FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT February 24, 2017
Elisabeth A. Shumaker
Clerk of Court
ALBERT BURKS,
Petitioner - Appellant,
v. No. 16-1247
(D.C. No. 1:15-CV-02520-LTB)
RICK RAEMISCH, Executive Director, (D. Colo.)
Colorado Department of Corrections;
RANDY LIND, Warden, Sterling
Correctional Facility; CYNTHIA
COFFMAN, Attorney General, State of
Colorado,
Respondents - Appellees.
ORDER AND JUDGMENT*
Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
*
Burks has waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
An appeal may be taken from matters decided in a resentencing and the 28 U.S.C.
§ 2254 habeas statute of limitations clock restarts as to those matters. But what of other
matters originally decided and put to rest through direct appeal, state post-conviction
remedies and the running of the time allotted for federal habeas review? Are long-settled
matters, untouched by the resentencing, somehow resurrected, Lazarus like, for
reconsideration? More particularly, is a new breath of habeas life constitutionally
required in such cases? An emphatic and tautological answer—NO—might, logically,
seem to be the order of the day, but, alas, it is not that simple. Some cases seem to have
said yes, making the question one for which a certificate of appealability (COA) should
issue.
Albert Burks, a Colorado state prisoner,1 wants to appeal from the dismissal of his
time-barred 28 U.S.C. § 2254 habeas petition. A COA is a jurisdictional prerequisite to
our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). We will issue one “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court’s
ruling rests on procedural grounds, Burks must show both that “jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
1
Burks was represented by counsel in the district court and that representation
continues on appeal.
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The district court denied Burks’ request for a COA. He has here renewed that
request and has fully briefed the dispositive issue; no response from the State is
necessary. Because that issue is debatable, the requested COA must issue. After careful
review, we affirm the dismissal.
I. Background
The issue here is complicated by a long and protracted history. In 2001, a jury
convicted Burks of (1) sexual assault on a child and (2) enticement of a child. He was
sentenced to two consecutive terms of 8 years to life imprisonment. The Colorado Court
of Appeals affirmed his convictions and sentences; the Colorado Supreme Court denied
certiorari review on June 21, 2004.
On April 25, 2005, Burks filed a state petition for post-conviction relief raising
numerous ineffective assistance of counsel claims. The trial court initially dismissed the
petition as untimely. Burks appealed. The Colorado Court of Appeals decided the
petition was timely but nevertheless concluded most of his ineffective assistance of
counsel claims lacked merit. However, it reversed and remanded to the trial court for an
evidentiary hearing on one ineffective assistance claim: failure to subpoena and call
certain witnesses at trial. On remand, the trial court held a hearing and denied relief. The
appellate court affirmed and the Colorado Supreme Court denied certiorari review on
July 7, 2014, more than nine years after the petition was filed.2
2
In his application for a COA, Burks “respectfully submits that since the state
trial court ruled in his favor on the merits of his claim of ineffective assistance of counsel,
and the underlying merits of that ruling [were] not disturbed by the Colorado Appellate
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In June 2013, while his state post-conviction proceedings were pending, the
Colorado Department of Corrections (CDOC) and the state trial court, sua sponte, raised
questions about the propriety of his sentences. After an evidentiary hearing, the state trial
court concluded his minimum sentences were improper and reduced them to two
consecutive terms of four years to life (a total of 8 years to life), down from two
consecutive terms of 8 years to life (a total of 16 years to life). That occurred on
November 14, 2014.3 So, as it stood at the time of resentencing, the state appellate court
had rejected Burks’ post-conviction claims and the state supreme court had denied
review. Burks did not seek review of his resentencing, probably because he fortuitously
Courts, then there can be no debate as to whether his Application stated a valid claim of
the denial of his Sixth Amendment right to counsel.” (Appellant’s Opening Br. at 9.
(emphasis added.) He misstates the record—the state trial court never ruled in his favor
on any ineffective assistance claim.
3
The Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA)
generally requires sex offenders to be sentenced “for an indeterminate term of at least the
minimum of the presumptive range specified in [§] 18-1.3-401 for the level of offense
committed and a maximum of the sex offender’s natural life.” Colo. Rev. Stat. § 18-1.3-
1004(1)(a). Although the statute’s plain terms place no upper limit or cap on the
minimum sentence, the Colorado Supreme Court interpreted it to require one: “[T]he Act
is properly construed to mandate an indeterminate sentence with a lower term of not more
than twice the maximum sentence in the presumptive range for the class of felony of
which the defendant stands convicted . . . .” Vensor v. People, 151 P.3d 1274, 1275
(Colo. 2007) (emphasis added). Burks’ offenses are class four felonies. Colo. Rev. Stat.
