IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-001953-BNB

ANTHONY HERNANDEZ,

Applicant,

v.

STEVE HARTLY, and

THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents.

ORDER OF DISMISSAL

Applicant, Anthony Hernandez, acting pro se, initiated this action by filing an

Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Mr. Hernandez

is a prisoner in the custody of the Colorado Department of Corrections (DOC) at the

Arkansas Valley Correctional Facility in Crowley, Colorado. Mr. Hernandez is

challenging the validity of his conviction and sentence in Denver County District Court

Case No. 93CR2625.

On August 26, 2011, Magistrate Judge Boyd N. Boland ordered 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 pursuant to 28

U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses in

this action. On October 11, 2011, Respondents filed a Motion for Leave to File Motion

to Dismiss, Doc. No. 14, and a Motion to Dismiss, Doc. No. 15. In response to the

Motion fo File, Mr. Hernandez filed a “Motion to Order Respondents to Answer and

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Address all Issues Raised in 2245 [sic] Motion,” Doc. No. 16. Magistrate Judge Boland

granted Respondents’ Motion for Leave to File Motion to Dismiss.

The Court reviewed the Motion to Dismiss, found discrepancies in Respondents’

citations, and directed Respondents to supplement the Motion to Dismiss with

necessary corrections. Respondents filed an Amended Motion to Dismiss, Doc. No. 20,

and in response to the Amended Motion, Mr. Hernandez filed a Motion to Deny

Amended Motion to Dismiss, Doc. No. 21.

The Court must construe liberally the Application and all responses filed by Mr.

Hernandez 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 cannot act as an advocate for a pro se litigant. See Hall, 935 F.2d

at 1110. For the reasons stated below, the Court will grant Respondents’ Amended

Motion to Dismiss and dismiss the action.

Mr. Hernandez was convicted by a trial jury of aggravated robbery, robbery,

second degree kidnapping, first degree assault, and two counts of menacing in the

Denver District Court on February 10, 1994, and was sentenced on March 14, 1994, to

a total of 134 years in the DOC. Mot. to Dismiss, Ex. A at 10-11. His sentence was

affirmed on appeal on September 26, 1996, Ex. B at 1, and his petition for certiorari

review was denied on May 21, 1997, id. at 2.

Respondents argue in the Amended Motion to Dismiss that this action is barred

by the one-year limitation period in 28 U.S.C. § 2244(d). That statute provides as

follows:

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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 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.

(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).

Respondents specifically contend that the one-year limitation period began to run

on August 20, 1997, the day after Mr. Hernandez’s conviction became final and that,

although Mr. Hernandez filed many postconviction motions and appeals, the one-year 

limitation period expired before Mr. Hernandez filed his first postconviction motion on

February 10, 1999.

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To apply the one-year limitation period, the Court first must determine the date

on which Mr. Hernandez’s conviction became final. Respondents have attached a copy

of the Register of Actions for the Denver District Court Case No. 93CR2625 and the

Colorado Court of Appeals (CCA) Case No. 94CA616. See Am. Mot. to Dismiss at

Apps. A and B. Mr Hernandez does not disagree with the entries on the Registry. 

According to the Denver District Court Register, Mr. Hernandez was sentenced

on either March 14 or March 15, 1994. App. A at 10. Mr. Hernandez’s petition for

certiorari review in his direct appeal was denied on May 21, 1997. Id., App. B at 2. 

Although Mr. Hernandez did not file a petition for a writ of certiorari in the United States

Supreme Court on direct appeal, he had ninety days to do so after the Colorado

Supreme Court (CSC) denied his petition for certiorari review. See Sup. Ct. R. 13.1. 

Therefore, calculating from May 22, 1997, the day after the writ for certiorari was

denied, Applicant’s conviction became final August 19, 1997, when the time for seeking

review in the United States Supreme Court expired. See Locke v. Saffle, 237 F.3d

1269, 1273 (10th Cir. 2001) (citing Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.

1999).

The first postconviction motion was entered on the Denver District Court Register

on February 10, 1999. See App. A at 4. Mr. Hernandez does not disagree with this

entry. In fact, he concedes that the motion for reduction of sentence was filed “out of

time” on February 10. He appears to argue that the time from August 20, 1997, the day

after his conviction and sentence became final, until February 9, 1999, the day prior to

when he filed a motion for reduction of sentence, should be equitably tolled based on

extraordinary circumstances. See Oct. 31, 2011 Resp. at 2. Mr. Hernandez also claims

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that his postconviction motion still remains pending in state court because the district

state court has not entered a final order in the motion. Id.

“Only state petitions for post[ ]conviction relief filed within the one year allowed by

AEDPA will toll the statute of limitations.” Clark v. Oklahoma, 468 F.3d 711, 714 (10th

Cir. 2006); see also 28 U.S.C. § 2244(d)(2). The February 1999 motion was not filed

within the one-year time limitation that ran from August 19, 1997, the day after Mr.

