Daniel v. Trani et al

Filing 16

ORDER of Dismissal. The Application is denied and the action is dismissed as barred by the one-year limitation period set forth in 28 U.S.C. § 2244(d). No certificate of appealability shall issue. Leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 5/22/12. (gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-03093-BNB

ARLUS DANIEL, JR.,
Applicant,
v.
TRAVIS TRANI, Warden, and
JOHN WILLIAM SUTHERS, The Attorney General of the State of Colorado,
Respondents.

ORDER OF DISMISSAL

Applicant, Arlus Daniel, Jr., is a prisoner in the custody of the Colorado
Department of Corrections (DOC) at the Skyline Correctional Center in Cañon City,
Colorado. Mr. Daniel, acting pro se, filed an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254. Mr. Daniel is challenging the validity of his conviction in
Case No. 05CR384 in Larimer County District Court.
On January 13, 2012, Magistrate Judge Boyd N. Boland ordered 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 pursuant to 28
U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses in
this action. On February 27, 2012, Respondents filed a Pre-Answer Response, Doc.
No. 12. Mr. Daniel filed a Reply, Doc. No.15, on April 9, 2012.

The Court must construe liberally the Application and Reply filed by Mr. Daniel
because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the
Court cannot act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For
the reasons stated below, the Court will deny the Application.
On November 16, 2007, Mr. Daniel was convicted by a jury on two counts of theft
from an at-risk adult; one count of theft over $15,000; and one count of securities fraud
in Case No. 05CR384 in Larimer County District Court, and was sentenced to eighteen
years of incarceration in the DOC. Application at 2 and Pre-Answer Resp. at 1-2. His
conviction was affirmed on direct appeal on December 10, 2009. People v. Daniel, No.
08CA0330 (Colo. App. Dec. 10, 2009) (unpublished). Mr. Daniel contends that he
sought review of his direct appeal by filing a C.A.R. 21 motion in the Colorado Supreme
Court (CSC) in October 2010, which was denied by the CSC in November 2010 without
comment. Application at 3.
Mr. Daniel also asserts that he filed a postconviction motion pursuant to Crim. R.
Civ. P. 35(a) and (c) on June 11, 2011, that was denied in August 2011. Mr. Daniel
further asserts that he did not appeal the denial of the June 11 postconviction motion
because he would have been procedurally barred from resubmitting an ineffective
assistance of counsel claim to the Colorado Court of Appeals (CCA). Mr. Daniel
contends that the stay of appellate proceedings motion he filed pro se with the CCA in
his direct appeal contained his ineffective assistance of counsel claim and that his
C.A.R. 21 motion was his appeal of this claim and his due process claim to the CSC.
Id. Mr. Daniel further contends that the CCA and the CSC ignored the ineffective

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assistance and due process claims and his only viable alternative is to seek habeas
relief in this Court. Am. Application, Doc. No. 5, at 6.
Mr. Daniel filed the instant Application on November 28, 2011. He raises three
claims, ineffective assistance of trial counsel, ineffective assistance of appellate
counsel, and a denial of due process by the CCA and the CSC during the direct appeal
process. Am. Application at 7-14.
Respondents first assert that the instant action is barred by the one-year
limitation period in 28 U.S.C. § 2244(d). That statute 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

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counted toward any period of limitation under this
subsection.
28 U.S.C. § 2244(d).
To apply the one-year limitation period, the Court first must determine the date
Mr. Daniel’s conviction became final. The CCA denied Mr. Daniel’s direct appeal on
December 9, 2009. Pre-Answer Resp., Doc. No. 12-3, App. B; Am. Application at 3.
Mr. Daniel contends that prior and subsequent to the denial of the direct appeal he filed
several pro se motions to stay the appellate proceedings, but when there was no
response to the motions he filed a C.A.R. 21 motion in the CSC that was denied in
November 2010. Am. Application at 3. Mr. Daniel contends the C.A.R. 21 motion
exhausted the state court remedies in his direct appeal. Based on Mr. Daniel’s
assertions, his conviction and sentence would not have been final until at the latest
either the end of February or beginning of March 2011, when the time for seeking
review in the United States Supreme Court expired. See Locke v. Saffle, 237 F.3d
1269, 1273 (10th Cir. 2001) (citing Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.
1999).
For the following reasons, the Court finds that, contrary to Mr. Daniel’s
assertions, his conviction was final on January 26, 2010, when the time expired to seek
proper certiorari review of the CCA’s denial of his appeal, and not subsequent to the
disposition of the C.A.R. 21 motion he filed with the CSC. Mr. Daniel’s C.A.R. 21
petition was a challenge to the CCA’s failure to rule on the motion for a stay of the
appellate proceeding that another inmate had prepared and filed on Mr. Daniel’s behalf.
The C.A.R. 21 petition did not address the merits of the direct appeal that Mr. Daniel
had filed in the CCA, and it was filed by another inmate on Mr. Daniel’s behalf.

