Bueno v. Timme et al

Filing 19

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 4/11/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03401-BNB
JOEY BUENO,
Applicant,
v.
RAE TIMME, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Joey Bueno, is a prisoner in the custody of the Colorado Department
of Corrections at the Colorado Territorial Correctional Facility. Mr. Bueno has filed pro
se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1).
He is challenging the validity of his Colorado convictions in case numbers 92CR96 and
92CR209 in the Douglas County District Court. Mr. Bueno has been granted leave to
proceed pursuant to 28 U.S.C. § 1915.
On January 2, 2014, Magistrate Judge Boyd N. Boland directed 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 under 28 U.S.C. §
2254(b)(1)(A). After being granted an extension of time to file a pre-answer response,
Respondents submitted a Motion for Leave to File Motion to Dismiss (ECF No. 13)
arguing that the Application was time barred. The Court granted leave and the Motion
to Dismiss Habeas Application (ECF No. 14) was accepted for filing. After being

granted an extension of time to file a response to the Motion to Dismiss, Mr. Bueno
submitted his Reply (ECF No. 18) on March 17, 2014.
The Court must construe Mr. Bueno’s filings liberally 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 should not act as
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the Court will grant Respondents’ Motion to Dismiss and deny the Application as
untimely.
I. Background
In 1993, a jury found Mr. Bueno guilty of kidnapping, burglary, aggravated
robbery, aggravated motor vehicle theft, and second degree assault in case number
92CR96. (ECF No. 1, at 1; No. 14-1, at 32.) In case number 92CR209, Mr. Bueno pled
guilty to ten separate counts of aggravated robbery. (ECF No. 1, at 1; No. 14-2, at 26.)
The trial court sentenced him to 118 years of imprisonment. (ECF No. 1, at 1; No. 14-1,
at 36.)
A. Case Number 92CR96
With respect to case 92CR96, Mr. Bueno filed a direct appeal, and the Colorado
Court of Appeals affirmed in part, reversed in part, and remanded with directions to
vacate the conviction of second degree burglary and eliminate any sentence imposed
for that conviction. (ECF No. 14-1, at 25.) On April 2, 1996, the Colorado Supreme
Court order denying certiorari review was filed in the state district court, and the
mandate issued April 10, 1996. (Id. at 24.)
According to the record before the Court, Mr. Bueno did not file any motions for
2

more than two years, until he submitted a motion for appointment of postconviction
counsel on June 18, 1998. (ECF No. 14-1, at 21.) On October 9, 1998, Mr. Bueno filed
pro se a motion for postconviction relief (hereinafter “Pro Se Postconviction Motion”).
(Id.) In November 1998, the court appointed postconviction counsel to Mr. Bueno. (Id.)
In April 2003, nearly five years after being appointed counsel, Mr. Bueno’s
postconviction counsel filed a “Brief in Support of Motion for New Trial” (hereinafter
“2003 Postconviction Supplement”), which the state court considered as a supplement
to the Pro Se Postconviction Motion. (Id., at 18; ECF No. 18, at 11.) On November 4,
2003, the state district court denied the 2003 Postconviction Supplement as untimely
and denied the Pro Se Postconviction Motion on the merits. (Id.) Mr. Bueno appealed,
the Colorado Court of Appeals affirmed, and his petition for writ of certiorari was denied
in February 2006. (Id., at 17.)
On June 20, 2006, Mr. Bueno filed another petition for postconviction relief
challenging the effectiveness of his appointed postconviction counsel (hereinafter “2006
Postconviction Counsel Motion”) (ECF No. 14-1, at 17; ECF No. 18, at 11.) In June
2009, Mr. Bueno’s new court-appointed counsel supplemented the 2006 Postconviction
Counsel Motion. (ECF No. 14-1, at 15; ECF No. 18, at 21.) On December 16, 2009,
the state district court granted the 2006 Postconviction Counsel Motion finding that Mr.
Bueno’s postconviction counsel was ineffective and that the court should consider the
merits of the 2003 Postconviction Supplement. (ECF No. 14-1, at 15; ECF No. 18, at
11.)
The record reflects that the state district court set an evidentiary hearing to be
held in September 2010, but that hearing was continued. (ECF No. 14-1, at 15; ECF
3