Hernandez’s conviction and sentence became final, until August 19, 1998. The Court,

therefore, finds that the one-year time limitation ran on August 19, 1998, and the action

is time-barred.

“[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] 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

timely filing.” Id. at 2562 (internal quotation marks and citation omitted); accord Yang v.

Archuleta, 525 F.3d 925, 929 (10th Cir. 2008) (“ ‘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).

In addition, equitable tolling may be appropriate if the inmate is actually innocent

or if the inmate actively pursues judicial remedies but files a defective pleading within

the statutory period. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). “[A]

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sufficiently supported claim of actual innocence creates an exception to procedural

barriers for bringing constitutional claims, regardless of whether the petitioner

demonstrated cause for the failure to bring these claims forward earlier.” Lopez v.

Trani, 628 F.3d 1228, 1230 (10th Cir. 2010).

Nothing Mr. Hernandez states in either his Application or his two pleadings filed

in response to the Motion to Dismiss and the Amended Motion to Dismiss, Document

Nos. 18 and 21, supports a finding for equitable tolling. Mr. Hernandez does not allege

that he is actually innocent, and he fails to assert with any specificity how he pursued

his claims diligently or what extraordinary circumstances prevented him from filing the

instant action in a timely manner. His claims of due diligence and extraordinary

circumstances are vague referrals to the number of motions and appeals that he filed

with the state courts.

Mr. Hernandez, however, does provide a copy of a state court order that allowed

him to file his motion for reduction of sentence out of time. The order alone does not

meet the requirements under Yang that Mr. Hernandez must state with specificity the

steps he took to diligently pursue his claims. Even if the Court were to find that

extraordinary circumstances existed to toll the time for purposes of § 2244(d) from

August 20, 1997, until February 9, 1999, the Application still is time-barred.

Mr. Hernandez does not disagree that the CCA dismissed his last appeal

regarding his postconviction motion on April 14, 2008. He even attached a copy of the

order to Document No. 16. Mr. Hernandez, however, contends that the CCA’s

dismissal of his appeal was due to the state district court’s failure to enter a final

judgment in his postconviction motion. He also asserts that when he challenged the

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nonfinal judgment in the state district court the judge still failed to enter a final judgment. 

Mr. Hernandez further contends that the state district court’s entry on May 12, 2008,

regarding his postconviction motion, was not a final order but just a response to a letter

that he had written to the chief judge of the state district court. The entry at issue states

“Order Judge Larry J. Naves Letter to Deft In Response to Deft Letter to Chief Judge,

after Review Of The File The Ct Finds That All Issues Raided [sic] By Deft Have Been

Ruled On And Finds There Are No Pending Motions.” App. A at 3.

Even if the May 12 docket entry is insufficient to find a final judgment was

entered in Mr. Hernandez’s postconviction motion, Mr. Hernandez did not appeal the

May 12 Order, nor did he file any further challenges to the order other than a June 18,

2008 letter. If Mr. Hernandez believed the May 12 order was not a final judgment his

failure to take reasonable steps to secure an expeditious ruling on his postconviction

motion resulted in the motion’s abandonment. See People v. Fuqua, 764 P.2d 56, 58

(Colo. 1988) (defendant deemed to abandon a Rule 35(b) post-conviction motion when

he does not “take reasonable efforts to secure an expeditious ruling on the motion”);

People v. Valdez, 178 P.3d 1269, 1281 (Colo. App. 2007) (rule for abandonment used

in Fuqua applied to Rule 35(c) postconviction motion).

Mr. Hernandez is required to pursue his claims diligently. He did not appeal the

state district court’s May 12 order and only now after three years seeks to pursue his

claims in this Court. The Court finds Mr. Hernandez has abandoned any postconviction

motion in state district court and has failed to show due diligence in pursuing his claims. 

The Court, therefore, finds that this action is time-barred.

Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal

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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 Mr. Hernandez files a notice of appeal he must also pay the full $455.00

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 Respondents’ Motion to Dismiss, Doc. No. 15, and Amended

Motion to Dismiss, Doc. No. 20, are granted. It is

FURTHER ORDERED that the Application for Writ of Habeas Corpus Pursuant

to 28 U.S.C. § 2254 is denied and the action is dismissed as barred by the one-year

limitation period in 28 U.S.C. § 2244(d). It is

FURTHER ORDERED that no certificate of appealability shall issue because

Applicant 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. It is

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FURTHER ORDERED that Mr. Hernandez’s “Motion to Order Respondents to

Answer and Address all Issues Raised in 2245 [sic] Motion,” Doc. No. 16, is denied. 

This Motion was addressed in the Court’s November 21, 2011 Order granting

Respondents’ Motion to Dismiss. 

DATED at Denver, Colorado, this 12th day of April , 2012.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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