Garcia v. Hansen et al
Filing
23
ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/12/16. No certificate of appealability shall issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00740-GPG
JEREMY GARCIA,
Applicant,
v.
MATTHEW HANSEN, Acting Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER OF DISMISSAL
Applicant, Jeremy Garcia, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Garcia has filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging the validity of his
conviction and sentence in Weld County District Court case number 02CR1342. He has
paid the $5.00 filing fee.
On June 15, 2015, Magistrate Judge Gordon P. Gallagher 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 June 24, 2015, Respondents filed their Pre-Answer
Response (ECF No. 12) arguing that the Application is barred by the one-year limitation
period, and that claim two is unexhausted, and therefore the entire application must be
dismissed as a mixed petition. On September 18, 2015, Mr. Garcia filed his Reply (ECF
No. 16) contending that Respondents are “factually and legally incorrect” as to the
timeliness defense.
On September 29, 2015, Magistrate Judge Gallagher ordered Respondents to
file a Supplemental Pre-Answer addressing the issue of whether equitable tolling should
be applied. Respondents filed their Supplemental Pre-Answer Response (ECF No. 19)
on October 20, 2015, and Mr. Garcia filed his Supplemental Reply (ECF No. 22) on
December 21, 2015.
The Court must construe the Application and other papers filed by Mr. Garcia
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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
For the reasons stated below, the Court will dismiss the action as time-barred.
I. Background
The Colorado Court of Appeals described the relevant factual and procedural
background of Mr. Garcia’s criminal case as follows:
During a party at an apartment, defendant’s friend, Walter Herrera,
argued with another partygoer on the balcony. When the argument
escalated, defendant and Herrera each pulled out a gun and defendant’s
other friend, Jasper Garcia, pulled out a knife. Defendant and his two
friends were asked to leave. After he reached the parking lot, defendant
fired five shots from the gun. A bullet from one of the shots killed the
victim, who had been standing on the balcony.
A jury convicted defendant of second degree murder, and the court
sentenced him to forty-eight years in the custody of the Department of
Corrections. On appeal, a division of this court upheld defendant’s
conviction and sentence. See People v. Garcia, (Colo. App. No.
05CA2246, Jan. 24, 2008) (not published pursuant to C.A.R. 35(f) (Garcia
I).
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In September 2008, defendant filed a pro se Crim. P. 35(c) motion,
arguing that (1) the trial court denied him the right to present a defense
when it did not allow counsel to impeach the prosecution’s witnesses with
evidence of gang activity; (2) he was denied the right to effective
assistance of counsel based on (a) the number of counsel appointed to
represent him, (b) trial counsel’s failure to use the defense strategy they
had agreed on, (c) trial counsel’s failure to move for a mistrial or request a
curative instruction after the prosecution showed morgue and crime scene
photographs to the jury in the presence of the victim’s two children, (d) trial
counsel’s failure to request a jury instruction on crime of violence, and (e)
appellate counsel’s failure to “fully and thoroughly . . . litigate the claims [in
Garcia I] and the claims herein stated”; (3) he was denied the right to a
jury of his peers because the jury was not representative of a “crosssection of the community”; and (4) the trial court erred when it (a) failed to
instruct the jury on “aggravating circumstances/sentences,” (b) did not
enforce the instruction that required the jury to refrain from talking about
the case outside the deliberation room, (c) allowed the prosecutor to
“badger and discredit” his expert witness, and (d) failed to “marshall[] the
testimony of the state witnesses who went from telling detectives originally
that the shooting was involuntary, to intentional during trial.”
After the court appointed counsel, defendant supplemented his
motion and argued that trial counsel was ineffective when he (1) conceded
every element of the crime of second degree murder except the culpable
mental state and then presented the case to the jury as if the culpable
mental state of the crime was intentionally or with intent rather than
knowingly; (2) failed to assert the affirmative defense of self-defense
because he misunderstood the requirements for raising that defense; and
(3) made cumulative errors throughout the trial, including his failure to (a)
object to the admission of a photograph of the victim pregnant with her
second child, (b) properly impeach a witness, (c) endorse the investigator
as a witness at trial, and (d) competently lay a foundation to qualify the
defense expert as an expert witness.
The district court denied defendant’s motion without a hearing,
finding that (1) although trial counsel misstated it at times during the
opening statement and closing argument, counsel understood the
applicable culpable mental state and “[t]he majority of [trial counsel’s]
closing argument . . . accurately addressed” whether defendant “knowingly”
caused the death of a person; (2) there was no support in the record for the
assertion that trial counsel failed to raise the affirmative defense of selfdefense based on a misunderstanding of that defense; (3) trial counsel’s
failure to raise self-defense was trial strategy; (4) based on the evidence at
trial, it was “extremely unlikely that the presentation of the affirmative
defense of self-defense would have led to a different result”; (5) trial
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counsel’s strategy “resulted in effective representation given the evidence”
at trial; and (6) based on its review of the record as a whole, it could not
find that trial counsel was not adequately prepared.