No. 18 at 13, 22.) On January 18, 2011, the state district attorney apparently objected
to rescheduling the evidentiary hearing, and the new judge directed the parties to
submit a timeline relating to Mr. Bueno’s postconviction motions. (ECF No. 14-1, at 14;
ECF No. 18, at 22.) The new judge then determined that a hearing was unnecessary,
and on September 8, 2011, denied postconviction relief. (ECF No. 14-1, at 13.) Mr.
Bueno appealed, and in January 2014, the Colorado Court of Appeal order affirming the
decision and Colorado Supreme Court order denying certiorari were filed in the state
district court. (Id., at 12; ECF No. 14-2, at 15.)
B. Case Number 92CR209
Mr. Bueno filed a direct appeal in case 92CR209, and the Colorado Court of
Appeals affirmed the conviction and sentence in 1996. (ECF No. 14-2, at 22.) On
December 9, 1996, the Colorado Supreme Court denied certiorari. (Id.)
According to the record before the Court, Mr. Bueno did not file any motions until
January 30, 1998, when he filed a motion for appointment of counsel. (ECF No. 14-2,
at 21.) In February 1998, the state district court ordered the Office of the Public
Defender to represent Mr. Bueno in his postconviction proceedings. (Id.) In April 1998,
Mr. Bueno’s appointed public defender withdrew because of conflict, and Mr. Bueno’s
subsequently appointed counsel also withdrew in November 1998. (Id.) On November
30, 1998, Mr. Bueno appears to have filed a motion for application for postconviction
relief (hereinafter “First Postconviction Motion”). (Id.) On December 9, 1998, Mr. Bueno
was appointed postconviction counsel but the record does not indicate any resolution of
the First Postconviction Motion. (Id., at 20.)
In April 2003, Mr. Bueno filed a second motion for postconviction relief
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(hereinafter “Second Postconviction Motion”).1 (ECF No. 14-2, at 20.) On July 31,
2003, the state district court denied the Second Postconviction Motion. (Id.) Mr. Bueno
appealed, and the Colorado Court of Appeals affirmed the denial on April 21, 2005. (Id.,
at 19.) On August 22, 2005, the Colorado Supreme Court denied certiorari review. (Id.)
On April 7, 2008, Mr. Bueno filed a third petition for postconviction relief
(hereinafter “Third Postconviction Motion”). (ECF No. 14-2, at 19.) In June 2008, the
state district court appointed counsel, and a supplement to the postconviction petition
was filed through Mr. Bueno’s counsel on March 3, 2010. (Id., at 18-19; ECF No. 18, at
22.) It appears that at some point the state district court consolidated the postconviction
proceedings in case 92CR209 and case 92CR96, and denied postconviction relief in
both cases on September 8, 2011. (ECF No. 14-1, at 13-14; ECF No. 14-2, at 17-18.)
The Colorado Court of Appeals affirmed and certiorari review was denied in January
2014. (ECF No. 14-2, at 15.)
II. Habeas Application
Mr. Bueno initiated the instant habeas corpus action on December 17, 2013, and
asserts fifteen claims. The claims are presented as follows:
•

Claim One: The trial court erred when it denied the defense’s
motion to suppress evidence based upon an unconstitutional
search and seizure.

•

Claim Two: At the suppression hearing, the trial court violated the
Defendant’s constitutional rights to due process of law, effective
assistance of counsel, and to confront the witnesses against him,
when it did not require the prosecution to produce reports regarding
the other offenses that were used to generate the suspicion for the

1

This is around the same time that Applicant files, through postconviction counsel, his
2003 Postconviction Supplement in case 92CR96. (See ECF No. 14-1, at 18.)
5

police contact with the Defendant, inhibiting a meaningful crossexamination of the prosecution’s witnesses, and the trial court’s
proper determination of the “totality of the circumstances.”
•

Claim Three: The trial court erred when it found that the police
contact with the Defendant was an investigatory stop and not an
arrest.

•

Claim Four: The evidence was insufficient, as a matter of law, to
sustain Defendant’s conviction for kidnapping.

•

Claim Five: Contrary to its findings, the trial court had the
discretion, pursuant to C.R.S. § 18-1-408, to sentence Defendant
for the aggravated robbery and burglary convictions concurrently.

•

Claim Six: Pursuant to C.R.S. § 18-1-408, the trial court was
required to sentence Defendant concurrently on his convictions for
aggravated robbery and assault upon Robert D’Amico Sr.

•

Claim Seven: Pursuant to C.R.S. § 18-1-408, the trial court was
required to sentence Defendant concurrently for his convictions of
aggravated robbery and kidnapping.

•

Claim Eight: The trial court erred when it found the police
possessed a reasonable and articulable suspicion sufficient for a
valid investigatory stop.

