Spence v. Falk et al
Filing
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ORDER dismissing this action with prejudice, and denying leave to proceed in forma pampers on appeal, by Judge Lewis T. Babcock on 2/17/16. No certificate of appealability will issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02450-GPG
PAUL WAYNE SPENCE,
Applicant,
v.
JAMES FALK, and
CYNTHIA COFFMAN, The Attorney General of the State of Colorado,
Respondents.
ORDER OF DISMISSAL
Applicant, Paul Wayne Spence, is a prisoner in the custody of the Colorado
Department of Corrections (CDOC) at the Correctional Facility in Limon, Colorado. He
has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2254. (ECF
No. 8). Mr. Spence challenges the validity of his conviction and sentence imposed in the
District Court of Denver County, Colorado. He has been granted leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915.
On December 7, 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 filed a Pre-Answer Response on December 16,
2015. (ECF No. 15). Applicant filed his Reply (ECF No. 18) on February 4, 2016, after
obtaining an extension of time.
The Court must construe liberally the Application filed by Mr. Spence 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 a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons
stated below, the ' 2254 Application will be dismissed as time-barred.
I. Background and State Court Proceedings
Mr. Spence was convicted pursuant to his guilty plea of sexual assault on a child
as part of a pattern of abuse, in Denver County District Court Case No. 99CR5072.
(ECF No. 1-1 at 4). On July 10, 2000, he was sentenced to an indeterminate prison term
of 20 years to life in the CDOC, plus 20 years to life parole. (Id.). Applicant did not file a
direct appeal.
On October 19, 2000, Mr. Spence filed a Colo. Crim. P. Rule 35(b) motion for
sentence reconsideration, which he supplemented on November 17, 2000. (Id.). The
state district court denied the motion on the merits on December 12, 2000. (Id.).
Applicant did not appeal.
On April 19, 2001, Mr. Spence filed a motion to reconsider the state district court’s
denial of his Rule 35(b) motion, which the court denied as untimely on April 23, 2001.
(Id.). Applicant did not appeal.
On December 16, 2002, Mr. Spence filed a Colo. Crim. P. Rule 35(c) motion, which
was denied by the state district court on the merits on February 12, 2003. (Id.; see also
ECF No. 15-2 at 2-3). Applicant did not appeal.
On June 23, 2005, Mr. Spence filed a letter in state district court, which the court
construed as a second Rule 35(c) motion. (ECF No. 1-3 at 2-4). The court denied the
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motion as time barred and successive on August 14, 2005. (Id.). Applicant did not
appeal.
On September 6, 2007, Mr. Spence filed a Colo. Crim. P. Rule 35(a) motion, which
the state district court “struck” as successive on October 29, 2007. (ECF No. 1-4).
Applicant did not appeal.
On October 29, 2012, Mr. Spence filed another Colo. Crim. P. Rule 35(a) motion,
arguing that the parole portion of his sentence was illegal, which was denied by the state
district court on November 7, 2012. (ECF No. 15-1 at 3). On appeal, the Colorado
Court of Appeals affirmed the district court’s order in People v. Gary Wayne Spence, No.
13CA0652 (Colo. App. Dec. 11, 2014) (unpublished), but remanded the case for
correction of the mittimus to reflect the indeterminate term of parole that was imposed by
the district court. (ECF No. 15-8). The Colorado Supreme Court denied Applicant’s
petition for certiorari review on August 24, 2015. (ECF No. 15-10).
Mr. Spence initiated this action on November 5, 2015 by filing a Prisoner
Complaint. Pursuant to an order directing him to cure deficiencies, Applicant filed his
§ 2254 Application on December 3, 2015. He asserts three claims in the § 2254
Application.
Respondents argue in the Pre-Answer Response that the Application is barred by
the one-year limitation period in 28 U.S.C. ' 2244(d). (ECF No. 15 at 5-9).
