate from
timely filing@; or (3) an Ainmate actively pursues judicial remedies but files a defective
pleading within the statutory period.@ Id. at 3.

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Applicant fails to meet the burden of demonstrating that equitable tolling is
appropriate. See Miller, 141 F.3d at 978.
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, C U.S. C ,133 S. Ct. 1924 (2013).
However, Atenable actual-innocence gateway pleas are rare.@ Id. at *1928. To be
credible, a claim of actual innocence requires an applicant Ato 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 one-year limitation period in
' 2244(d)).
The applicant then must demonstrate Athat 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 asserts that he declares under penalty of perjury that he is not guilty of
attempted murder or burglary. His claim is not based on new reliable evidence under the
Schlup standard; and nothing in Schlup 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.

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Applicant also does not assert any basis for this Court to find he was prevented
from filing this action due to uncontrollable circumstances or that he filed a defective
pleading within the statutory period.

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 v. Falk, 509 F. App=x 756, 760 (10th Cir.
2013).
Based on the above findings, 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).
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

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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.
DATED at Denver, Colorado, this

19th

day of

November

BY THE COURT:

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

11

, 2015.