•

Claim Nine: The Court denied Defendant his right to counsel on his
motion to withdraw his guilty plea.

•

Claim Ten: The Court erred when it concluded that Defendant had
voluntarily, knowingly and intelligently waived his right to counsel.

•

Claim Eleven: The Court erred when it found that that Defendant
did not present a fair and just reason to withdraw his guilty pleas.

•

Claim Twelve: Knight provided ineffective assistance of counsel to
Defendant because he failed to challenge the prosecution’s starwitness informant.

•

Claim Thirteen: Knight provided ineffective assistance of counsel to
Defendant because he failed to adequately address discovery
violations made by the prosecution.

•

Claim Fourteen: Knight provided ineffective assistance of counsel
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to Defendant because he failed to present any defense or alibi
witnesses for Defendant, and forbade Defendant to testify in his
own defense.
•

Claim Fifteen: Defense counsel’s failure to move to suppress the
testimony of Michael Stern.

(ECF No. 1, at 2-14.)
Respondents move to dismiss the Application arguing that it was filed outside the
one-year limitation period in 28 U.S.C. § 2244(d). In response, Mr. Bueno asserts that
he timely filed his original postconviction motion in the state court within the “federal
statutory time limit of three years for filing his habeas corpus petition.” (See ECF No.
18, at 1.) Mr. Bueno also contends that “excusable neglect, justifiable excuse,
inadvertence, or mistake of law exists for Petitioner failing to file his habeas petition
within one-year, as the Respondents claim needed to be done.” (Id.).
Respondents are correct that the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) has a one-year limitations period for filing a habeas application in
federal court. Section 2244(d) 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
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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
counted toward any period of limitation under this
subsection.
28 U.S.C. § 2244(d).
A. One year limitation period for case number 92CR96
The Court first must determine the date on which the judgment of conviction in
case 92CR96 became final. See 28 U.S.C. § 2244(d)(1)(A). In general, a conviction
becomes final “after the United States Supreme Court has denied review” of a decision
by the state court of last resort, or, “if no petition for certiorari is filed, after the time for
filing a petition for certiorari with the Supreme Court has passed.” See Locke v. Saffle,
237 F.3d 1269, 1273 (10th Cir. 2001). Here, the Colorado Supreme Court order
denying certiorari review was filed in the state district court on April 2, 1996. (ECF No.
14-1, at 25.) Mr. Bueno did not file a petition for writ of certiorari with the United States
Supreme Court. Thus, Mr. Bueno’s conviction became final on or around July 1, 1996,
when the time for him to seek review with the United States Supreme Court expired.2
The Court also finds that the one-year limitation period began to run on July 1,

2

Applicant’s conviction become final after the effective date of the AEDPA— April 24,
1996. Thus, the Application is subject to the one-year limitation period under the AEDPA.
8