Respondents further contend that Mr. Spence’s claims are procedurally defaulted and fail
to state an arguable constitutional violation. (Id. at 9-16).
II. AEDPA Time Bar
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) provides:
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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).
Mr. Spence’s conviction became final on August 24, 2000, 45 days after he was
sentenced, when the time for filing a direct appeal expired. See 28 U.S.C.
§ 2244(d)(1)(A); Colo. App. R. 4(b)(1) (2000). The one-year limitation period commenced
on that date. See Holland v. Florida, 130 S. Ct. 2549, 2555 (2010); Al-Yousif v. Trani,
779 F.3d 1173, 1178 (10th Cir. 2015).
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) Awhen its delivery
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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).
The AEDPA time clock ran for 56 days, from August 24, 2000 to October 19, 2000,
when Mr. Spence filed a Colo. Crim. P. Rule 35(b) motion in the state district court. See,
e.g., Robinson v. Golder, 443 F.3d 718, 720-21 (10th Cir. 2006) (properly filed motion
under Colo. R. Crim. P. 35(b) is a collateral attack that tolls the limitation period).
Because Mr. Spence did not appeal the district court’s December 12, 2000 Order
denying the Rule 35(b) motion, the AEDPA time period began to run again 45 days later,
on January 26, 2001. See Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000) (holding
that “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”); see also Colo. App. Rule 4(b)(1) (2000) (party
must appeal a judgment or order within 45 days).
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Mr. Spence’s April 19, 2001 motion to reconsider the denial of his Colo. Crim. P.
Rule 35(b) motion did not toll the limitation period because it was denied as untimely and,
therefore, was not “properly filed” within the meaning of § 2244(d)(2). See Pace v.
DiGuglielmo, 544 U.S. at 417 (postconviction motion is not “properly filed” if barred by the
statute of limitations).
The AEDPA time clock ran unabated from January 26, 2001, until it expired 309
days later, in December 2001. Mr. Spence filed his second state post-conviction motion
in December 16, 2002. However, state post-conviction motions filed after the passage of
the one-year period are not relevant to the timeliness of the federal application. See
Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2004) (AOnly state petitions for
post-conviction relief filed within the one year allowed by AEDPA will toll the statute of
limitations.@); Fisher v. Gibson, 262 F.3d 1135, 1142B43 (10th Cir. 2001) (same).
Accordingly, the Court finds that the ' 2254 Application is time-barred unless equitable
tolling applies.
III. Equitable Tolling
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, 130 S.Ct. at 2562; Gibson,
232 F.3d at 808. Simple excusable neglect is not sufficient to support equitable tolling.
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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.
Spence bears the burden of demonstrating that equitable tolling is appropriate in this
action. See id.
Applicant argues in his Reply that the one-year period should be equitably tolled
because he had a constitutional right to have counsel file a direct appeal of his conviction
or sentence. (ECF No. 18 at 7-8). According to Mr. Spence, “a defendant does not
need to express to counsel his intent to appeal for counsel to be constitutionally obligated
to perfect defendant’s appeal.” (Id. at 7).
The one-year limitation period is subject to equitable tolling when “serious
instances of attorney misconduct” have occurred. Holland, 130 S.Ct. at 2564; see also
Fleming v. Evans, 481 F.3d 1249, 1256 (10th Cir. 2007) (agreeing with other circuits in a
case prior to Holland that “sufficiently egregious misconduct on the part of a habeas
petitioner's counsel may justify equitable tolling of the AEDPA limitations period.”).
Furthermore, the Supreme Court has recognized that an attorney's conduct can
constitute an “extraordinary circumstance” where counsel “essentially abandon[s] his
client” because “a client [cannot] be faulted for failing to act on his own behalf when he
lacks reason to believe his attorneys of record, in fact, are not representing him.” Maples
v. Thomas, ____U.S. ____, 132 S.Ct. 912, 923 (2012).