(ECF No. 12-4, at 3-6, People v. Garcia, No. 11CA2409, slip op. at 1-4 (Colo. App. May
16, 2013)). The Colorado Court of Appeals affirmed the trial court’s denial of the
postconviction motion. (Id.). On February 18, 2014, the Colorado Supreme Court
denied Mr. Garcia’s petition for writ of certiorari. (See ECF No. 12-2.)
Mr. Garcia initiated the instant action on April 9, 2015 by filing the § 2254
Application asserting the following claims for relief:
(1) “the defendant was sentenced in violation of the U.S. Const. by the lower
court making findings of fact and conclusions of law that were required to be
made by the jury when a sentence including aggravating and mitigating
factors are needed (Blakely/apprendi).”
(2) “the defendant was deprived of effective assistance of counsel by
counsels conduct in confessing the elements of the crime in the presence of
the jury. Counsel then improperly presented evidence which showed a
misunderstanding of the law relevant to the theory of the defense.”
(ECF No. 1, at 5-6).
II. One Year Limitation Period
As noted above, Respondents argue that the application is untimely under 28
U.S.C. § 2244(d). That statute provides:
(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
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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
counted toward any period of limitation under this
subsection.
28 U.S.C. § 2244(d).
In order to apply the one-year limitation period the Court first must determine the
date on which Mr. Garcia’s conviction became final. See 28 U.S.C. § 2244(d)(1)(A). In
general, a conviction becomes final after the United States Supreme Court affirms a
conviction on the merits or denies review following a decision by the state court of last
resort on direct appeal, or, if no petition for writ of certiorari is filed, when the time for
seeking such review expires. Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001).
The Colorado Supreme Court denied certiorari review on direct appeal on July
14, 2008. (See ECF No. 12-1, at 19; ECF No. 12-9, at 2). Pursuant to Rule 13.1 of the
Rules of the Supreme Court of the United States, Mr. Garcia had ninety days to seek
review in the United States Supreme Court, but he did not do so. Therefore, the Court
agrees with Respondents that Mr. Garcia’s conviction became final on October 13,
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2008, when the time for filing a petition for writ of certiorari in the United States
Supreme Court expired.1
Mr. Garcia disputes that his conviction became final in October 2008. Instead,
he argues in the Supplemental Reply that his sentence and conviction were not affirmed
as a matter of law until October 27, 2015, when the state court entered an order that the
conviction was affirmed by operation of law in response to Mr. Garcia’s “Petition to
Affirm Conviction.” (See ECF No. 22; see also Colorado State Courts Data Access
Website record, Weld County Dist. Court Case No. 02CR1342, as of February 5, 2016).
The Court has reviewed the state court register of actions and finds that Mr. Garcia’s
position is without merit. As explained above, the Court finds that Mr. Garcia’s
conviction became final on October 13, 2008, when time expired to file a petition for writ
of certiorari in the United States Supreme Court. See Locke, 237 F.3d at 1273; see
also Clay v. United States, 537 U.S. 522, 524-25 (2003) (rejecting the issuance of the
appellate court mandate as the triggering date, and holding that a conviction becomes
final when the time expires for filing a petition for certiorari contesting the affirmation of
the conviction); Crutcher v. Cockrell, 301 F.3d 656, 657 (5th Cir. 2002) (Section
“2244(d)(1)(A) looks to when a judgment becomes final, not when the petitioner
becomes aware that the judgment is final”).
Mr. Garcia does not allege in his pleadings that there are any constitutional rights
newly recognized by the Supreme Court that apply to his claims. § 2244(d)(1)(c). Mr.
Garcia also does not assert that he could not have discovered the factual predicate of
1
The 90th day after July 14, 2008, was Saturday, October 11, 2008, which means the
filing deadline extended two additional days until Monday, October 13, 2008. See Sup. Ct. R.
30.1.
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his claim through the exercise of due diligence. § 2244(d)(1)(D).
In the Reply, Mr. Garcia asserts that “following the denial of the Writ of Certiorari
in the Colorado Supreme Court the defendant has not received a mandate from the
court as is the common practice following denial of said Writ.” (See ECF No. 16, at 1).
More specifically, Mr. Garcia argues that he has not received a “mandate verifying the
denial of the writ of cert. Thus at most the petition is premature . . . the court failed to
notify the applicant thereafter how was he supposed to file his petition prior to that . . .
he is still awaiting verification from the District Court to affirm the denial and conviction.”
