Childs v. Zavaras, 98-WM-2148.
| Decision Date | 20 July 1999 |
| Docket Number | No. 98-WM-2148.,98-WM-2148. |
| Citation | 90 F.Supp.2d 1141 |
| Parties | James Arlen CHILDS, Applicant, v. Executive Director/Colo. Aristedes W. ZAVARAS; Hoyt A. Brill, PCF; and the Attorney General of the State of Colorado, Respondents. |
| Court | U.S. District Court — District of Colorado |
James Arlen Childs, Burlington, CO, pro se.
Clemmie Parker Engle, Attorney General's Office, Criminal Enforcement-Appellate, Denver, CO, for Aristedes W. Zavaras, Hoyt A. Brill, Atty. Gen. of State of Colorado.
ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION
This matter is before the Court on the recommendation of United States Magistrate Judge Patricia A. Coan, filed June 16, 1999, to dismiss this petition with prejudice. Petitioner has not filed any objection to the recommendation and is therefore not entitled to de novo review. See 28 U.S.C. § 636(b)(1).
After review of the file, the recommendation issued by Magistrate Judge Coan is ACCEPTED. Accordingly, it is ORDERED:
1. Petitioner's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 shall be dismissed with prejudice.
This matter is before the court on an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed by pro se Petitioner James Arlen Childs, pro se, on October 6, 1998. An Order of Reference under 28 U.S.C. § 636(b)(1)(A) and (B) referred the Petition to the undersigned magistrate judge on January 8, 1999 to issue a recommendation on disposition. Respondents filed their Answer to Order to Show Cause on March 1, 1999. Petitioner filed his Reply to Respondents' Answer to Order to Show Cause on March 17, 1999. The Petition is ripe for disposition.
Petitioner was convicted of second-degree burglary and second-degree sexual assault by a Denver District Court jury in 1987 (Criminal Action No. 86-CR-1247). The trial court imposed a sentence of thirty-two years on the burglary charge and a sentence of sixteen years on the sexual assault charge, to run consecutively. Petitioner appealed his conviction to the Colorado Court of Appeals, asserting that the imposition of unduly lengthy sentences based solely upon the victim's testimony of the trauma she suffered at the hands of the Petitioner constituted an abuse of the trial court's sentencing discretion under state law.1 (Respondents' Ex. N) The Colorado Court of Appeals affirmed the Petitioner's conviction on October 19, 1987, finding that the trial court did not abuse its discretion in imposing the selected sentences upon the Petitioner based upon the victim's testimony of the emotional trauma she suffered during the commission of the assault (Case No. 87-CA-0475). (Respondents' Ex. L) The Court of Appeals further concluded that because Petitioner was on parole at the time the crimes were committed, the trial court correctly imposed sentences in the aggravated range. (Id.) Childs then filed a petition for certiorari review which was stricken by the Colorado Supreme Court on September 27, 1990 for failure to comply with C.A.R. 52(b). (Respondents' Ex. K)
Petitioner filed his first motion for post-conviction relief under Colo.R.Crim.P. 35 ("Rule 35 motion") in Denver District Court in 1991 (and as supplemented in 1992), asserting that the judgments of conviction for second-degree burglary and second-degree sexual assault violate the double jeopardy prohibitions in the United States Constitution because one offense is a lesser included offense of the other. Petitioner also asserted that the consecutive sentences imposed upon him violated COLO.REV.STAT. § 18-1-408(3). (Id.) The trial court denied Petitioner's Rule 35 motion without a hearing on April 13, 1992, ruling, as a matter of law, that the convictions for second-degree burglary and sexual assault did not violate the prohibition against double jeopardy and that the trial court properly imposed consecutive sentences because the two offenses were not supported by identical evidence. (Petitioner's Ex. A) The Colorado Court of Appeals affirmed the trial court's denial of Petitioner's Rule 35 motion on February 18, 1993 (Case No. 92-CA-902). (Respondents' Ex. H) The Colorado Supreme Court denied Childs' petition for certiorari review on August 23, 1993. (Respondents' Ex. G)
Petitioner filed his second Rule 35 motion in the trial court in 1993, which he supplemented in 1995, asserting that the trial court had abused its sentencing discretion and that imposition of consecutive sentences violated Colorado law. (Respondents' Exs. C, p. 3; F-3). The trial court denied his motion without a hearing on October 31, 1995, on the ground that the consecutive sentences imposed on Petitioner were expressly authorized under Colorado law. (Respondents' Ex. F-3) Petitioner's appeal of that denial to the Colorado Court of Appeals was dismissed on May 28, 1996 and the mandate issued June 13, 1996. (Respondents' Exs. F-1 and F-2)
Petitioner filed his third Rule 35 motion in the trial court on May 8, 1997, asserting that the sentences imposed upon him were illegal because the trial court failed to sentence Petitioner based on accurate information, and failed to consider the factors set forth in COLO.REV.STAT. § 18-1-105(1)(b) and (9)(a) prior to imposing a sentence in the presumptive range, in violation of Petitioner's Fourteenth Amendment due process rights. (Respondents' Ex. E). The trial court summarily denied the motion on the ground that it lacked "any arguable merit." The Colorado Court of Appeals affirmed the trial court's decision on July 23, 1998 in Case No. 97-CA-1013 (Respondents' Ex. B), finding that Petitioner's challenge to the imposition of consecutive sentences was procedurally barred because the issue had been raised and decided against Petitioner in earlier Rule 35 motions. (Id.) The Court of Appeals also determined that Petitioner's challenges to his sentence were further attempts to relitigate the issue of whether the trial court had abused its sentencing discretion, an issue which had been raised and decided on Petitioner's direct appeal. (Id.) The Court of Appeals further concluded that Petitioner's challenge to his sentence was untimely under Colo.R.Crim.P. 35(b). (Id.)
