IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-01981-LTB

DAVID RICHARD CAIN,

Applicant,

v.

RAE TIMME, Warden, and

THE ATTORNEY GENERAL OF THE STATE OF COLORADO, 

Respondents.

 

ORDER DENYING MOTION TO RECONSIDER 

 

Applicant, David Richard Cain, a Colorado state prisoner, filed pro se a “Motion

to Reconsider Dismissal of Applicant’s Writ of Habeas Corpus Pursuant to 28 U.S.C. 

§ 2254" (Doc. # 17) on December 21, 2011. Mr. Cain asks the Court to reconsider the

Order of Dismissal of November 8, 2011. The Court must construe Applicant’s filings

liberally because Mr. Cain is a pro se litigant. See Haines v. Kerner, 404 U.S. 519,

520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Motion will

be denied for the reasons stated below. 

A litigant subject to an adverse judgment, and who seeks reconsideration by the

district court of that adverse judgment, may “file either a motion to alter or amend the

judgment pursuant to Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment

pursuant to Fed. R. Civ. P. 60(b).” Van Skiver v. United States, 952 F.2d 1241, 1243

(10th Cir. 1991). Mr. Cain filed the Motion to Reconsider more than twenty-eight days

after the Order of Dismissal and the Judgment were entered in the instant action. The

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Court, therefore, finds that the Motion for Reconsideration is filed pursuant to Rule

60(b). Id.; see also Fed. R. Civ. P. 59(e).

 Relief under Rule 60(b) is “extraordinary and may only be granted in exceptional

circumstances.” See Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th

Cir. 2000) (internal quotations and citations omitted). The grounds justifying relief from a

final judgment are set forth in Fed. R. Civ. P. 60(b) and include a mistake and “any [ ]

reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). Upon review of the motion for

reconsideration and the entire file, the Court concludes that Mr. Cain fails to

demonstrate that any ground justifying relief from the judgment exists in his case. 

Mr. Cain filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §

2254 challenging his convictions in Jefferson County Court Case No. 99CR171. 

Respondents filed a Pre-Answer Response and asserted that the Application was

untimely pursuant to 28 U.S.C. § 2244(d). The Court agreed and entered an order

dismissing the Application as time-barred on November 8, 2011. Specifically, the Court

determined that Applicant’s state court convictions were final on May 6, 2001. The

Court further found that at least 495 days elapsed between May 7, 2011, when the

statute of limitations commenced, and August 1, 2011, the date Mr. Cain filed his 

§ 2254 Application, excluding the periods when a properly filed state post-conviction

motion was pending in the state courts. The Court therefore determined that Mr. Cain’s

federal Application was untimely. 

In his Motion to Reconsider, Mr. Cain argues that the Court has miscalcuated the

date his conviction became final. He asserts that the AEDPA one-year statute of

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limitations restarted on or after September 23, 2010, when the Colorado Court of

Appeals issued an order remanding the case to the state trial court with directions to

amend the mittimus to reflect that he is subject to discretionary parole, rather than a

term of mandatory parole. See People v. Cain, No. 10CA0110 (Colo. App. Sept. 23,

2010) (unpublished) (Doc. #11-10, at 7-8). 

Under Colorado law, when a court corrects or amends a sentence pursuant to

Colo. R. Crim. P. Rule 35(a), the correction renews the statute of limitations for

attacking the underlying conviction pursuant to Colo. Crim. P. Rule 35(c) motion. Leyva

v. People, 184 P.3d 48, 50-51 (Colo. 2008). However, federal law determines when

Mr. Cain’s judgment of conviction becomes final to trigger the commencement of the

statute of limitations for seeking post-conviction relief in federal court pursuant to 28

U.S.C. § 2254. See Clay v. United States, 537 U.S. 522, 531 (2002) (“[F]inality for the

purpose of § 2244(d)(1)(A) is to be determined by reference to a uniform federal rule.”). 

Mr. Cain has not provided any federal authority to support his argument that the

one-year statute of limitations for § 2254 petitions restarts when a state trial court

corrects the mittimus to reflect discretionary, rather than mandatory, parole. Cf.

Graham v. Smelser, 422 F. App’x 705, 707-08 (10th Cir. 2011) (unpublished) (statute

of limitations on § 2254 petition began running when the period for filing a timely direct

appeal expired and did not restart when the state court entered an amended mittimus

seven months later to give him credit for 390 days of time served). 

The federal rule is that a defendant's judgment of conviction is final at “the

conclusion of direct review or the expiration of time for seeking such review.” United

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States v. Burch, 202 F.3d 1274, 1278 (10th Cir. 2000). Accordingly, Mr. Cain’s

conviction became final on May 6, 2001, ninety days after the Colorado Supreme Court

denied his petition for certiorari review on direct appeal, when the time for seeking

review in the United States Supreme Court expired. See Sup.Ct. R. 13(1); Locke v.

Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). As discussed in the dismissal order, Mr.

Cain filed his § 2254 Application after the AEDPA one-year limitations period expired.

Furthermore, Mr. Cain does not present any basis for equitable tolling in his

Motion to Reconsider. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). 

 In short, Mr. Cain has failed to demonstrate exceptional circumstances that

would warrant relief from the dismissal order. See Servants of the Paraclete, 204 F.3d

at 1009. Accordingly, it is

ORDERED that the “Motion to Reconsider Dismissal of Applicant’s application for

a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254" (Doc. # 17), filed on December

21, 2011, is DENIED. 

 Dated at Denver, Colorado this 5th day of January , 2012. 

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court 

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