Steinhour v. State of Colorado et al

Filing 13

ORDER OF DISMISSAL. ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1 ) is denied and this action is dismissed with prejudice. No certificate of appealability will issue. IFP on appeal is denied, by Judge Lewis T. Babcock on 2/5/2016. (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01884-GPG
ARCHIE R. STEINHOUR,
Applicant,
v.
STATE OF COLORADO,
CYNTHIA HOFFMAN, The Attorney General of the State of Colorado, and
MICHAEL MILLER,
Respondents.

ORDER OF DISMISSAL

Applicant Archie R. Steinhour is a prisoner in the custody of the Colorado
Department of Corrections (“CDOC”) currently incarcerated at the Crowley County
Correctional Facility. Mr. Steinhour filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. ' 2254 (ECF No. 1) challenging his conviction and
sentence in Denver County District Court Case No. 99CR0265. He has paid the $5.00
filing fee.
In orders (ECF Nos. 5 and 6) entered on October 6, 2015 and November 13,
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. 9) on December 8, 2015. On
December 28, 2015, Applicant filed a Reply (ECF No. 11).
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The Court must construe liberally Applicant’s pleadings 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 does not Aassume
the role of advocate for the pro se litigant.@ See Hall, 935 F.2d at 1110. For the
reasons explained below, the Court will dismiss this action as time-barred by the oneyear limitation period, 28 U.S.C. § 2244(d)(1), in the Anti-Terrorism and Effective Death
Penalty Act (AEDPA).
I.

Background
On December 6, 1999, Applicant pleaded guilty to two counts of sexual

exploitation of a child in Case No. 99CR0265 in the Denver County District Court, and
was sentenced to two consecutive 15-year terms of incarceration in the CDOC. (ECF
No. 9-1, at 12). The sentence in Case No. 99CR0265 also was ordered to run
concurrent with the sentence in Case No. 98cr3582 in the Jefferson County District
Court. (Id.). Applicant did not appeal.
On June 28, 2001, Applicant filed a postconviction motion pursuant to Colo.
Crim. P. Rule 35 alleging that his sentence was illegally aggravated in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000). (See ECF No. 9-1, at 11; ECF No. 9-18,
at 2). Applicant also alleged that the CDOC was improperly deducting restitution from
his inmate account. (Id.). The state court denied both claims and Applicant appealed.
(Id.). The Colorado Court of Appeals affirmed the denial of the Apprendi claim, but
vacated the denial of the restitution claim because the trial court lacked jurisdiction over
that claim. (See ECF No. 9-15, People v. Steinhour, No. 01CA2426 (Colo. App. May 1,
2003) (“Steinhour I”). The Colorado Supreme Court denied Applicant=s petition for writ
of certiorari on December 22, 2003. (ECF No. 9-13).
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On January 5, 2005, Applicant filed a second motion for postconviction relief
pursuant to Colo. Crim. P. Rule 35 alleging that his sentence violates both Apprendi v.
New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004).
(See ECF No. 9-1, at 9; ECF No. 9-12, at 2). The state court denied the motion on
January 30, 2006, and Applicant appealed. (Id.). On September 13, 2007, the
Colorado Court of Appeals affirmed the denial. (ECF No. 9-10, People v. Steinhour,
06CA0535 (Colo. App. Sept. 13, 2007) (“Steinhour II”). Applicant was granted an
extension of time to file a petition for writ of certiorari, but the Colorado Supreme Court
dismissed the certiorari proceeding on November 17, 2008, after Applicant moved to
“withdraw” the certiorari proceeding. (See ECF No. 9-9, at 2-4; ECF No. 9-8, at 2).
On May 10, 2012, Applicant filed a third motion for postconviction relief pursuant
to Colo. Crim. P. Rule 35. (ECF No. 9-1, at 8). The state court denied the motion on
October 16, 2012. (Id.; ECF No. 9-7). Applicant requested reconsideration, and the
state court granted relief on new claims that were added during the process, but denied
reconsideration of the claims under Rule 35. (ECF No. 9-1, at 7; ECF No. 9-6). The
Colorado Court of Appeals affirmed the decision on appeal. (ECF No. 9-4, People v.
Steinhour, 13CA0651 (Colo. App. Oct. 23, 2014) (“Steinhour III”). Applicant’s petition
for certiorari review was denied by the Colorado Supreme Court on June 22, 2015.
(ECF No. 9-2, at 2).
Applicant filed his federal habeas corpus application on August 28, 2015.
Applicant’s sole claim is as follows: “[t]he Colorado State Courts erred when they denied
the Petitioner’s Issue #1 where he should be permitted to withdraw his guilty plea
because he pleaded to an illegal sentence.” (ECF No. 1, at 4).
II.