1996, because Mr. Bueno does not allege or argue that he was prevented by
unconstitutional state action from filing this action sooner, he is not asserting any
constitutional rights newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review, and he knew or could have discovered the
factual predicate for his claims before his conviction became final. See 28 U.S.C. §
2244(d)(1)(B) - (D).
The Court next must determine whether the one-year limitation period was tolled
for any period. Pursuant to § 2244(d)(2), a properly filed state court postconviction
motion tolls the one-year limitation period while the motion is pending. See also
Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). 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.
Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000) (footnote omitted).
The issue of whether a postconviction motion is pending is a matter of federal
law, but “does require some inquiry into relevant state procedural laws.” 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
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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.
Here, Mr. Bueno’s limitations period began to run on or about July 1, 1996, and
continued unabated until it expired a year later on or about July 1, 1997. See United
States v. Hurst, 322 F.3d 1256, 1259-61 (10th Cir. 2003) (one-year limitations period
ends on the one-year anniversary of the date upon which the period began to run). The
state court registry for case number 92CR96 shows that Mr. Bueno did not file any
motions during this period. (See ECF No. 14-1, at 22-23.) His first motion for
postconviction relief was not filed until October 9, 1998, more than fifteen months after
the one-year limitation period had expired. (Id., at 22.)
Moreover, Mr. Bueno’s June 18, 1998 motion for postconviction counsel also was
filed after expiration of the one-year limitation period. Even if the motion for counsel
was filed prior to July 1, 2007, it does not qualify as a properly filed state court
postconviction motion. See Woodford v. Garceau, 538 U.S. 202, 207 (2003) (holding
that a motion requesting postconviction counsel that does not state any factual or legal
grounds for relief as requires by Rule 35(c) is not a properly filed application for §
2244(d) purposes, because it does not call for a decision on the merits); see also Banks
v. Trani, 373 Fed. Appx. 857, 858-59 (10th Cir. 2010). Accordingly, this Court finds that
Mr. Bueno’s postconviction motions in case 92CR96 did not toll the limitations period
because it had expired before he filed any motions. See Clark v. Oklahoma, 468 F.3d
711, 714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed within the
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one year allowed by AEDPA will toll the statute of limitations.”).
B. One year limitation period for case number 92CR209
The Court next must determine when the judgment of conviction became final in
case 92CR209. The Colorado Supreme Court denied certiorari review on December 6,
1996. (ECF No. 14-2, at 22.) Mr. Bueno did not file a petition for writ of certiorari with
the United States Supreme Court, and thus his conviction became final on or around
March 6, 1997, when the time for him to seek review with the United States Supreme
Court expired.3
The Court also finds that the one-year limitation period began to run on March 6,
1997, because Mr. Bueno does not allege or argue that he was prevented by
unconstitutional state action from filing this action sooner, he is not asserting any
constitutional rights newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review, and he knew or could have discovered the
factual predicate for his claims before his conviction became final. See 28 U.S.C. §
2244(d)(1)(B) - (D).
The Court next must determine whether the one-year limitation period was tolled
for any period. Here, Mr. Bueno’s limitations period began to run on March 6, 1997, and
would have expired a year later on March 6, 1998, unless the limitations period was
tolled by a properly filed state court postconviction motion. The state court record
reflects that Mr. Bueno’s first application for postconviction relief was not filed until
November 30, 1998, which is more than nine months after the one-year limitation period
3

Again Applicant’s conviction become final after the effective date of the AEDPA, and
thus the Application is subject to the one-year limitation period.
11

had expired. (See ECF No. 14-2, at 21.) Similarly, even if Mr. Bueno’s October 9, 1998
postconviction motion filed in case 92CR96 (See ECF No. 14-1, at 21) was later treated
as pertaining to case 92CR209, this motion also was filed beyond the one-year
limitation period.
Moreover, Mr. Bueno’s request for postconviction counsel filed January 30, 1998
does not qualify as a properly filed state court postconviction motion that statutorily tolls
the one-year limitation period. See Woodford, 538 U.S. at 207; Banks, 373 Fed. Appx.
at 858-59. Accordingly, the Court finds that Mr. Bueno’s postconviction motions in case
92CR209 likewise did not toll the limitations period because it had expired before he
filed any postconviction petitions. See Clark, 468 F.3d at 714 (“Only state petitions for
post-conviction relief filed within the one year allowed by AEDPA will toll the statute of
limitations.”).
Therefore, this action is time-barred in the absence of some other reason to toll
the one-year limitation period.
C. Equitable tolling
The one-year limitation period in § 2244(d) is not jurisdiction and may be tolled
for equitable reasons. Holland v. Florida, 560 U.S. 631, 634 (2010). Generally,
equitable tolling is appropriate if the applicant shows both (1) "that he has been
pursuing his rights diligently" and (2) "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. Moreover, an applicant’s ignorance of the law does not justify the extraordinary
12

remedy of equitable tolling. See Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir.
2000); Hallcy v. Milyard, 387 F. Appx. 858, 860 (10th Cir. 2010). Furthermore, in order
to demonstrate that 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).
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). Therefore, 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. See
Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010). However, to be credible, a
claim of actual innocence requires an applicant "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.
Mr. Bueno first argues that his appellate counsel erroneously instructed him that
he had no time constraints for filing his federal habeas petition. (See ECF No. 18, at 3,
13