(Id.). Mr. Garcia further contends that “prior to the expiration of the 90 time frame
seeking review by the U.S. Supreme Court defendant filed his postconviction motion
thus, the time to seek review in that court re-commensed [sic] following the denial of the
Writ of Certiorari. However once again the court failed to inform the pro se applicant.”
(Id., at 2). Construing the allegations liberally, Mr. Garcia appears to argue that the
one-year limitation period did not begin to run when his conviction became final because
the delay in issuing the mandate to Mr. Garcia is a state-created impediment to filing his
federal habeas application. See 28 U.S.C. § 2244(d)(1)(B).
Mr. Garcia’s allegations regarding his lack of receipt of the “mandate verifying the
denial of the writ of cert.” do not demonstrate that he faced an impediment created by
unconstitutional state action that actually prevented him from filing the Application in this
Court. See e.g., Madden v. Thaler, 521 Fed. App’x 316, 321 (5th Cir. 2013) (holding
that 18-month delay in issuing mandate did not constitute state-created impediment that
actually prevented applicant from filing a timely federal habeas application); Troutt v.
Jones, 288 Fed. App’x 452, 453 (10th Cir. 2008) (rejecting applicant’s argument that the
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limitation period runs from the date of the state court mandate because the ninety-day
period to file a petition with the Supreme Court runs from the date of the entry of the
judgment, not the issuance date of the mandate); see also Gonzalez v. Thaler, — U.S.
— , 132 S. Ct. 641, 655-56 (2012) (stating that a petitioner facing a lengthy delay in the
issuance of a mandate could file a protective federal habeas application and seek a
stay). Moreover, courts have “rejected the argument that the one-year limitation period
only begins to run from the date the petitioner actually received notice that his direct
review has concluded.” San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011)
(finding no support for applicant’s claim that one-year limitation period did not begin to
run until he received actual notice of the denial of his petition for writ of certiorari from
his convictions and sentence); Sigala v. Bravo, 656 F.3d 1125, 1127-28 (10th Cir. 2011)
(applicant’s lack of notice that direct review has concluded did not reset limitations
period because limitation period begins to run when a final judgment is filed in court);
Rouse v. Lee, 339 F.3d 238, 245 (4th Cir. 2003) (“The limitations period of the AEDPA,
however, runs from ‘the date on which the judgment became final,’ not from the date on
which [the applicant] was served with (or, in this case, merely received) notification of
the final judgment.”). For example, in San Martin, the Eleventh Circuit held that the oneyear limitation period began to run when the Supreme Court's denial of the prisoner’s
petition for review was filed, not when the defendant received a copy of the denial by
mail, two weeks later. 633 F.3d at 1266-67.
The record indicates that Mr. Garcia was aware that his petition for writ of
certiorari was denied by the Colorado Supreme Court on or around July 14, 2008. First,
Mr. Garcia alleges in the Application that the Colorado Supreme Court issued a
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“decision without published opinion” on July 21, 2008 in his direct appeal. (ECF No. 1,
at 3). Second, on September 4, 2008, Mr. Garcia filed his postconviction motion in
which he alleged that the Colorado Supreme Court denied his appeal on July 14, 2008
in case number 08SC189. (ECF No. 12-8, at 2). Thus, Mr. Garcia’s own allegations
contradict his claim that he lacked notice that his conviction was affirmed on direct
appeal after the Colorado Supreme Court denied his petition for certiorari. Therefore,
the Court cannot find that § 2244(d)(1)(B) applies to reset the limitation period in this
case.
As stated above, for purposes of § 2244(d)(1)(A), a state conviction becomes
final when the time for seeking direct review expires, regardless of when the court of
appeals issues its mandate. See Troutt, 288 Fed. App’x at 453 (rejecting applicant’s
argument that the limitation period runs from when the state court mandate was issued
and citing Sup. Ct. R. 13(3), which states that the ninety-day period to file a petition with
the Supreme Court runs from the date of the entry of the judgment, not the issuance
date of the mandate). As a result, the Court finds that the one-year limitation period
began to run on October 14, 2008, the day after Mr. Garcia’s conviction became final.
See United States v. Hurst, 322 F.3d 1256, 1261-62 (10th Cir. 2003) (one-year
limitation period commences the day after expiration of the time for seeking review).
