IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02353-BNB

LONG BA PHON,

Applicant,

v.

BRIGHAM SLOAN, and

THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents.

ORDER OF DISMISSAL

Applicant, Long Ba Phan, acting pro se, initiated this action by filing an

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

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

County Correctional Facility in Las Animas, Colorado. Applicant is challenging the

validity of his conviction and sentence in Jefferson County District Court Case No.

00CR2752.

On September 13, 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. Respondents filed a Pre-Answer Response on

September 29, 2011. Applicant did not reply to the Response.

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The Court must construe the Application liberally because Applicant 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 dismiss the action.

Applicant was convicted by a jury of attempted first degree murder (extreme

indifference), first degree assault (extreme indifference), first degree assault, two counts

of menacing, and two counts of crime of violence, and was sentenced to a total of forty

years of incarceration in the DOC. Pre-Answer Resp. at App. O. Applicant asserts that

he was convicted on June 20, 2001; he filed a direct appeal that was denied by the

highest state court on April 9, 2007; and he filed a postconviction motion on June 24,

2008, which he appealed to the highest state court but was denied on March 28, 2011.

Respondents concur that Applicant’s petition for certiorari review in his direct

appeal was denied on April 9, 2007. Respondents, however, contend that Applicant

filed his first postconviction motion on August 6, 2007, seeking a modification of his

sentence; the motion was denied on August 17, eleven days later; but Applicant did not

appeal the denial. Respondents further assert that Applicant filed a second

postconviction motion on May 15, 2008; which was denied on June 2, 2008; but again

Applicant did not appeal the denial. Respondents also assert that Applicant filed his

third and final postconviction motion on June 24, 2008; the motion was denied by the

district court on July 31, 2008; Applicant appealed the denial; but his petition for

certiorari review was denied on March 28, 2011. Applicant does not refute

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Respondents’ findings. 

Applicant filed the instant action on September 7, 2011. He signed and dated the

Application on August 22, 2011, however.

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

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).

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

Applicant’s conviction became final. Applicant’s petition for certiorari review in his direct

appeal was denied on April 9, 2007. Pre-Answer Resp. at App. L. Although Applicant

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 denied his

petition for certiorari review. See Sup. Ct. R. 13.1. Therefore, figuring from April 10,

2007, the day after the writ for certiorari was denied, Applicant’s conviction became final

July 9, 2007, 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); Sup. Ct. R. 30.1. (the last day of the

period computed is included unless it is a Saturday, Sunday, in which event the period

runs until the end of the next day that is not a Saturday or Sunday). 

Applicant did not file his first postconviction motion until August 6, 2007. Time for

purposes of § 2244(d) was not tolled from July 10, 2007, the day after his conviction

and sentence was final, until August 5, 2007, the day before he filed his first

postconviction motion, for a total of 27 days. The next period of time that is not tolled

under § 2244(d)--a total of 226 days--extends from October 2, 2007, the day after the

time ran for Applicant to file an appeal of the denial of his first postconviction motion,

see Colo. App. R. 4(b), until May 14, 2008, the day prior to when he filed his second

postconviction motion. Although the second postconviction motion was denied on June

2, 2008, and the time to appeal ran on July 27, 2008, Applicant filed a third

postconviction which remained pending in state court from June 24, 2008, until March

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28, 2011, when Applicant’s petition for certiorari review was denied. The time from

March 29, 2011, the day after the petition for certiorari review was denied, until

September 7, 2011, the date Applicant filed this action--a total of 163 days--also is not

tolled for the purposes of § 2244(d). Therefore, the total time not tolled is 416 days, and

the action is time-barred under § 2244(d). 

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

for equitable reasons. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Generally,

equitable tolling is appropriate if Applicant shows both “that he has been pursuing his

rights diligently” and “that some extraordinary circumstance stood in his way” and

prevented him from filing in a timely manner. Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005); see Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Equitable tolling also

may be appropriate if the inmate actually is 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). However, simple excusable neglect is

not sufficient to support equitable tolling. See id. Furthermore, in order to demonstrate

he pursued his claims diligently, Applicant must “allege with specificity ‘the steps he took

to diligently pursue his federal claims.’” Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir.

2008) (quoting Miller, 141 F.3d at 978). In the rare and extraordinary case in which a

habeas petitioner can demonstrate equitable tolling is appropriate on actual innocence

grounds, the petitioner is not required to demonstrate he diligently pursued the actual

innocence claim. Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010).

The magistrate judge directed Applicant to address equitable tolling in his Reply,

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but he failed to do so. Because Applicant does not state that he is actually innocent,

has been pursuing his claims diligently, or some extraordinary circumstance prevented

him from filing the instant action in a timely manner, the action will be dismissed as

barred by the one-year limitation period. Accordingly, it is

ORDERED that the Application 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 that jurists of reason would find it

debatable whether the procedural ruling is correct and whether the underlying claim has

constitutional merit.

DATED at Denver, Colorado, this 22nd day of November , 2011.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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