§ 18-1.3-401(1)(a)(V)(A). The presumptive sentencing range for a class four felony is a
minimum sentence of 2 years imprisonment and a maximum sentence of 6 years in
prison. Id. At first blush, it seems Burks’ original minimum sentence of 8 years for each
count complies with Vensor because it does not exceed twice the presumptive maximum
(12 years). But a closer reading of Vensor and § 18-1.3-401 reveals a sentence of twice
the presumptive maximum is allowed only upon the finding of “extraordinary . . .
aggravating circumstances.” Colo. Rev. Stat. § 18-1.3-401(6). Although not clear from
the record, we presume the sentencing judge found no such circumstances. That being
the case, Burks’ minimum sentence could not exceed 6 years for each count (12 years
total). On resentencing, his minimum sentence became 4 years per count (8 years total).
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received a reduced sentence without even asking for one.
On November 16, 2015, Burks filed his § 2254 petition raising two claims: (1)
Colorado’s Sex Offender Lifetime Supervision Act of 1998 (SOLSA) is unconstitutional
on its face and as applied to him and (2) trial counsel was ineffective for failing to
subpoena and call certain witnesses at trial. The State argued, inter alia, the petition was
untimely.
The district judge agreed with the State. He concluded Burks’ convictions became
final and the one-year statute of limitations began to run on September 20, 2004, when
the time to seek certiorari review in the United States Supreme Court expired.4 28 U.S.C.
§ 2244(d)(1)(A). The limitations period ran from September 20, 2004, until he filed his
state petition for post-conviction relief on April 25, 2005 (216 days). His state petition
tolled the limitations period until July 7, 2014, when the Colorado Supreme Court denied
certiorari review. 28 U.S.C. § 2244(d)(2). He thus had 149 days from July 7, 2014, or
until December 3, 2014, to file his § 2254 petition. He did not file it until November 16,
2015.
4
See Rule 13.1, Rules of the United States Supreme Court (requiring certiorari
petitions to be filed within 90 days after entry of judgment); see also Locke v. Saffle, 237
F.3d 1269, 1273 (10th Cir. 2001) (holding “a petitioner’s conviction is not final and the
one-year limitation period for filing a federal habeas petition does not begin to run
until—following a decision by the state court of last resort—after the United States
Supreme Court has denied review, or, if no petition for certiorari is filed, after the time
for filing a petition for certiorari with the Supreme Court has passed”) (quotation marks
omitted).
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II. Discussion
Burks does not claim the statute of limitations, 28 U.S.C. § 2244(d)(1), was tolled
during his resentencing;5 he is much more ambitious. He claims it did not begin to run
under 28 U.S.C. § 2244(d)(1)(A)6 until November 14, 2014, when he was resentenced:
“The resentencing [resulted] because the original sentence was a void illegal sentence
that had no force or effect pursuant to state law. Mr. Burks did not even have a legal
sentence until November 14 or 17, 2014,7 that could even trigger the 28 U.S.C. §
5
Had he argued for statutory tolling under 28 U.S.C. § 2244(d)(2), it would have
been in vain. Even assuming a sua sponte resentencing constitutes a “properly filed
application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim” under § 2244(d)(2) (emphasis added), at best the limitations
period would have been tolled until January 2015, when the 49-day time to appeal from
the resentencing expired, see Colo. R. App. P. 4 (b), (c). He then would have had 149
days from that date (until June 2015) in which to file his habeas petition. His November
2015 petition would still be untimely.
The district judge found no basis for equitable tolling of the limitations period
“because Mr. Burks fails to identify the existence of any extraordinary circumstances
beyond his control that prevented him from filing a timely application.” (Appellant’s
App’x at 90.) Burks does not contest this ruling in his COA application.
6
Section 2244(d)(1)(A) provides:
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[.]
7
The trial judge issued his oral resentencing decision on November 14, 2014; he
entered an amended mittimus on November 17, 2014. Assuming the limitations period
commenced on November 14, 2014, when the trial court orally amended his sentence,
Burks contends his habeas petition on November 16, 2015, is timely because November
14, 2015, was a Saturday. But, as we explain, it doesn’t matter—his resentencing did not
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2244(d)(1)(A) one year clock.” (Appellant’s Opening Br. at 13.) The district judge
disagreed because neither of Burks’ § 2254 claims challenged his new sentence. See
Vallez v. Hartley, 305 F. App’x 505, 508 (10th Cir. 2008) (unpublished) (“We are aware
of no authority suggesting that resentencing can restart the limitations period when the
prisoner seeks to bring only claims challenging his original conviction . . . .”). The judge
was right.