Mr. Garcia did not initiate this action within one year after October 14, 2008. Therefore,
the next question the Court must address 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
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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 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 concede that the one-year limitation period was tolled pursuant to §
2244(d)(2) while Mr. Garcia’s postconviction motion, filed on September 4, 2008, was
pending. (See ECF No. 12, at 7-8). The motion was pending until the Colorado
Supreme Court denied certiorari in the postconviction proceedings on February 18,
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2014. (See ECF No. 12-2). Therefore, the one-year limitation period was tolled from
September 4, 2008 until February 18, 2014. As such, 365 days remained when the
one-year limitation period began to run on February 19, 2014, and the one-year
limitation period ran unabated until it expired on February 19, 2015. See Hurst, 322
F.3d at 1259-61 (one-year limitation period ends on the one-year anniversary of the
date upon which the period began to run). Therefore, the instant Application, filed on
April 9, 2015, appears to be time-barred by approximately seven weeks. Moreover,
even assuming that Mr. Garcia was entitled to the benefit of the prison mailbox rule,
Houston v. Lack, 487 U.S. 266 (1988), the Application would be considered filed on
March 29, 2015, which is still untimely by more than five weeks.
In addition to statutory tolling under § 2244(d)(2), the one-year limitation period
may be tolled for equitable reasons. Holland v. Florida, 560 U.S. 631, 649 (2010).
Generally, equitable tolling is appropriate if the petitioner shows both “that [s]he has
been pursuing h[er] rights diligently” and “that some extraordinary circumstance stood in
h[er] way” and prevented her 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
petitioner must “allege with specificity ‘the steps [s]he took to diligently pursue h[er]
federal claims.’” Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008) (quoting Miller,
141 F.3d at 978).
A prisoner’s lack of knowledge that the state courts have reached a final
resolution of his case can constitute an “extraordinary circumstance” that warrants
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equitable tolling if the prisoner has acted diligently in the matter. See e.g., Woodward v.
Williams, 263 F.3d 1135, 1143 (10th Cir. 2001). Mr. Garcia’s allegations regarding his
lack of knowledge that his conviction was affirmed, however, fail to justify equitable
tolling. Mr. Garcia asserts that he did not receive a mandate verifying the denial of his
petition for writ of certiorari, and thus, he was not aware that his conviction and
sentence was affirmed on direct appeal. As explained above, the record refutes this
assertion. Mr. Garcia was aware that the Colorado Supreme Court denied certiorari
review, because he alleged in his September 2008 postconviction motion that the
Colorado Supreme Court denied his appeal on July 14, 2008 in case number 08SC189.
(ECF No. 12-8, at 2). In addition, the Colorado Supreme Court order denying certiorari
review was sent to Mr. Garcia’s appellate counsel. (See ECF No. 12-9, at 2). See
United States v. Glenn, 61 Fed. App’x 571, 572 (10th Cir. 2003) (declining to apply
doctrine of equitable tolling based on attorney’s failure to notify applicant of court’s
decision on direct appeal); LaCava v. Kyler, 398 F.3d 271, 276 (3d Cir. 2005)
(attorney’s failure to communicate notice of a state court order is not, by itself,
sufficiently “extraordinary” to justify equitable tolling); see also Sigala, 656 F.3d at 1127
(recognizing that state courts did not violate the Constitution by communicating with
defendants through counsel). Thus, Mr. Garcia was on notice that his conviction and
sentence were affirmed by the state courts on direct appeal.
Moreover, even if there had been a substantial dely in Mr. Garcia receiving the
state court of appeals mandate affirming his sentence and conviction, Mr. Garcia fails to
meet his burden of proof in demonstrating that he pursued the process with reasonable
diligence. See e.g., Scott v. Saffle, 8 Fed. App’x 900, 902 (10th Cir. 2001) (finding no
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diligence in inmate’s efforts to discover that his motion for postconviction relief was
denied). The state court record reflects that on October 27, 2015, Mr. Garcia filed a
“Petition to Affirm Conviction,” apparently seeking verification that his conviction and
sentence were affirmed. (See Colorado State Court Data Access Website record, Weld
County Dist. Court Case No. 02CR1342, as of February 5, 2016). Mr. Garcia, however,
took no action to inquire about the status of his conviction and sentence until October
27, 2015, which was seven years after he knew that his petition for writ of certiorari was
denied by the Colorado Supreme Court in his direct appeal proceedings. Thus, Mr.
Garcia has failed to demonstrate the equitable toling is appropriate based on his alleged
lack of receipt of the mandate affirming his conviction and sentence. See e.g., Glenn,
61 Fed. App’x at 572 (applicant was not reasonably diligent in pursuing his claims and,
as a result, was not entitled to the benefit of equitable tolling).
In conclusion, the Application is barred by the one-year limitation period in §
2244(d) and will be dismissed for that reason. The Court also certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal from this order would not be 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 Applicant files a notice of appeal
she also must pay the full $505 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 for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1) is dismissed as untimely. It is
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FURTHER ORDERED that no certificate of appealability shall issue because
Applicant has failed to show that jurists of reason would find it debatable that the district
court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). It is It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this
12th
day of
February
, 2016.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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