10). In Lawrence v. Florida, the United States Supreme Court rejected an applicant’s
argument that his counsel’s mistake in miscalculating the AEDPA limitations period
entitled him to equitable tolling. 549 U.S. 327, 336-37 (2007). The Supreme Court held
that “[a]ttorney miscalculation is simply not sufficient to warrant equitable tolling,
particularly in the postconviction context where prisoners have no constitutional right to
counsel.” Id.; see also Rouse v. Lee, 339 F.3d 238, 248-49 (4th Cir. 2003) (“a mistake
by a party’s counsel in interpreting a statute of limitations does not present that
extraordinary circumstances beyond the party’s control where equity should step in to
give the party the benefit of his erroneous understanding” and citing cases supporting
this proposition from the Second, Third, Fifth, Seventh, Eighth, Ninth, Eleventh, and
Federal Circuits); Reynolds v. Hines, 55 Fed. Appx. 512, 513 (10th Cir. 2003) (affirming
“reject[ion] [of] Reynolds’ request that the limitations period be equitably tolled” noting
“Reynolds’ attorney’s incorrect advice regarding when the limitations period began to
run was not the type of extraordinary circumstances entitling Reynolds to equitable
tolling”).
However, “sufficiently egregious misconduct on the part of a habeas petitioner’s
counsel may justify equitable tolling of the AEDPA limitations period.” Fleming v. Evans,
481 F.3d 1249, 1254 (10th Cir. 2007); see also Holland, 560 U.S. at 652 (2010) (stating
that one-year limitation period is subject to equitable tolling when “serious instances of
attorney misconduct” have occurred). Sufficiently serious instances of attorney
misconduct require more than mere attorney error. See e.g., Fleming, 481 F.3d at
1256-57 (“attorney deceived [petitioner] into believing that he was actively pursuing Mr.
Fleming’s legal remedies when, in fact, he was not.”); Holland, 560 U.S. at 652 (attorney
14

failed to file federal petition on time despite petitioner’s many letter that repeatedly
emphasized the importance of his doing so; attorney failed to do research necessary to
find out proper filing date, despite petitioner’s letters that identified the applicable legal
rules; attorney failed to inform petitioner in timely manner about the crucial fact that
state supreme court had decided his case, again despite petitioner’s many pleas for that
information; and attorney failed to communicate with client over a period of years,
despite various pleas from petitioner).
Here, Mr. Bueno does not allege that his appellate counsel was hired to file his
federal habeas petition. Nor does Mr. Bueno claim that his appellate counsel deceived
him or somehow caused him to believe that he was actively pursing his habeas claims
in either state or federal court. Mr. Bueno’s allegations that his counsel misinformed
him of the AEDPA limitations period demonstrate no more than an attorney’s simple
mistake in interpreting the statute of limitations. Thus, Fleming and Holland are
inapplicable, and Lawrence controls: “Attorney miscalculation is simply not sufficient to
warrant equitable tolling.” 549 U.S. 336-37; see also Baldayaque v. United States 338
F.3d 145, 152 (2d Cir. 2003) (simple attorney mistakes about the rules that apply to
deadlines for filing habeas petitions are ordinary and normally will not warrant equitable
tolling).
Moreover, Mr. Bueno does not provide any allegations demonstrating that he
acted diligently in pursuing his federal rights. Although, it appears Mr. Bueno asked his
appellate counsel about the deadline for filing his federal habeas petition in one letter
dated December 20, 1996 (see ECF No. 18, at 10), Mr. Bueno makes no additional
allegations about any other steps he took to pursue his federal habeas claims. Thus,
15

Applicant fails to allege with specificity ‘the steps he took to diligently pursue his federal
claims.’” Yang, 525 F.3d at 930.
Mr. Bueno also argues that equitable tolling of the one-year limitation period is
appropriate because he is actually innocent. (See ECF No. 18, at 1, 7.) Mr. Bueno,
however, fails to provide any factual allegations or evidence to support his claim of
actual innocence. See Schlup, 513 U.S. at 324 (explaining that a credible claim of
actual innocence requires an applicant “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.”).
Moreover, “in analyzing the sufficiency of the plaintiff’s complaint, the court need accept
as true only the plaintiff’s well-pleaded factual contentions, not his conclusory
allegations." Hall, 935 F.2d at 1110; see also Ketchum v. Cruz, 775 F. Supp. 1399,
1403 (D. Colo. 1991) (vague and conclusory allegations that his rights have been
violated does not entitle a pro se pleader to a day in court regardless of how liberally the
pleadings are construed), aff’d, 961 F.2d 916 (10th Cir. 1992).
For all these reasons, the Court finds that Mr. Bueno has not demonstrated that
the limitations period should be tolled. Therefore, the Application is time-barred and
must be dismissed in its entirety. Accordingly, it is
ORDERED that Respondents’ Motion to Dismiss Habeas Application (ECF No.
14) is GRANTED, the Application (ECF No. 1) is DENIED, and the action is DISMISSED
as barred by the one-year limitation period in 28 U.S.C. § 2244(d). It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. It is
16

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith. See Coppedge v. United States, 369
U.S. 438 (1962). If Applicant files a notice of appeal he must also pay the full $505.00
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.
DATED at Denver, Colorado, this 11th day of

April , 2014.

BY THE COURT:

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

17