In Fleming, the petitioner's substantiated allegations that he had been actively
misled by counsel to believe a habeas petition had been prepared and would be filed
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were sufficient to warrant an evidentiary hearing to consider whether equitable tolling was
appropriate. 481 F.3d at 1256-57. The petitioner in Fleming specifically alleged that he
retained counsel nearly one year before the expiration of the filing deadline; he contacted
counsel several times over the course of the year; counsel repeatedly reassured him that
a petition was being prepared and would be filed; and, counsel failed to file a draft petition
the petitioner had submitted until after the time limitation expired. See id.
In Holland, the petitioner consistently and diligently urged his attorney to file a
timely habeas petition, but the attorney consistently and delinquently ignored him. 130
S.Ct. at 2555–59. The Supreme Court held that petitioner's claim that he was abandoned
by his attorney, if true, “would suffice to establish circumstances beyond his control.” Id.
at 2568.
This case is distinguishable from the circumstances present in Holland and
Fleming because Mr. Spence does not allege that he ever communicated with defense
counsel about filing a direct appeal; followed up with counsel to determine whether a
direct appeal was filed; or, that he was continuously misled to believe that counsel
actually was preparing a direct appeal. Indeed, Mr. Spence stated in his Opening Brief
appealing the state district court’s denial of his October 2012 state post-conviction motion
that the Colorado Public Defender’s Office notified him on December 13, 2000 that his
Colo. Crim. P. Rule 35(b) motion “was denied” and “there was nothing else that could be
done to reduce sentence.” (ECF No. 15-7 at 5). At that point, Applicant should have
known that defense counsel had not filed, and had no intention of filing, a direct appeal of
his conviction or sentence.
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Furthermore, even if Applicant’s claim of attorney abandonment could be credited,
Mr. Spence has failed to allege facts to show that he acted diligently to preserve his
federal rights. After Mr. Spence’s motion for sentence reconsideration was denied in
December 2000, Applicant filed additional state post-conviction motions in December
2002, June 2005 and September 6, 2007, and October 2012. He did not appeal any of
the trial court’s orders until April 2013. (See ECF No. 15-1 at 3-4). It is clear from the
record that regardless of defense counsel’s failure to file a direct appeal, Mr. Spence was
dilatory in waiting until November 2015, more than 15 years after his conviction became
final, to file his § 2254 Application in this Court. See, e.g., Mack v. Falk, No. 12-1303,
2013 WL 410444 at *3 (10th Cir. Feb. 4, 2013) (unpublished) (A. . . Maples does not stand
for the proposition that a petitioner's initial Alack [of] reason to believe his attorneys of
record, in fact, are not representing him@ might excuse complete inaction on the part of
the petitioner for several years.@). See also Burger v. Scott, 317 F.3d 1133, 1141 (10th
Cir.2003) (recognizing that the Tenth Circuit “has generally declined to apply equitable
tolling when it is facially clear from the timing of the state and federal petitions that the
petitioner did not diligently pursue his federal claims.”).
Applicant does not provide any other basis for equitable tolling of the one-year
period and none is evident from his filings. Further, Mr. Spence does not allege any facts
to demonstrate that he is actually innocent of the crime or that he actively pursued his
judicial remedies but filed a defective pleading within the statutory period. Accordingly,
the Court finds that the ' 2254 Application is time-barred.
The Court need not reach Respondents= alternative argument that Mr. Spence’s
claims are procedurally defaulted.
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IV. Orders
For the reasons discussed above, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
' 2254 (ECF No. 8), filed by Applicant, Paul Wayne Spence, is DENIED as time-barred
under 28 U.S.C. ' 2244(d). It is
FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that no certificate of appealability will issue because jurists
of reason would not debate the correctness of the procedural ruling and Mr. Spence 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
for the purpose of appeal. 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. See Coppedge v. United
States, 369 U.S. 438 (1962). If Mr. Spence 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 United
States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R.
App. P. 24.
DATED February 17, 2016. at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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