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A Rule 21 petition does not satisfy the requirement that an applicant must
exhaust his state court remedies before pursuing a review by the United States
Supreme Court. If a “claim has been presented for the first and only time in a
procedural context in which its merits will not be considered unless there are special
and important reasons therefor, . . . [r]aising the claim in such a fashion does not, for the
relevant purpose, constitute fair presentation.” Castille v. Peoples, 489 U.S. 346, 351
(1989) (internal quotation marks and citations omitted); see also Parkhurst v. Shillinger,
128 F.3d 1366, 1369 (10th Cir. 1997) (state procedure that is discretionary and limited
in scope does not constitute fair presentation). The CSC, in its discretion, may decline
to address the merits of claims asserted in an original petition for an extraordinary writ.
See Rogers v. Best, 171 P.2d 769, 770 (Colo. 1946).
The denial of an original petition for an extraordinary writ by the CSC does not
indicate that the court has considered the merits of the argument. Bell v. Simpson, 918
P.2d 1123, 1125 n.3 (Colo. 1996). Accordingly, filing a petition that the CSC, in its
discretion, may deny is not sufficient to exhaust state court remedies. See Allen v.
Zavaras, 568 F.3d 1197, 1202-03 (10th Cir. 2009).
Even though Mr. Daniel did not seek certiorari review of the CCA’s decision, for
purposes of § 2244(d) the direct appeal was pending for the forty-six days allowed to file
a petition for certiorari review (See Colo. App. R. 52(b)(3)) (2011), or until January 26,
2010. Nonetheless, only if a prisoner seeks review of the merits of his claims in the
state court of last resort is the time for purposes of § 2244(d) tolled for an additional
ninety days, the period of time for filing a petition for certiorari with the Supreme Court.
Locke, 237 F.3d at 1273; Sup. Ct. R. 13.1.