Petitioner filed his 28 U.S.C. § 2254 petition for habeas corpus relief in this court on October 6, 1998 asserting three claims: (1) the convictions and cumulative sentences for second-degree burglary and second-degree sexual assault violate the double jeopardy provision of the United States Constitution; (2) the consecutive sentences for burglary and assault are "illegal sentences" because consecutive sentencing is not authorized by the state legislature; and (3) the sentences were based on "inaccurate information", in violation of Petitioner's Fourteenth Amendment right to due process of law.
Respondents contend that Petitioner's claims for habeas corpus relief are time-barred, and that Petitioner's second and third claims are barred from federal habeas review because Petitioner failed to raise his second claim as a constitutional claim in the state courts and procedurally defaulted his third claim. Alternatively, Respondents argue that all of Petitioner's claims should be dismissed on the merits.
Respondents argue that the claims advanced by petitioner are time-barred under the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132 § 101, 110 Stat. 1321 (codified at 28 U.S.C. §§ 2244(d)(1)-(d)(2)). The AEDPA establishes a one-year statute of limitations for habeas corpus petitions filed by state prisoners under 28 U.S.C. § 2254. 28 U.S.C. § 2244(d)(1). For prisoners whose convictions became final before April 24, 1996, the one-year limitations period commences on April 24, 1996, the effective date of the AEDPA. Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir.1998). The limitations period is tolled while a "properly filed" post-conviction motion is pending in the state courts. 28 U.S.C. § 2244(d)(2). In computing the "elapsed time on [the] limitations clock," the court subtracts the number of tolled days from the total days elapsed between April 24, 1996 and the date the habeas corpus petition is filed. Hoggro, 150 F.3d at 1226-27.
Petitioner filed his application for habeas corpus relief in this court on October 6, 1998. The total elapsed time between April 24, 1996 and October 6, 1998 is 896 days. Thus, the Petition is time-barred unless Petitioner had "properly filed" post-conviction motions pending before the state courts for 531 days. On April 24, 1996, Petitioner's second post-conviction motion was pending before the Colorado courts. The parties agree that Petitioner's second post-conviction motion was "properly filed" in the state courts. That motion was pending, and the AEDPA limitations period tolled, for fifty-one days, from April 24, 1996 through June 13, 1996 (the date the mandate on the dismissal of Petitioner's appeal issued from the Colorado Court of Appeals).
On May 8, 1997, Petitioner filed his third Rule 35 motion in the Denver District Court. (Respondents' Ex. E) That post-conviction motion was pending until the mandate by the Colorado Court of Appeals denying Petitioner's appeal issued on August 13, 1998. The parties disagree, however, as to whether Petitioner's third Rule 35 motion was "properly filed" in the Denver District Court so as to toll the limitations period under 28 U.S.C. § 2244(d)(2).
Legislative history does not shed any light on the intended meaning of "properly filed" as that term is used in 28 U.S.C. § 2244(d)(2). See S.Rep. No. 104-179 (1995), reprinted in 1996 U.S.C.C.A.N. 924; H.R.Conf.Rep. No. 104-518 (1996), reprinted in 1996 U.S.C.C.A.N. 944. In Hoggro, the Tenth...
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...prescribed by Rule 35c constitutes a procedural default for purposes of federal habeas corpus review. See, e.g., Childs v. Zavaras 90 F.Supp.2d 1141, 1150 (D. Colo. 1999), appeal dismissed, 208. F.3d 225 (10th Cir. 2000), cert. denied, 531 U.S. 905 (2000). Applicant is not entitled to feder......