F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 23 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES ARLEN CHILDS,
Petitioner-Appellant,
v. No. 99-1367
ARISTEDES W. ZAVARAS, (D.C. No. 98-WM-2148)
Executive Director/Colo; HOYT A. (D.Colo.)
BRILL, PCF; ATTORNEY GENERAL
OF THE STATE OF COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
James Childs, a Colorado state prisoner appearing pro se, seeks a certificate
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of appealability to appeal the district court’s denial of his 28 U.S.C. § 2254
petition for writ of habeas corpus. Because we conclude Childs has failed to
make “a substantial showing of the denial of a constitutional right,” 28 U.S.C. §
2253(c)(2), we deny his request for a certificate of appealability and dismiss the
appeal.
I.
In 1987, Childs was convicted in Colorado state court of second-degree
burglary and second-degree sexual assault, and sentenced to consecutive terms of
imprisonment of thirty-two and sixteen years. Childs filed a direct appeal
claiming the trial court abused its sentencing discretion under Colorado law. On
October 19, 1989, the Colorado Court of Appeals rejected Childs’ arguments and
affirmed the sentences. Although Childs filed a petition for certiorari with the
Colorado Supreme Court, the petition was stricken on September 27, 1990, for
failure to comply with applicable procedural rules.
Childs first sought post-conviction relief in state court in 1991 when he
filed a motion pursuant to Colo. R. Crim. P. 35, arguing that (1) his convictions
violated the constitutional prohibition against double jeopardy in that one offense
was the lesser included offense of the other, and (2) the consecutive sentences
imposed upon him violated Colo. Rev. Stat. § 18-1-408(3), which prohibits
consecutive sentences for offenses that “are supported by identical evidence.”
2
The state district court denied Childs’ motion on April 13, 1992. Childs appealed
to the Colorado Court of Appeals, which affirmed the district court’s decision on
February 18, 1993. The Colorado Supreme Court denied Childs’ petition for
certiorari on August 23, 1993.
Childs filed a second Rule 35 motion in state district court in 1993, arguing
that (1) the trial court abused its sentencing discretion, and (2) the imposition of
consecutive sentences violated Colorado law. The state district court denied
Childs’ motion on the merits on October 31, 1995. Childs’ appeal of that decision
was dismissed by the Colorado Court of Appeals on May 28, 1996, and the
mandate issued on June 13, 1996.
Childs filed a third Rule 35 motion in state district court on May 8, 1997,
arguing that his sentences were imposed in violation of his due process rights
because the trial court (1) failed to sentence him based on accurate information,
and (2) failed to consider the factors set forth in Colo. Rev. Stat. § 18-1-105(1)(b)
and (9)(a) prior to imposing a sentence in the presumptive range. The state
district court summarily denied Childs’ motion, concluding it lacked “any
arguable merit.” Childs appealed to the Colorado Court of Appeals, which
affirmed the denial of Childs’ motion on July 23, 1998, and the mandate issued on
August 13, 1998.
Childs filed his federal habeas petition on October 6, 1998, asserting that
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(1) his convictions and sentences violated the Double Jeopardy Clause of the Fifth
Amendment, (2) consecutive sentences for second degree burglary and second
degree sexual assault were not authorized by the Colorado legislature, and (3) his
sentences were imposed in violation of his due process rights because they were
based on “inaccurate information.” The case was referred to a magistrate judge
who, in a thorough report and recommendation, concluded the case was both
untimely and without merit. The district court adopted the recommendation and
dismissed the case. Childs’ motion for relief from judgment was denied. Childs
subsequently filed a notice of appeal, a request for a certificate of appealability
(COA), and a motion for leave to proceed in forma pauperis on appeal. The
district court denied the request for a COA and the motion for leave to proceed in
forma pauperis on appeal. Childs has renewed those requests in this court.
II.
On April 24, 1996, Congress amended what had been “the long-standing
prior practice in habeas corpus litigation that gave a [state] prisoner virtually
unlimited amounts of time to file a habeas petition in federal court,” and
“established a one-year period of limitations for [federal] habeas petitions.”
Hoggro v. Boone, 150 F.3d 1223, 1224 (10 th Cir. 1998) (citing 28 U.S.C.
§ 2244(d)(1)). By statute, the one-year period of limitations generally begins
running from “the date on which the judgment became final by the conclusion of
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direct review or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). For prisoners whose convictions became final prior to April 24,
1996, however, the new “one-year statute of limitations does not begin to run
until April 24, 1996.” Hoggro, 150 F.3d at 1225; United States v. Simmonds, 111
F.3d 737, 744-46 (10 th Cir. 1997).
