IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02460-BNB

CARLOS BUSTAMANTE HURTADO, 

Applicant, 

v.

KEVIN MILYARD, and 

THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents.

ORDER OF DISMISSAL

Applicant, Carlos Bustamante Hurtado, is a prisoner in the custody of the

Colorado Department of Corrections (DOC) who currently is incarcerated at the

correctional facility in Sterling, Colorado. Mr. Hurtado filed pro se on September 19,

2011, an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No.

1) challenging the validity of his Colorado conviction in Weld County District Court Case

No. 06CR1036. ECF No. 1 is an example of the convention the Court will use to identify

the docket number assigned to a specific paper by the Court's electronic case filing and

management system (CM/ECF). The Court will use this convention throughout this

order. Mr. Hurtado has been granted leave to proceed pursuant to 28 U.S.C. § 1915. 

On October 20, 2011, after being ordered to do so, Mr. Hurtado filed an amended

habeas corpus application (ECF No. 5). On October 21, 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

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court remedies under 28 U.S.C. § 2254(b)(1)(A). See ECF No. 7. On October 31,

2011, Respondents submitted their pre-answer response. See ECF No. 10. On

November 14 and 16, 2011, Mr. Hurtado filed a reply to the pre-answer response. See

ECF Nos. 11 and 12. 

The Court must construe Mr. Hurtado’s filings liberally 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 Court will deny the amended application and dismiss the action as barred by

the one-year limitation period.

Mr. Hurtado originally was charged in Weld County District Court Case No.

06CR1036 with possession with intent to distribute a controlled substance (1,000 grams

or more), distribution of a controlled substance (1,000 grams or more), and possession

of a controlled substance (1,000 grams or more). On November 6, 2006, pursuant to a

plea agreement, Mr. Hurtado pleaded guilty to the distribution count. See ECF No. 10

(pre-answer response), ex. A (state court register of actions) at 7-8. The remaining

counts, as well as counts in two separate cases, were dismissed. On December 15,

2006, Mr. Hurtado was sentenced to twenty years of imprisonment in the DOC. See

ECF No. 10, ex. A at 7. Mr. Hurtado did not file a direct appeal.

On April 6, 2007, Mr. Hurtado filed a motion for reconsideration of sentence

pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure (ECF No. 10, ex. A

at 7) and he filed a supplement to the motion on June 5, 2007. See ECF No. 10, ex. A

at 7. On July 24, 2007, the trial court denied the motion for sentence reconsideration. 

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See ECF No. 10, ex. A at 7. He did not appeal. 

On December 16, 2009, Mr. Hurtado filed a Colo. R. Crim. P. 35(c) motion. See

ECF No. 10, ex. A at 6. The trial court denied the motion on January 12, 2010. See

ECF No. 10, ex. A at 5. Mr. Hurtado appealed, and the Colorado Court of Appeals

affirmed on February 17, 2011. See ECF No. 10, ex. C (People v. HurtadoBustamante, No. 10CA0400 (Colo. Ct. App. Feb. 17, 2011). On June 20, 2011, the

Colorado Supreme Court denied certiorari review. See ECF No. 10, ex. D. 

On September 19, 2011, Mr. Hurtado filed the original habeas corpus application

in this Court. Respondents argue that this action is barred by the one-year limitation

period in 28 U.S.C. § 2244(d). 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

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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

when the judgment of conviction in Mr. Hurtado’s criminal case became final. 

The final sentence in Mr. Hurtado’s criminal case was entered on December 15, 2006. 

Because Mr. Hurtado did not file a direct appeal, the Court finds that his conviction

became final on January 29, 2007, forty-five days after he was sentenced. See Colo.

App. R. 4(b). As such, the one-year statute of limitations appears to have began to run

on January 30, 2007, the next business day after the conclusion of the time to appeal. 

The Court next must determine whether any of Mr. Hurtado’s state court postconviction motions tolled the one-year limitation period. Pursuant to § 2244(d)(2), a

properly filed state court post-conviction motion tolls the one-year limitation period while

the motion is pending. The issue of whether a post-conviction motion is pending is a

matter of federal law. 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.