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Therefore, because the CSC did not consider the merits of Mr. Daniel’s
arguments and summarily ordered the C.A.R. 21 petition stricken because another
inmate filed the petition on Mr. Daniel’s behalf, see Daniel v. People, No. 2010SA329
(Colo. Nov. 2, 2010), Mr. Daniel’s conviction and sentence became final on January 26,
2010, when the time expired to seek proper certiorari review of the CCA’s denial of his
direct appeal.
Mr. Daniel does not allege that he was prevented by unconstitutional state action
from filing the instant action sooner, that he is asserting a constitutional right newly
recognized by the Supreme Court, or that he did not know or could not have discovered
through due diligence the factual predicate for his federal constitutional claims at the
time he was convicted. Therefore, the Court finds that the one-year limitation expired
on January 26, 2011. See United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir.
2003).
The next question the Court must answer is whether the one-year limitation
period was tolled for any period of time. Pursuant to 28 U.S.C. § 2244(d)(2), a properly
filed state court postconviction motion tolls the one-year limitation period while the
motion is pending. An application for postconviction review is properly filed within 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).
These 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.
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Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000).
The issue of whether a state court postconviction motion is pending for the
purposes of § 2244(d)(2) is a matter of federal law, but “does require some inquiry into
relevant state procedural laws.” 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.
Respondents contend that although Mr. Daniel filed his first postconviction
motion on December 23, 2010, and a second postconviction motion on January 21,
2011, the state district court struck the filings because they were not filed by Mr. Daniel.
Pre-Answer Resp. at 6-7. Respondents further contend that even if this Court finds Mr.
Daniel’s first two postconviction motions were properly filed and the time is tolled from
when they were filed until they were denied, Mr. Daniel’s habeas application still is timebarred pursuant to § 2244(d).
Mr. Daniel’s first postconviction motion was filed on December 23, 2010; his
second postconviction motion was filed on January 21, 2011; and both were dismissed
on February 8, 2011. See Pre-Answer Resp., Doc. No. 12-1, App. A-1 at 10-11. Even
if the Court finds these two motions were properly filed, the time for purposes of
§ 2244(d) was tolled only from December 23, 2010, the date the first postconviction
motion was filed, until March 25, 2011, when the forty-five days expired for Mr Daniel to
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appeal the denial of the postconviction motions, see Colo. App. R. 4(b)(1). Mr. Daniel
did not file his next postconviction motion until July 13, 2011. The motion was denied
on August 11, 2011, and Mr. Daniel did not appeal. Pre-Answer Resp., App. A-1 at 10.
The July 13 postconviction motion, therefore, was pending from July 13, 2011, until
September 26, 2011, when the time expired to file an appeal.
Based on these findings, the time ran from January 27, 2010, the day after Mr.
Daniel’s conviction was final, until December 22, 2010, the day prior to when Mr. Daniel
filed his first postconviction motion, a total of 330 days. The time then ran from March
26, 2011, the day after the time expired to appeal the denial of the first two
postconviction motions, until July 12, 2011, the day prior to when Mr. Daniel filed his
third postconviction motion, a total of 109 days. Finally the time ran from September 27,
2011, the day after the time expired to appeal the third postconviction motion, until
November 27, 2011, the day prior to when Mr. Daniel filed this action, a total of 62 days.
Altogether, 502 days were not tolled for the purposes of § 2244(d). The action,
therefore, is time-barred.
In his Reply, Mr. Daniel argues that the statute of limitations under § 2244(d) is
tolled because State action prevented him from filing a sufficient appeal in violation of
the Constitutional or laws of the United States. Reply, Doc. No. 15, at 7. He further
contends that his appellate counsel was ineffective in failing to pursue meritorious
appellate issues and claims, to provide him with copies of the State’s answer brief and
her reply brief, and to inform him of the CCA’s denial of the appeal. Id. at 8. Mr. Daniel
also asserts that appellate counsel failed to provide him with appellate guidance and
waived his rights to a rehearing and certiorari review. Id. Mr. Daniel further asserts that
the CCA abused its discretion by disregarding his pro se motions for a stay of appellate
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proceedings and a request for an evidentiary hearing. Id. at 13-15.
The Court is not persuaded by these arguments for the following reasons.
Section 2244(d)(1)(B) only applies in the context of an impediment created by
unconstitutional state action. Mr. Daniel fails to demonstrate the existence of any
unconstitutional state action because his appellate attorney is not a state actor when
she “perform[s] a lawyer’s traditional function[ ] as counsel to a defendant in a criminal
proceeding.” See Polk County v. Dodson, 454 U.S. 312, 325 (1981).
Also, ineffective assistance of counsel is “not the type of State impediment
envisioned in § 2244(d)(1)(B).” Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir.
2005), aff’d, 549 U.S. 327 (2007); cf. Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004)
(allegation of ineffective assistance of counsel on direct appeal does not restart the
running of the statute of limitations).
Furthermore, Mr. Daniel’s abuse of discretion claim fails to demonstrate that the
CCA violated his rights under the Constitution or federal law. The Tenth Circuit has
held that, because there is no constitutional right to a hybrid form of representation, a
court need not consider any filings made by a pro se litigant who is represented by
counsel. See United States v. Sandoval-De Lao, 283 F. App’x 621, 625 (10th Cir. 2008)
(citing United States v. McKinley, 58 F.3d 1475, 1480 (10th Cir. 1995). The Court,
therefore, finds no basis for statutory tolling under § 2244(d)(1)(B).
As for Mr, Daniel’s claim that he pursued his remedies diligently and in good faith
