Cortez v. Kline et al
ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/8/15. No certificate of appealability shall issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01267-GPG
RICHARD R. CORTEZ,
K. KLINE, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER OF DISMISSAL
Applicant, Richard R. Cortez, is a prisoner in the custody of the Colorado
Department of Corrections (CDOC) at the Kit Carson Correctional Center in Burlington,
Colorado. He has filed a [Second] Amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. ' 2254 (ECF No. 6). Mr. Cortez challenges the validity of his
convictions and sentence imposed in the District Court of Arapahoe County, Colorado.
He has paid the $5.00 filing fee.
On August 25, 2015, Magistrate Judge Gordon P. Gallagher directed
Respondents to file a pre-answer response 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). Respondents submitted a Pre-Answer Response on September
8, 2015. (ECF No. 10). Applicant did not file a Reply by the court-ordered deadline.
The Court construes Applicant=s filings 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 act as an advocate for
pro se litigants. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will
dismiss this action as untimely.
I. Background and State Court Proceedings
In October 2002, Mr. Cortez was convicted of kidnapping, first degree burglary,
attempted aggravated robbery and menacing, in Arapahoe County District Court Case
No. 01CR2418, and was sentenced to a prison term of 64 years. (ECF No. 6 at 2). On
direct appeal, the Colorado Court of Appeals affirmed Applicant=s convictions in People v.
Cortez, 04CA2550 (Colo. App. Nov. 1, 2007) (unpublished), but vacated the sentences
imposed for kidnapping and attempted aggravated robbery, as well as the consecutive
aspect of the burglary sentence, and remanded the case for resentencing. (ECF No.
10-3 at 2).
On remand, the trial court resentenced Mr. Cortez to an aggregate 64-month
sentence. (ECF No. 10-1 at 18). The Colorado Court of Appeals affirmed in People v.
Cortez, 09CA0267 (Colo. App. July 8, 2010) (unpublished). (ECF No. 10-3).
Applicant=s petition for certiorari review was denied by the Colorado Supreme Court on
November 8, 2010. (ECF No. 10-12).
Mr. Cortez filed a motion for post-conviction relief in the state district court,
pursuant to Colo. Crim. P. Rule 35(c), on June 6, 2011. (ECF No. 10-2 at 13). On
September 26, 2011, the district court denied the motion as barred by the three-year state
statute of limitations applicable to post-conviction attacks. (ECF No. 10-17). Applicant
did not file a timely appeal of that order. (ECF No. 10-4 at 3).
Mr. Cortez filed a second Rule 35(c) motion on December 9, 2011, that was denied
summarily by the district court on January 31, 2012. (ECF No. 10-2 at 12-13).
The Colorado Court of Appeals affirmed in People v. Cortez, 12CA0400 (Colo. App. April
11, 2013) (unpublished), concluding that Applicant=s claims either were, or could have
been, presented on direct appeal or in his first Rule 35(c) motion. (ECF No. 10-4 at 3).
Mr. Cortez filed a petition for certiorari review in the Colorado Supreme Court, which was
denied on June 16, 2014. (ECF No. 10-16).
Mr. Cortez initiated this action on June 15, 2015. He filed an Amended
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2254 on July 13, 2015,
followed by a [Second] Amended Application on August 3, 2015. He raises three claims
in the [Second] Amended Application.
Respondents argue in the Pre-Answer Response that this ' 2254 proceeding is
barred by the one-year limitation period in 28 U.S.C. ' 2244(d). (ECF No. 10 at 4-9).
Respondents further contend that two of Mr. Cortez=s claims are procedurally barred.
(Id. at 9-14).
II. AEDPA Time Bar
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) 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 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).
Timeliness of Application
Mr. Cortez=s state criminal judgment became final on Monday, February 6, 2011, 1
when the 90-day period to seek review in the United States Supreme Court expired,
following the Colorado Supreme Court=s November 8, 2010 order denying certiorari
review. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). The one-year period
therefore commenced on February 6, 2011. See Holland v. Florida, 560 U.S. 631, 635
The Court must next determine whether Mr. Cortez filed any state post-conviction
motions that 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. An application for post-conviction review is properly filed with the
Because the 90th day was Sunday, February 5, 2011, Mr. Cortez had until Monday, February 5,
2011, to file his petition in the United States Supreme Court. See S. Ct. Rule 30.1.
meaning of ' 2244(d)(2) Awhen 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).
