Irvin v. People
| Decision Date | 11 July 2011 |
| Docket Number | Civil Action No. 10-cv-02510-PAB |
| Parties | PAUL JAMES IRVIN, Applicant, v. PEOPLE OF THE STATE OF COLORADO WARDEN CHAPMAN, and JOHN SUTHERS, the Attorney General of the State of Colorado, Respondents. |
| Court | U.S. District Court — District of Colorado |
PAUL JAMES IRVIN, Applicant,
v.
PEOPLE OF THE STATE OF COLORADO WARDEN CHAPMAN, and JOHN SUTHERS, the Attorney General of the State of Colorado, Respondents.
Civil Action No. 10-cv-02510-PAB
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
DATED: July 11, 2011.
Applicant, Paul James Irvin, is in the custody of the Colorado Department of Corrections and currently is incarcerated at the Kit Carson Correctional Center in Burlington, Colorado. Mr. Irvin initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his conviction in Case No. 06CR2196 in the District Court of Adams County, Colorado. He filed an Amended Application on December 10, 2010 and a Second Amended Application on February 25, 2011.
In an order entered on March 2, 2011, Magistrate Judge Boyd N. Boland 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). On March 11, 2011, Respondents filed a
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Pre-Answer Response. Mr. Irvin submitted a letter on March 21, 2010, which the Court will construe as a Reply.
The Court must construe liberally the Second Amended Application filed by Mr. Irvin 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 Application will be denied in part.
On May 29, 2007, a jury found Mr. Irvin guilty of one count of aggravated motor vehicle theft. Pre-Answer Resp., Ex. A at 7-8 (State Register of Actions). On August 1, 2007, the trial court sentenced Mr. Irvin to ten years in the Colorado Department of Corrections plus five years of parole. Id. at 7.
The Colorado Court of Appeals affirmed Mr. Irvin's conviction on direct appeal. See People v. Irvin, No. 07CA1806 (Colo. App. Aug. 20, 2009) (unpublished opinion) Pre-Answer Resp., Ex. D. Mr. Irving did not seek certiorari review in the Colorado Supreme Court and the mandate issued on October 16, 2009. Pre-Answer Resp., Ex. E.
On August 2, 2010, Mr. Irvin filed a motion for post-conviction relief pursuant to Colo. Crim. P. Rule 35(c), which the trial court denied on August 9, 2010. Pre-Answer Resp., Ex. A, at 6. Mr. Irvin did not file an appeal.
Mr. Irvin then filed an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, which was received by the Court on November 16, 2010. Mr. Irvin filed an Amended Application on December 10, 2010 and a Second Amended Application
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on February 25, 2011. In the Second Amended Application, Mr. Irvin asserts three claims.
Respondents argue that this action is barred by the one-year limitation period in 28 U.S.C. § 2244(d). Respondents further argue that Mr. Irvin failed to exhaust state remedies for his second and third claims and, therefore, the Second Amended Application is subject to dismissal as a mixed petition pursuant to Rose v. Lundy, 455 U.S. 509 (1982).
I. AEDPA Time Bar
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 of-(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.
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(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.
In order to apply the one-year limitation period, the Court first must determine when the judgment of conviction in Mr. Irvin's criminal case became final. Because Mr. Irvin filed a direct appeal, but did not file a petition for writ of certiorari to the Colorado Supreme Court, his conviction became final forty-six days after August 20, 2009, the date the Colorado Court of Appeals issued its decision. See Colo. App. R. 52(3) ("Any petition for writ of certiorari to review a judgment of the court of appeals shall be filed in the Supreme Court within forty-six days of the issuance of the opinion of the court of appeals, if no petition for rehearing is filed."). Therefore, the Court finds that Mr. Irvin's conviction became final on October 5, 2009. As such, the one-year statute of limitations began to run on October 6, 2009, the next business day after the conclusion of the time to appeal. See, e.g., Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2003).
The Court must next determine whether any of Mr. Irvin's state court post-conviction 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:
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(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 postconviction 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). Furthermore, "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." Gibson, 232 F.3d at 804.
There were no pending motions in Mr. Irvin's state court action between October 6, 2009 and August 1, 2010. These 300 days are counted against the statute of limitations. Mr. Irvin filed a Colo. Crim. P. Rule 35(c) motion on August 2, 2010, which the trial court denied on August...
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