by invoking his right to self-representation and that he is “totally innocent,” id. at 16, the
one-year limitation period in § 2244(d) is not jurisdictional and may be tolled for
equitable reasons, Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Generally,
equitable tolling is appropriate if the applicant shows both “that he has been pursuing
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his rights diligently” and “that some extraordinary circumstance stood in his way” and
prevented him from filing in a timely manner. Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005); see Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). A showing of excusable
neglect is not sufficient to justify equitable tolling. See Gibson, 232 F.3d at 808.
Furthermore, in order to demonstrate he pursued his claims diligently, the
applicant must “allege with specificity ‘the steps he took to diligently pursue his federal
claims.’ ” Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008) (quoting Miller, 141
F.3d at 978).
Whether [petitioner] had effective assistance of counsel on direct appeal in
state court is not relevant to the question of the tolling the AEDPA's statute
of limitations. A criminal defendant has a right to effective assistance of
counsel on a first appeal as of right. An alleged violation of that right does
not toll the AEDPA's statute of limitations.
Molo v. Johnson, 207 F.3d 773,775 (5th Cir. 2000); see also, Moore v. Cockrell, 313
F.3d 880 (5th Cir. 2002) (finding counsel's delay in notifying petitioner of the result of the
direct appeal does not constitute a basis for equitable tolling), cert. denied, 538 U.S.
969, 123 S. Ct. 1768 (2003); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002)
(“[M]ere attorney error or neglect is not an extraordinary circumstance such that
equitable tolling is justified.”). Mr. Daniel, therefore, has failed to show rare and
exceptional circumstances that would justify equitable tolling based on appellate
counsel’s alleged failure to pursue meritorious appellate claims and to provide him with
copies of the State’s answer brief and his reply brief, if one was filed.
To the extent, however, that appellate counsel allegedly delayed informing Mr.
Daniel about the CCA decision for over four months, “a prisoner’s lack of knowledge
that the state courts have reached a final resolution of his case can provide grounds for
equitable tolling if the prisoner has acted diligently in the matter.” Woodward v.
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Williams, 263 F.3d 1135, 1143 (10th Cir. 2001) (citing Phillips v. Donnelly, 216 F.3d
508, 511 (5th Cir.), amended in part, 223 F.3d 797 (5th Cir. 2000)).
It is true that the one-year limitation period is subject to equitable tolling when
“serious instances of attorney misconduct” have occurred. Holland, 130 S. Ct. at 2564;
see also Fleming v. Evans, 481 F.3d 1249, 1256 (10th Cir. 2007) (agreeing with other
circuits in a case prior to Holland that “sufficiently egregious misconduct on the part of a
habeas petitioner’s counsel may justify equitable tolling of the AEDPA limitations
period.”). In Holland, the Supreme Court reasoned that equitable tolling may be
appropriate because
“[counsel] failed to file Holland’s federal petition on time despite Holland’s
many letters that repeatedly emphasized the importance of his doing so.
[Counsel] apparently did not do the research necessary to find out the
proper filing date, despite Holland’s letters that went so far as to identify
the applicable legal rules. [Counsel] failed to inform Holland in a timely
manner about the crucial fact that the Florida Supreme Court had decided
his case, again despite Holland’s many pleas for that information. And
[counsel] failed to communicate with his client over a period of years,
despite various pleas from Holland that [counsel] respond to his letters.”
Holland, 130 S. Ct. at 2564.
In Fleming, the applicant’s substantiated allegations that he had been actively
misled by counsel to believe a habeas petition had been prepared and would be filed
were sufficient to warrant an evidentiary hearing to consider whether equitable tolling
was appropriate. See id. at 1256-57. The applicant in Fleming specifically alleged that
he hired counsel nearly a full year before the expiration of the filing deadline, he
contacted counsel several times over the course of the year, counsel repeatedly
reassured him that a petition was being prepared and would be filed, and counsel failed
to file a draft petition the petitioner had submitted until after the time limitation expired.
See id.
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Unlike the substantiated allegations in Fleming, Mr. Daniel does not allege that
he continuously was misled to believe that counsel was preparing a direct appeal when
she actually was not. Appellate counsel prepared and filed a direct appeal. Mr. Daniel
just was not satisfied with claims counsel chose to raise on appeal. Appellate counsel’s
alleged failure to provide Mr. Daniel with a copy of the State’s response and possibly
her reply does not state sufficiently egregious misconduct on the part of appellate
counsel.
Furthermore, the Sixth and Fourteenth Amendments extend the right to counsel
only during the trial and first appeal of right. Pennsylvania v. Finley, 481 U.S. 551, 555
(1987). The United States Supreme Court has “rejected suggestions” to “establish a
right to counsel on discretionary appeals.” Hyberg v. Milyard, 436 F. App’x 843 (10th
Cir. 2011) (internal quotation marks omitted) (quoting Finley, 481 U.S. at 555; citing
Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (“Since respondent had no
constitutional right to counsel, he could not be deprived of the effective assistance of
counsel by his retained counsel’s failure to file the application timely.”).
Even if the Court finds appellate counsel was ineffective in waiting until April
2010 to contact Mr. Daniel about the COA’s denial of the appeal in December 2009, Mr.
Daniel concedes that he was aware as early as January 19, 2010, when he received a
copy of the people’s response to his motion for reconsideration, that the CCA had
affirmed his conviction. Reply at 9. He, however, does not assert that he contacted
appellate counsel or the CCA at this time to confirm the disposition of his appeal, but
rather he waited until April 17, 2010, to file a pro se motion for status of appellate
proceeding. See Nov. 28, 2011 Application, Doc. No. 1-2 at 115. Mr. Daniel’s delay of