In Prendergast v. Clements, Prendergast was convicted in Colorado state court
of securities fraud and theft and sentenced to probation. 699 F.3d 1182, 1183 (10th
Cir. 2012). His convictions became final in 2004. Id. His probation was revoked in
2009 when he violated its terms; he was resentenced to a term of imprisonment. Id.
He filed a § 2254 petition raising five claims—two attacking the constitutionality of
his resentencing and three challenging his original conviction. Id. at 1184. The
district judge dismissed the two claims relating to his resentencing for failure to
exhaust and dismissed as untimely the three claims relating to his original conviction.
Id. at 1184. We affirmed. Id. Important here is our discussion on the timeliness of
his claims relating to his original conviction.
Prendergast claimed that “because he timely raised claims on his 2009
resentencing, the attacks on his original conviction [were] somehow resurrected.” Id.
at 1186. In other words, his timely claims made the untimely claims once again
timely. Id. at 1186. He focused on the term “application” in § 2244(d)(1). Id.
start anew the limitations period for the claims he raises.
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According to him, we must look to whether the § 2254 application is timely, not the
individual claims within the application. Id. Not so, we said.
We concluded “§ 2244(d)(1) should be applied on a claim-by-claim basis.”8
Id. at 1187. A contrary rule would be nonsensical—“a late-accruing federal habeas
claim would open the door for . . . other claims that had become time-barred years
earlier, well after the time when the evidence to consider such other claims might
have been discarded.” Id. (quotation marks omitted). And such a rule would
“create[] a perverse incentive for potential habeas petitioners with otherwise time-
barred constitutional claims to violate the terms of their sentence”—“a petitioner who
had failed to raise now time-barred claims would have reason to commit some
infraction, incur a resentencing, allege a constitutional violation in the resentencing,
and resuscitate the time-barred claims.” Id.; see also Carrillo v. Zupan, 626 F. App’x
780, 781-82 (10th Cir. 2015) (unpublished) (relying on Prendergast and concluding
Carrillo’s resentencing did not restart the limitations clock for his § 2254 claims because
those claims challenged only his original conviction, not his corrected sentence).
We recognize this case is factually different. Prendergast was resentenced due
to the revocation of his probation. Burks was not resentenced due to any misconduct
on his part. Rather, a Colorado court decided his original sentence was erroneous and
corrected the error, much to Burks’ benefit and without his input. But, for our purposes,
this is a distinction without a difference. The point of Prendergast is that we apply §
8
In doing so, we adopted the opinion of then-Judge Alito in Fielder v. Varner, 379
F.3d 113 (3d Cir. 2004).
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2244(d)(1) on a claim-by-claim basis. In this case, neither of the claims Burks seeks to
raise in his § 2254 petition pertains to his resentencing. The ineffective assistance of
counsel claim concerns counsel’s performance in the original trial court proceedings and
his SOLSA claim challenges the constitutionality of the Act’s requirement that sex
offenders receive a maximum term of life imprisonment. His resentencing concerned the
minimum term required. Because his § 2254 claims do not arise out of his resentencing,
it did not renew the limitations clock as to those claims.
Vallez is, at least factually, more on point. Vallez was originally sentenced to
mandatory parole. 305 F. App’x at 506. He filed a motion to modify his sentence to
discretionary parole with the state court. Id. The state court concluded his mandatory
parole sentence violated state law and imposed discretionary parole instead. Id. In his
federal habeas proceedings, Vallez argued the one-year statute of limitations restarted
when the modified sentence became final on April 2, 2007, the date the Colorado
Supreme Court declined to review it. Id. at 507-08. We concluded that while that
argument may have some appeal where the petitioner seeks “to bring at least some claim
challenging the resentencing,” it crumbles when the only claims a petitioner seeks to
bring do not challenge the resentencing. Id. at 508. The same result ensues here.