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Here, the limitations period ran for 66 days before Mr. Hurtado filed his Colo. R.

Crim. P. 35(b) motion for sentence reconsideration on April 6, 2007. Mr. Hurtado then

had 45 days from July 24, 2007, when the trial court denied the postconviction motion,

until September 7, 2007, to seek an appeal under state law. See Gibson, 232 F.3d at

804, see also Colo. R. App. P. 4(b). He failed to do so. As such, the limitations period

began to run on September 8, 2007, and expired 299 days later on July 3, 2008. Mr.

Hurtado did not file his Colo. R. Crim. P. 35(c) motion until December 16, 2009, 531

days later. 

Because the one-year limitation period expired before Mr. Hurtado filed his Colo.

R. Crim. P. 35(c) motion, Respondents argue that the motion, and any subsequent

motions, could not have tolled the one-year limitation period. See Clark v. Oklahoma,

468 F.3d 711, 714 (10th Cir. 2006) (stating that state court postconviction motions toll

the one-year limitation period only if they are filed within the one-year limitation period).

Therefore, they further argue, the habeas corpus application appears to be time-barred. 

The one-year limitation period in § 2244(d) is not jurisdictional and may be tolled

for equitable reasons in appropriate extraordinary situations when circumstances

beyond a prisoner’s control make it impossible to file the habeas corpus application on

time. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). In addition, equitable

tolling may be appropriate if (1) the inmate is actually innocent; (2) an adversary’s

conduct or other uncontrollable circumstances prevents the inmate from timely filing; or

(3) the inmate actively pursues judicial remedies but files a defective pleading within the

statutory period. See Gibson, 232 F.3d at 808. Simple excusable neglect, however, is

not sufficient to support equitable tolling. See id. Furthermore, equitable tolling is

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appropriate only if the inmate pursues his claims diligently. See Miller, 141 F.3d at 978. 

Finally, Mr. Hurtado bears the burden of demonstrating that equitable tolling is

appropriate in this action. See id. at 977. 

In his reply to the pre-answer response filed on November 16, 2011 (ECF No.

12), Mr. Hurtado contends that the one-year limitation period should be equitably tolled

because his public defender had a “duty” to file his direct appeal, and he had “no control

over any decision to file any direct appeal process.” See ECF No. 12 at 1-2. However,

this argument does not excuse Mr. Hurtado’s failure to file his habeas corpus

application in a timely manner. To be entitled to equitable tolling, Mr. Hurtado must

have pursued his claims diligently and demonstrated that his failure to file his habeas

application in a timely manner was caused by extraordinary circumstances beyond his

control. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000); see also Gibson,

2332 F.3d at 808 (equitable tolling of the one-year limitation period is available “only in

rare and exceptional circumstances” (quotation omitted)).

Mr. Hurtado is not entitled to equitable tolling based upon his state counsel’s

alleged failure to pursue a direct appeal. His counsel’s failure did not prevent Mr.

Hurtado from pursing a direct appeal himself, or seeking federal review in a timely

manner. Mr. Hurtado’s explanation is insufficient to account for his failure to file the

instant § 2254 application within the one-year limitations period dictated by § 2244(d). 

See Marsh, 223 F.3d at 1220 (“ignorance of the law, even for an incarcerated pro se

petitioner, generally does not excuse prompt filing”). Accordingly, Mr. Hurtado has

failed to raise any convincing reason for this Court to toll the one-year limitations period. 

Therefore, under § 2244(d), Mr. Hurtado is time-barred from filing a federal habeas

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corpus action in this Court. Because the action clearly is time-barred, the Court will

refrain from addressing whether Mr. Hurtado has exhausted his state court remedies. 

Finally, 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 and therefore in forma pauperis status

will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438

(1962). If Mr. Hurtado files a notice of appeal he must also pay the full $455 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. 

Accordingly, it is

ORDERED that the application is denied and the action is dismissed because it

is barred by the one-year limitation period in 28 U.S.C. § 2244(d). It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is

denied. It is

FURTHER ORDERED that no certificate of appealability will issue because

Applicant has not made a substantial showing of the denial of a constitutional right.

DATED at Denver, Colorado, this 13th day of January , 2012.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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