The one-year period of limitations can be tolled by ongoing post-conviction
litigation in state court. See Hoggro, 150 F.3d at 1226. In particular, 28 U.S.C. §
2244(d)(2) provides “[t]he time during which a properly filed application for
State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward” the one-year period of
limitation. We have also indicated the one-year period of limitations “may be
subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10 th Cir.), cert.
denied, 119 S.Ct. 210 (1998).
The district court in this case concluded, and we agree, that Childs’ federal
habeas petition was untimely. Because Childs’ convictions and sentences became
final well prior to the enactment of the AEDPA, his one-year period of limitations
for filing a federal habeas petition began running on April 24, 1996. From that
date through June 13, 1996, the limitations period was tolled due to the pendency
of Childs’ second application for post-conviction relief. The limitations period
then ran unabated until May 8, 1997, when Childs filed his third application for
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post-conviction relief in state court. The limitations period was also tolled during
the pendency of his third application, from May 8, 1997, through August 13,
1998. The limitations period began running again and expired on September 21,
1998 1, approximately seventeen days prior to the filing of Childs’ federal habeas
petition.
We further agree with the magistrate judge that, because of deficiencies in
the record, the “mailbox rule” announced in Houston v. Lack, 487 U.S. 266, 270-
72 (1988), cannot save Childs’ petition. As the magistrate court noted, Childs’
third application for post-conviction relief bears a certificate of service stating
that it was mailed on April 23, 1997. Assuming, arguendo, that was the date
Childs in fact placed his application in the prison mail system, the AEDPA statute
of limitations would be tolled an additional fifteen days (two days short of the
time needed to make Childs’ federal habeas petition timely). However, there is
no evidence in the record and Childs has made no allegations regarding when he
placed his federal habeas petition in the prison mail system. Thus, we are unable
to apply the “mailbox rule” to the filing of that pleading.
Even assuming, arguendo, that Childs placed his federal habeas petition in
the prison mail system two or more days prior to the date it was actually filed in
1
Although the one-year period actually ended on Saturday, September 19,
1998, Childs would have had until the following Monday, September 21, 1998, to
file his petition.
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federal court, and that application of the “mailbox rule” would thus render his
petition timely, we find no merit to the arguments asserted in his petition. It is
abundantly clear, as the Colorado Court of Appeals concluded in rejecting Childs’
first application for post-conviction relief, that second-degree burglary and
second-degree sexual assault, as defined under Colorado law, are not the “same
offense” for purposes of the Double Jeopardy Clause. In particular, each offense
“requires proof of a fact which the other does not.” 2 Blockburger v. United
States, 284 U.S. 299, 304 (1932); see also Lucero v. Kerby, 133 F.3d 1299, 1316
(10th Cir.) (asserting that federal court in habeas corpus proceeding should defer
to state court’s determination of separate offenses for double jeopardy purposes),
cert. denied, 523 U.S. 1110 (1998). Childs’ second claim, that consecutive
sentencing for his offenses was not authorized by the Colorado legislature, asserts
only a violation of state law and does not merit federal habeas relief. See
2
The magistrate judge, in her report and recommendation, outlined the
essential elements of each offense:
The elements of second-degree burglary (a class 3 felony) are (a)
knowingly (b) breaking an entrance into or entering or remaining
unlawfully (c) in a dwelling (d) with intent to commit therein a crime
against person or property. COLO. REV. STAT. § 18-4-203. The
elements of second-degree sexual assault (a class 4 felony) are (a)
knowingly (b) inflicting sexual intrusion or sexual penetration, and
(c) causing the submission of the victim by means of sufficient
consequence reasonably calculated to cause submission against the
victim’s will. COLO. REV. STAT. § 18-3-403.
ROA, Doc. 23, at 14.
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Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999) (noting that federal
habeas review “is limited to violations of constitutional rights”). Childs’ claim
that his sentences were imposed in violation of his due process rights because
they were based on “inaccurate information” is procedurally barred. In particular,
Childs first presented this argument, couched only as a violation of state law, in
his direct appeal. He reasserted the same argument in his second application for
post-conviction relief. Only in his third application for post-conviction relief did
he attempt to couch it as a constitutional claim. The Colorado Court of Appeals
concluded Childs’ constitutional argument was procedurally barred because it was
both untimely under Colo. R. Crim. P. 35(b), and an attempt to relitigate an issue
that had previously been raised and resolved in his direct appeal. In light of this
disposition, and because Childs has failed to demonstrate cause and prejudice or a
fundamental miscarriage of justice, we conclude the issue is procedurally barred
for purposes of federal habeas review. See Coleman v. Thompson, 501 U.S. 722,
750 (1991) (“In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adequate state procedural rule,
federal habeas review of the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.”).
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Childs’ motion to compel the court to exercise its authority is GRANTED.
We GRANT the motion to proceed in forma pauperis, DENY the application for
certificate of appealability, and DISMISS the appeal. The mandate shall issue
forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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