IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02556-BNB

NED PACE, JR.,

Applicant,

v.

JOHN CHAPDELAINE, Acting Warden,

THE PEOPLE OF THE STATE OF COLORADO, and

JOHN SUTHERS, the Attorney General of the State of Colorado,

Respondents.

ORDER OF DISMISSAL

Applicant, Ned Pace, Jr., is in the custody of the Colorado Department of

Corrections (DOC) and currently is incarcerated at the Sterling Correctional Facility in

Sterling, Colorado. Mr. Pace has filed a pro se Application for a Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2254 challenging the validity of his convictions in Case Nos.

02CR185 and 02CR186 in the District Court for the City and County of Denver. 

In an order entered on October 24, 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 October 31, 2011, Respondents

filed a Pre-Answer Response. Mr. Pace submitted a Reply on November 21, 2011.

The Court must construe liberally the Application filed by Mr. Pace because he is

not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);

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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 dismiss the action as barred by the one-year limitation

period.

I. Background and State Court Proceedings

Following a jury trial in two consolidated cases on October 23, 2002, Mr. Pace

was found guilty of two counts each of first degree murder, felony murder, and sexual

assault. Pre-Answer Resp. Ex. A at p. 9 (State Register of Actions). The trial court

subsequently sentenced Mr. Pace to life without parole in the Department of

Corrections. Id.

Mr. Pace then filed a direct appeal to the Colorado Court of Appeals. Id. The

appellate court affirmed his convictions on May 5, 2005. See People v. Pace, No.

02CA2379 (Colo. App. May 5, 2005) (unpublished opinion). Mr. Pace petitioned the

Colorado Supreme Court for certiorari review, which was denied on October 3, 2005. 

Pre-Answer Resp. at Ex. A, p. 8. The mandate issued on October 12, 2005. Id. at 3.

On March 19 and 21, 2008, Mr. Pace filed post-conviction motions pursuant to

Colorado Rule of Criminal Procedure Rule 35(c). Pre-Answer Resp. at Ex. A, p. 7. The

trial court denied the motions on September 5, 2008. Id.

Mr. Pace filed an additional Rule 35(c) motion on May 18, 2009. Id. The trial

court denied the motion on January 7, 2010. Id. Mr. Pace filed an appeal, and the

Colorado Court of Appeals affirmed the trial court on March 24, 2011. See People v.

Pace, No. 10CA0368 (Colo. App. March 24, 2011) (unpublished opinion). 

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Mr. Pace then filed the instant action, which was received by the Court on

September 29, 2011. In the Application, Mr. Pace asserts twenty-six claims. 

II. Timeliness

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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1 The ninetieth day fell on a Sunday, January 1, 2006. Therefore, the filing deadline extends until

January 2, 2006. See C.A.R. 26(a).

4

In order to apply the one-year limitation period, the Court first must determine

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

Because Mr. Pace filed a direct appeal, his conviction became final ninety days after

October 3, 2005, the date the Colorado Supreme Court denied certiorari review. See

28 U.S.C. § 2244(d)(1)(A). Therefore, the Court finds that Mr. Pace’s conviction

became final on January 2, 2006.1 As such, the one-year statute of limitations began to

run on January 3, 2006, 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. Pace’s state court postconviction 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:

(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). 

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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. Pace’s state court action between January

3, 2006, and March 19, 2008. See Pre-Answer Resp. at Ex. A, p. 7; Ex. B, p. 6. 

Therefore, the statute of limitations began to run on January 3, 2006, and ran un-tolled

until it expired on January 3, 2007. Because the one-year limitation period expired

before Mr. Pace filed his first post-conviction motion on March 19, 2008, that 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). The Court finds that the limitation period expired

approximately four years and eight months prior to the filing of the application on

September 29, 2011. Therefore, the instant action is time-barred in the absence of

some other reason to toll the one-year limitation period.

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III. Equitable Tolling

The one-year limitation period in 28 U.S.C. § 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 appropriate only if the inmate pursues his claims diligently. See

Miller, 141 F.3d at 978. Finally, Mr. Pace bears the burden of demonstrating that

equitable tolling is appropriate in this action. See id. at 977. 

Mr. Pace argues that he is entitled to equitable tolling because his attorney told

him that the attorney would “file for a new trial” in May of 2006 but failed to do so. Reply

at 4. It is true that particularly egregious misconduct, such as repeated, deceitful

assurances that a habeas petition would soon be filed, may entitle a habeas applicant to

equitable tolling. See Fleming v. Evans, 481 F.3d 1249, 1256-57 (10th Cir. 2007); see

also Holland, 130 S.Ct. at 2564 (stating that the one-year limitation period is subject to

equitable tolling when “serious instances of attorney misconduct” have occurred). 

However, the Fleming court also recognized that “clients, even if incarcerated, must

‘vigilantly oversee,’ and ultimately bear responsibility for their attorneys’ actions or

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failures.” Id. at 1255-56 (quoting Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir.

2003)). In this case, Mr. Pace does not allege that his counsel was assisting him in

preparing a habeas petition or that his counsel repeatedly assured him that a habeas

petition would be filed on his behalf. 

Further, federal case law requires that Mr. Pace “allege with specificity the steps

he took to diligently pursue his federal claims” in order to meet the diligence

requirement associated with equitable tolling. Yang v. Archuleta, 525 F.3d 925, 930

(10th Cir. 2008) (internal quotation marks omitted). Mr. Pace fails to detail any steps

that he took to “diligently pursue his federal claims”. Id. Moreover, the fact that Mr.

Pace’s attorney was contemplating filing for a new trial in 2006 does not explain Mr.

Pace’s complete failure to file any motions in his criminal case until March 19, 2008, nor

his decision to delay the filing of his habeas application until September 29, 2011.

IV. Conclusion

Having reviewed Mr. Pace’s allegations, the Court finds that he has failed to

assert any basis for equitable tolling. Therefore, under 28 U.S.C. § 2244(d), he is timebarred from filing a federal habeas corpus action in this Court. Because the action

clearly is time-barred, the Court will refrain from addressing whether Mr. Pace has

exhausted his state court remedies. 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). 

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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 8th day of December , 2011.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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