No. 1:17-CV-02155-LTB) (D. Colo.)
LUCERO, HARTZ, and McHUGH, Circuit Judges.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
L HARTZ CIRCUIT JUDGE
Shane D. Burden seeks a certificate of appealability (COA) to
appeal the denial by the United States District Court for the
District of Colorado of his application for relief under 28
U.S.C. § 2254. See 28 U.S.C. §
2253(c)(1)(A) (requiring COA to appeal final order in a
habeas proceeding in which the detention complained of arises
out of process issued by a state court). We decline to grant
a COA and dismiss the appeal because the district court
properly determined that the application was untimely.
will issue "only if the applicant has made a substantial
showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). This standard requires "a
demonstration that . . . includes showing that reasonable
jurists could debate whether (or, for that matter, agree
that) the [application] should have been resolved in a
different manner or that the issues presented were adequate
to deserve encouragement to proceed further." Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks omitted). In other words, the applicant must
show that the district court's resolution of the
constitutional claim was either "debatable or
wrong." Id. "Where a plain procedural bar
is present and the district court is correct to invoke it to
dispose of the case, a reasonable jurist could not conclude
either that the district court erred in dismissing the
[application] or that the [applicant] should be allowed to
proceed further." Id.
the Antiterrorism and Effective Death Penalty Act (AEDPA), an
applicant in custody pursuant to a state-court judgment has
one year after his conviction becomes final to seek relief
under § 2254. See 28 U.S.C. § 2244
(d)(1)(A). The time limit may be tolled while "a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending." Id. § 2244 (d)(2).
filed his § 2254 application on November 2, 2017. The
application challenges his convictions and sentences in two
Colorado state cases: Jefferson County District Court Case
No. 04-CR-0511 and Jefferson County District Court Case No.
04-CR-2410. On June 20, 2005, he was sentenced in both cases
to a 24-year term of imprisonment.
04-CR-2410, Applicant did not appeal his conviction and he
did not seek state postconviction relief until July 6, 2007,
more than two years after he was sentenced. Thus, his §
2254 application was clearly untimely with respect to that
conviction. Even though state postconviction proceedings can
toll the one-year limitations period, that period had expired
well before he sought state postconviction relief from that
timeline for No. 04-CR-0511 is more involved. Applicant
appealed that conviction; so the AEDPA limitations period did
not commence until the Colorado Supreme Court denied his
petition for certiorari in October 2008 and the time expired
for him to seek review in the United States Supreme Court.
Meanwhile, however, on July 6, 2007, Applicant had filed a
motion for postconviction relief in state court. That
proceeding was pending for almost seven years, tolling the
AEDPA limitations period all the while. The state trial court
ultimately denied the postconviction motion, the Colorado
Court of Appeals affirmed, and on April 17, 2014, the state
high court denied Applicant's petition for certiorari.
Only then did the limitations clock begin to tick.
days later, on August 13, 2014, Applicant filed a second pro
se motion for state postconviction relief in No. 0511. The
state district court denied the motion on October 21, 2014.
Applicant did not appeal within the 49-day period permitted
by state law. See Colo.App. R. 4 ("the notice
of appeal . . . shall be filed with the appellate court . . .
within 49 days of the date of the entry of the judgment,
decree, or order from which the party appeals").
one-year limitation period therefore expired in August 2015.
Although Applicant sought relief through a petition for writ
of mandamus in the Colorado Court of Appeals in April 2016,
the limitations period had already expired by that time, so
we need not resolve whether such a petition would toll the
appears to rely for tolling on a pleading labeled "reply
brief" that he filed in the second postconviction
proceeding on November 5, 2014, sixteen days after the state
trial court had denied relief. But not every postconviction
pleading filed in state court can toll the limitations
period. See 28 U.S.C.A. § 2244(d)(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." (emphasis added)); Artuz v.
Bennett, 531 U.S. 4, 8 (2000) ("an application is
'properly filed' when its delivery and acceptance are
in compliance with the applicable laws and rules governing
filings. These usually prescribe, for example, the form of
the document [and] the time limits upon its delivery. . .
."). Applicant does not provide any reason why the
"reply brief" was a proper pleading for tolling
purposes, and we can come up with no reason on our own.
no reasonable jurist could debate the district court's
decision that Applicant's § 2254 application was
DENY a COA and DISMISS the
appeal. We also DENY Applicant's request
to proceed in forma pauperis, and DENY ...