The issue of whether a post-conviction motion is pending is a matter of federal law.
See Gibson v. Klinger, 232 F.3d 799, 806 (10th Cir. 2000). The term Apending@ includes
Aall 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).
Mr. Cortez filed his first state post-conviction motion on June 6, 2011. The state
district court denied the motion as time-barred under COLO.REV.STAT. ' 16-5-402(1)
(2015). (ECF No. 10-17). A state post conviction motion that is dismissed by the state
court as filed outside of the state=s statutory limitations period is not properly filed. See
Pace v. DiGuglielmo, 544 U.S. at 408, 417 (2005) (holding that Atime limits, no matter their
form, are >filing conditions=@; and, therefore, because the state court rejected the
petitioner=s state post conviction motion as untimely, it was not Aproperly filed@ and
petitioner was not entitled to statutory tolling under ' 2244(d)(2)@). As such, the one-year
period was not tolled by the filing of the June 6, 2011 Rule 35(c) motion.
Applicant filed his second Rule 35(c) motion on December 9, 2011. At that time,
306 days had elapsed on the AEDPA time clock. Although the second Rule 35(c) motion
could have been denied as untimely, there is no indication in the limited record before the
court as to the basis of the state district court=s order. The Court will not make
assumptions, but instead finds that the filing of Applicant=s second Rule 35(c) motion
possibly tolled the one-year period, even if it was successive. See Artuz, 531 U.S. at
10-11 (concluding that state procedural bars Aprescrib[ing] a rule of decision for a court@
confronted with certain claims previously adjudicated or not properly presented are not
Afiling@ conditions for purposes of ' 2244(d)(2)).
However, regardless of whether the second Rule 35(c) motion tolled the limitation
period from December 9, 2011 to June 16, 2014, when Applicant=s petition for certiorari
review was denied by the Colorado Supreme Court, the Application is untimely. The
AEDPA one-year period expired in 2014, long before Mr. Cortez initiated this ' 2254
proceeding on June 3, 2015. Therefore, the Application is time-barred, unless equitable
The one-year limitation period in 28 U.S.C. ' 2244(d) is not jurisdictional and may
be tolled for equitable reasons Ain rare and exceptional circumstances.@ Gibson, 232 F.3d
at 808 (internal quotation marks omitted); see also Miller v. Marr, 141 F.3d 976, 978 (10th
Cir. 1998). Equitable tolling may be appropriate if (1) the petitioner is actually innocent;
(2) an adversary=s conduct or other extraordinary circumstance prevents the petitioner
from timely filing; or (3) the petitioner actively pursues judicial remedies but files a
defective pleading within the statutory period. See Holland, 560 U.S. at 649; Gibson,
232 F.3d at 808. Simple excusable neglect is not sufficient to support equitable tolling.
Gibson, 232 F.3d at 808. Furthermore, equitable tolling is appropriate only if the
petitioner pursues his claims diligently. Miller, 141 F.3d at 978. The petitioner must
Aallege 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)).
Mr. Cortez does not allege any facts in the [Second] Amended ' 2254 Application
to meet his burden of demonstrating that equitable tolling is appropriate in this action.
The Court finds that the claims raised in the [Second] Amended ' 2254
Application are time-barred. The Court need not address Respondent=s additional
argument that two of Applicant=s claims are procedurally barred.
For the reasons discussed above, it is
ORDERED that the [Second] Amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. ' 2254 (ECF No. 6), filed pro se by Richard R. Cortez, is DENIED
because this action is barred by the one-year limitation period in 28 U.S.C.
FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that no certificate of appealability shall issue because Mr.
Cortez has not made a substantial showing that jurists of reason would find it debatable
whether the jurisdictional and procedural rulings are correct and whether the underlying
claims have constitutional merit. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. 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 Mr. Cortez files a notice of appeal he must also pay the full $455 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.
DATED October 8, 2015, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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