Burks v. Raemisch, 680 F. App'x 686

Background

Albert Burks was convicted in Colorado state court (2001) of sexual assault on a child and enticement; sentenced to consecutive indeterminate terms originally set as 8 years to life each. Colorado appellate review and certiorari denial concluded in 2004.
Burks filed a state post-conviction (PCR) petition in April 2005 raising ineffective-assistance claims; the Colorado courts ultimately remanded for one evidentiary hearing but otherwise rejected most claims; state supreme court denied review in July 2014.
While PCR proceedings were pending, the state court sua sponte found Burks’s original minimum terms improper and resentenced him in November 2014 to reduced minima (4 years to life per count).
Burks filed a federal habeas petition under 28 U.S.C. § 2254 on November 16, 2015, asserting (1) SOLSA is unconstitutional and (2) trial counsel was ineffective for not subpoenaing witnesses. The State argued the petition was time-barred under § 2244(d)(1)(A).
The district court dismissed the petition as untimely; Burks sought a certificate of appealability (COA). The Tenth Circuit granted a COA (because the issue was debatable) but affirmed dismissal, holding the limitations period was not restarted by the November 2014 resentencing as to claims that do not challenge the resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a resentencing restarts the § 2244(d)(1)(A) one-year limitations period for habeas claims that challenge the original conviction rather than the resentencing	Burks: resentencing corrected a void/illegal sentence so there was no "final" judgment until resentencing; thus the § 2244 clock began on the resentencing date	State: § 2244(d)(1) is applied claim-by-claim; claims that do not challenge the resentencing are governed by the original judgment’s finality date	Court: Apply § 2244(d)(1) claim-by-claim; resentencing did not restart the clock for claims attacking the original conviction; petition untimely and dismissed
Whether Magwood requires treating resentencing as a new judgment that can revive unrelated time-barred claims	Burks: relied on argument that resentencing created a new judgment freeing him to raise claims in federal court	State: Magwood does not address resurrecting previously time-barred claims that challenge an undisturbed conviction	Court: Magwood is distinguishable; it addresses successive petitions under § 2244(b) and did not decide whether resentencing permits belated attacks on the original conviction; it does not support Burks
Whether equitable or statutory tolling saved Burks’s filing	Burks: did not press tolling from resentencing; argued later that he could not have raised SOLSA earlier without state-court presentation	State: statutory tolling from PCR and any resentencing appeal would not extend time enough; no extraordinary circumstances for equitable tolling	Court: Statutory tolling did not make petition timely; district court correctly denied equitable tolling; petition remains untimely
Whether a COA should issue on the procedural-timeliness ruling	Burks: the timeliness issue is debatable and merits review	State: not contested in detail	Court: Granted COA because the dispositive timeliness issue is debatable, but affirmed dismissal on the merits

Key Cases Cited

Miller-El v. Cockrell, 537 U.S. 322 (COA standard for habeas appeals)
Slack v. McDaniel, 529 U.S. 473 (standards for granting COA when dismissal is on procedural grounds)
Prendergast v. Clements, 699 F.3d 1182 (10th Cir. 2012) (apply § 2244(d)(1) claim-by-claim; resentencing does not revive unrelated time-barred claims)
Magwood v. Patterson, 561 U.S. 320 (distinguishing judgments for purposes of § 2244(b); did not resolve whether resentencing allows revival of unrelated claims)
Locke v. Saffle, 237 F.3d 1269 (10th Cir. 2001) (finality date for conviction tied to certiorari timeline)
Fielder v. Varner, 379 F.3d 113 (3d Cir. 2004) (adopted reasoning for claim-by-claim application of limitations)