12

three months to pursue a proper appeal to the State’s highest court does not
demonstrate due diligence.
Mr. Daniel, therefore, has failed to demonstrate that equitable tolling is
appropriate based on appellate counsel’s alleged failure to pursue meritorious appellate
issues and claims, to provide him with copies of the State’s answer brief and her reply
brief, to inform him of the CCA’s denial of the appeal, and to provide him with further
appellate guidance regarding a rehearing and certiorari review.
Equitable tolling also may be appropriate if the applicant actually is innocent.
See Gibson, 232 F.3d at 808. An actual innocence argument “is premised on the same
fundamental miscarriage of justice exception that was discussed by the Supreme Court”
in Schlup v. Delo, 513 U.S. 298 (1995), and Coleman v. Thompson, 501 U.S. 722
(1991). See Lopez v. Trani, 628 F.3d 1228, 1231 (10th Cir. 2010). In the rare and
extraordinary case in which a habeas applicant can demonstrate equitable tolling is
appropriate on actual innocence grounds, the applicant is not required to demonstrate
he diligently pursued the actual innocence claim. Lopez, 628 F.3d at 1230-31.
However, to be credible, a claim of actual innocence requires a petitioner “to support his
allegations of constitutional error with new reliable evidence--whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that
was not presented at trial.” Schlup, 513 U.S. at 324. The applicant then must
demonstrate “that it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.” Id. at 327. The Court emphasizes that
a “substantial claim that constitutional error has caused the conviction of an innocent
person is extremely rare.” Id. at 324.

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Mr. Daniel’s conclusory reference to actual innocence is not sufficient to justify
equitable tolling. Mr. Daniel does not present any new reliable evidence that was not
presented at trial that would demonstrate “it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence.” Schlup, 513 U.S. at
327.
For all of these reasons, the Court finds no basis for equitable tolling of the oneyear limitation period and this action is barred. Because the action clearly is
time-barred the Court will refrain from addressing whether Mr. Daniel has exhausted his
state court remedies.
Based on the above findings, the Court will deny the Application and dismiss the
action as barred from federal habeas review.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not taken in good faith, and, therefore, in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Daniel files a notice of appeal he must pay the full $455.00 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals
for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Application is denied and the action is dismissed as barred
by the one-year limitation period set forth in 28 U.S.C. § 2244(d). It is
FURTHER ORDERED that no certificate of appealability shall issue because Mr.
Daniel has not made a substantial showing that jurists of reason would find it debatable

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whether the procedural ruling is correct and whether the underlying claim has
constitutional merit. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

22nd

day of

May

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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