The AEDPA Time Bar
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Respondents first assert in the Pre-Answer Response that this action is untimely
under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). The Court
agrees.
Section 2244(d) 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 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).
In order to apply the one-year limitation period, the Court first must determine the
date on which Applicant’s conviction became final. See U.S.C. § 2244(d)(1)(A). As
noted above, Applicant pleaded guilty and was sentenced to thirty years imprisonment
in Denver County District Court Case No. 99CR0265 on December 6, 1999. Because
Applicant did not appeal, his conviction became final when the time to file a direct

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appeal expired. Pursuant to the version of Rule 4(b) of the Colorado Appellate Rules
applicable when he was sentenced to prison, Applicant had forty-five days to file a
notice of appeal. Thus, Applicant’s judgment of conviction became final when the fortyfive day period expired on January 20, 2000.
Applicant does not allege or argue that he was prevented by unconstitutional
state action from filing this action sooner, he is not asserting any constitutional rights
newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review, and he knew or could have discovered the factual predicate for his
claim before his conviction became final. See 28 U.S.C. § 2244(d)(1)(B) - (D).
Applicant does assert that “in accordance with the Colorado Statute Crim. P. 35(a) rules
in effect at date of sentencing of December 6, 1999, a Colorado Crim. P. 35(a) can be
corrected ‘at any time.’ There is not time bar.” (ECF No. 11, at 1). Applicant further
alleges “that there is no time bar to enforce the terms of a plea agreement” under
Colorado law. (Id., at 2). Finally, Applicant argues that his claim challenging an illegal
sentence is not subject to the time bar under § 2244(d)(1). (Id.).
These arguments are unavailing. Although Colorado law does provide that a
motion to correct an illegal sentence may be filed in state court at any time, see Colo.
Crim. P. Rule 35(a), that state law is separate from and does not alter the limitation
period under § 2244(d)(1) of the AEDPA for bringing a federal habeas corpus
application in federal court. As a result, the Court finds that the one-year limitation
period began to run on January 21, 2000, the day after Applicant’s conviction became
final. See United States v. Hurst, 322 F.3d 1256, 1261-62 (10th Cir. 2003) (one-year
limitation period commences the day after expiration of the time for seeking review).
The Court next must determine whether any of Applicant=s state postconviction
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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. An application for post-conviction review is properly filed with 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).
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 “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).
Here, the limitation period began to run on January 21, 2000, and ran unabated
until it expired on January 21, 2001. See United States v. Hurst, 322 F.3d 1256, 125961 (10th Cir. 2003) (one-year limitations period ends on the one-year anniversary of the
date upon which the period began to run). As noted above, Applicant’s first motion for
postconviction relief was not filed until June 28, 2001, more than five months after the
one-year limitation period had expired. Thus, the postconviction motion did not toll the
limitation period. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (stating
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that properly filed state court postconviction motions toll the one-year limitation period
only if they are filed within the one-year limitation period).
Moreover, Applicant’s “Motion to Request Estimate of Costs for Sentencing
Transcripts” filed on January 11, 2001 (see ECF No. 9-1, at 11) does not toll the
limitation period because it does not qualify as a properly filed state court postconviction
motion. See e.g., Woodford v. Garceau, 538 U.S. 202, 207 (2003) (holding that a
motion requesting postconviction counsel that does not state any factual or legal
grounds for relief as requires by Rule 35(c) is not a properly filed application for §
2244(d) purposes, because it does not call for a decision on the merits); May v.
Workman, 339 F.3d 1236, 1237 (10th Cir. 2003) (postconviction motions for transcripts
and petitions for writs of mandamus relating to those motions do not toll the one-year
time bar); Osborne v. Boone, 176 F.3d 489 (10th Cir. 1999) (“attempts to obtain trial
records and transcripts at public expense are not collateral proceedings which would
result in the tolling of the filing period under § 2244(d)(2)”). Thus, the Court finds that
none of Applicant’s motions toll the limitation period under § 2244(d)(1).
Here, Applicant filed his federal habeas corpus application on August 28, 2015,
more than fourteen years after the AEDPA limitations period had expired. Therefore,
the action clearly is time-barred in the absence of some other reason to toll the one-year
limitation period.
III.

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
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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 does not argue or allege any facts to meet his burden of demonstrating
that equitable tolling is appropriate in this action. Based on the above findings, the
Court will dismiss this action with prejudice as time-barred. See Brown v. Roberts, 177
Fed. App’x 774, 778 (10 th Cir. 2006) (dismissal as time-barred operates as dismissal
with prejudice). Because the action clearly is time-barred, the Court will refrain from
addressing whether the claim is 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 (ECF No. 1) is denied and this action is dismissed with prejudice as timebarred 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 5th

day of

February

, 2016.

BY THE COURT:
s/Lewis T. Babcock_________________
LEWIS T. BABCOCK, Senior Judge
United States District Court

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