The Supreme Court’s decision in Magwood v. Patterson does not speak to the
issue before us. 561 U.S. 320 (2010). Magwood was found guilty of murder and was
sentenced to death. Id. at 324. He ultimately obtained relief on his sentence in § 2254
proceedings. Id. at 326. But the relief was short-lived; the state trial court resentenced
him to death. Id. He then filed a second-in-time § 2254 petition challenging his new
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death sentence. Id. at 328. The question presented was whether this second-in-time §
2254 petition was a “second or successive” petition under 28 U.S.C. § 2244(b) such that
he needed to obtain permission from the federal appellate court to file it. Id. at 330.
The Supreme Court concluded the limitations imposed by § 2244(b) apply only to
a “‘habeas corpus application under § 2254,’ that is, ‘an application for a writ of habeas
corpus on behalf of a person in custody pursuant to the judgment of a State court.’” Id. at
332 (quoting § 2244(b), § 2254(b)(1)). Thus, “the phrase ‘second or successive’ must be
interpreted with respect to the judgment challenged.” Id. at 333. Because Magwood’s
second-in-time § 2254 petition challenged a new judgment for the first time, it was not
“second or successive” under § 2244(b). Id. at 323-24. In so concluding, the Supreme
Court rejected the State’s argument that § 2244(b) should be applied on a claim-by-claim
basis, which would have required courts to look at each claim raised in the petition and
decide whether the petitioner “had an opportunity to raise it in his first application, but
did not do so.” Id. at 331-32.
Most importantly, however, the Supreme Court declined to decide whether “a
petitioner who obtains a conditional writ as to his sentence [would be allowed] to file a
subsequent [§ 2254] application challenging not only his resulting, new sentence, but also
his original, undisturbed conviction.” Id. at 342. That is because Magwood had not
attempted to challenge his underlying conviction. In this case, Burks challenges only his
original, undisturbed conviction and maximum sentence, not his newly reduced minimum
sentence (the only post-conviction relief ever granted). Magwood does not address this
situation.
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We recognize that at least one other circuit has extended Magwood to §
2244(d)(1) and concluded that a resentencing constitutes a new judgment that resets
the one-year limitations period under § 2241(d)(1)(A) for claims challenging the
resentencing and for claims, even untimely ones, challenging the underlying
judgment. See Crangle v. Kelly, 838 F.3d 673, 677-78 (6th Cir. 2016). But absent en
banc reconsideration or an intervening Supreme Court decision, we are bound to
follow Prendergast. In re Smith, 10 F.3d 723, 724 (10th Cir. 1993). Moreover, the
Sixth Circuit limited its holding—only those resentencings that constitute a “new,
worse-than-before sentence” reset the limitations clock in § 2244(d)(1). The
resentencing in that case imposed five-years of post-release control but the original
sentence did not say anything about post-release control. The court decided in these
circumstances the limitations clock ran from the resentencing. Here, Burks’
resentencing resulted in a more favorable sentence.
In sum, the 2014 resentencing did not renew the limitations period for Burks’ §
2254 claims. Rather, the statute of limitations expired on these claims on December 3,
2014, rendering his November 16, 2015 petition untimely.9
9
Burks argues he could not have raised his SOLSA claim in federal court until he
sought the same relief in state court, otherwise the claim would be dismissed for failure to
exhaust, 28 U.S.C. § 2254(b)(1)(A). We presume he means he had to first raise it at his
resentencing and therefore he had to await resentencing prior to bringing the claim to
federal court. He never raised it at resentencing, but he did raise it on direct appeal.
That, however, was too little, too late; the Colorado Court of Appeals refused to consider
it because he had not first raised it with the trial court. See People v. Watkins, 83 P.3d
1182, 1187 (Colo. App. 2003) (“Because defendant did not raise this constitutional claim
in the trial court, we decline to address it here.”) (collecting cases). “[F]ederal courts
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We GRANT a COA and AFFIRM the district judge’s dismissal of Burks’ habeas
petition as time-barred.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
generally do not review issues that have been defaulted in state court on an independent
and adequate state procedural ground, unless the default is excused through a showing of
cause and actual prejudice or a fundamental miscarriage of justice.” Jackson v. Shanks,
143 F.3d 1313, 1317 (10th Cir. 1998). The district judge concluded Colorado’s
prohibition against raising constitutional claims for the first time on appeal to be an
independent and adequate state procedural ground and Burks did not argue otherwise. He
also decided Burks had failed to demonstrate cause and prejudice or that a failure to
consider the claim would result in a fundamental miscarriage of justice. Burks does not
challenge this ruling in his COA application. It provides yet another reason why his
SOLSA claim was properly dismissed.
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