Zurita-Cruz v. State of Kansas ( 2022 )

Appellate Case: 21-3224 Document: 010110644611 Date Filed: 02/14/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 14, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
EMILIO ZURITA-CRUZ,
Petitioner - Appellant,
v. No. 21-3224
(D.C. No. 5:21-CV-03035-SAC)
STATE OF KANSAS, (D. Kan.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Petitioner Emilio Zurita-Cruz, a Kansas state prisoner appearing pro se, seeks a
certificate of appealability (COA) in order to appeal the district court’s dismissal of his
28 U.S.C. § 2254 petition for writ of habeas corpus. Because Zurita-Cruz has failed to
satisfy the standards for issuance of a COA, we deny his request and dismiss this matter.
I
On February 8, 2008, Zurita-Cruz was convicted by a jury in the District Court of
Finney County, Kansas, of one count of rape and one count of aggravated criminal
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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sodomy. Zurita-Cruz was sentenced on March 25, 2008, to a term of imprisonment of
288 months. A journal entry of judgment was entered on that same date.
Approximately five years later, on April 15, 2013, Zurita-Cruz wrote a letter to the
state trial court asserting that “for some unknown reason” his appointed attorney, Linda
Eckelman, “failed to file a notice of appeal.” ROA at 88. Zurita-Cruz asked the state
trial court to “help [him] get [his] appeal filed, docketed and appellate counsel
appointed.” Id. The state trial court construed the letter as a motion to file a notice of
appeal out of time, appointed counsel to represent Zurita-Cruz, and held a hearing on the
motion on June 6, 2013. Both Zurita-Cruz and Eckelman testified at the hearing, as did
the interpreter who worked with Zurita-Cruz during the sentencing proceeding.
Zurita-Cruz testified that at the conclusion of the sentencing hearing he asked trial
counsel to file a notice of appeal. Eckelman, however, testified that she discussed the
right to appeal with Zurita-Cruz after sentencing and Zurita-Cruz “did not want an appeal
at that time” and instead wanted to hire a different attorney to represent him. Id. at 106.
The interpreter testified that she had no recollection of Zurita-Cruz asking Eckelman to
file an appeal. At the conclusion of the hearing, the state trial court found the testimony
of Eckelman to be more credible, and it denied Zurita-Cruz’s motion to file a notice of
appeal out of time.
Zurita-Cruz, still represented by appointed counsel, appealed from the state trial
court’s denial of his motion to file a notice of appeal out of time. On September 18,
2015, the Kansas Court of Appeals affirmed the state trial court’s denial of Zurita-Cruz’s
motion to file a notice of appeal out of time. State v. Zurita-Cruz, No. 110,442 (Kan. Ct.
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App. Sept. 18, 2015). The Kansas Supreme Court denied review of the case on June 21,
2016.
On September 12, 2016, Zurita-Cruz filed with the state trial court a pro se motion
for post-conviction relief under Kan. Stat. Ann. § 60-1507 alleging ineffective assistance
of trial and appellate counsel. Zurita-Cruz’s motion was denied on May 17, 2017.
Zurita-Cruz did not appeal from that ruling.
On February 2, 2021, Zurita-Cruz initiated these federal proceedings by filing a
pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In Ground One of
his petition, Zurita-Cruz alleged that his constitutional due process rights were violated
when the state trial court denied his motion to file a late notice of appeal. In Ground Two
of his petition, Zurita-Cruz alleged that Eckelman was ineffective for failing to file a
direct appeal. In Ground Three of his petition, Zurita-Cruz alleged that he received
ineffective assistance of appellate counsel from the attorney who represented him in
appealing the state trial court’s denial of his motion to file a notice of appeal out of time.
In Ground Four of his petition, Zurita-Cruz alleged that his constitutional due process
rights were violated at trial in two respects: (a) because the state trial court failed to
obtain a unanimous poll from the jury regarding their verdict; and (b) because the
prosecutor lied to Eckelman and told her that Zurita-Cruz “would go to prison and do
time” if Zurita-Cruz testified at trial, but that if Zurita-Cruz did not testify, “the
prosecutor would let him go.” Id. at 44.
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The district court directed respondent to file a pre-answer response “addressing (1)
the affirmative defense of timeliness under 28 U.S.C. § 2244(d) and (2) whether
[Zurita-Cruz] defaulted his appeal from his post-conviction motion.” Id. at 70.
Respondent filed a pre-answer response arguing that Zurita-Cruz’s habeas petition
was “time-barred by the statute of limitations.” Id. at 72. In support, respondent argued
that “[u]nder the law in effect at the time of . . . conviction, [Zurita-Cruz] had ten days
(not including weekends) from the date of sentencing to file a notice of appeal.” Id. at 75
(citing Kan. Stat. Ann. § 22-3608(c) (2007)). “Because he did not do so,” respondent
argued, “his conviction became final on that date,” i.e., “April 8, 2008.” Id. Respondent
noted that Zurita-Cruz thereafter “took no action in his case for roughly five years,” and
thus “[t]he one-year statute of limitations for seeking federal relief . . . expired on April 9,
2009.” Id. Respondent argued that “[b]ecause [Zurita-Cruz] did not appeal his
conviction, and because his attempt to appeal out of time was rejected by the state courts,
there were no state proceedings to toll the federal statute of limitations.” Id. at 76.
Finally, respondent argued that Zurita-Cruz did not diligently pursue his claims and
therefore was not entitled to equitable tolling of the statute of limitations.
On August 4, 2021, the district court issued a memorandum and order dismissing
Zurita-Cruz’s petition as untimely. The district court noted that Zurita-Cruz’s petition
was subject to the one-year limitation period set forth in 28 U.S.C. § 2244(d). The
district court in turn concluded that the five-year period between the date his convictions
and sentence became final and the date he notified the state trial court that he wished to
appeal out of time was “sufficient to support a finding that [he] failed to timely present
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this habeas corpus action.” Id. at 132. The district court further concluded that “even if
[it] found that [Zurita-Cruz] w[as] entitled to equitable tolling following his sentence, the
record showe[d] that following the denial of relief in his action under [Kan. Stat. Ann. §]
60-1507,” Zurita-Cruz “did not appeal and waited almost four years before he filed the
present federal petition.” Id. “Either of these delays,” the district court concluded, was
“sufficient to persuade [it] that th[e] petition was not timely filed.” Id. And, the district
court noted, Zurita-Cruz “had not advanced any grounds to support equitable tolling or to
excuse the failure to timely file.” Id. Lastly, the district court concluded that Zurita-Cruz
was not entitled to a COA. Final judgment was entered in the case that same day.
Zurita-Cruz filed a motion to reopen the case. Zurita-Cruz alleged that, due to
Covid-related prison transfers, he had been unaware of respondent’s pre-answer response
and he asked the district court for an opportunity to respond to it. On October 19, 2021,
the district court issued a show cause order granting Zurita-Cruz one month in which to
file a response to respondent’s pre-answer response.
On November 4, 2021, Zurita-Cruz filed a response alleging that his petition
should not be dismissed on statute of limitations grounds because he “is ‘actually
innocent’ of rape . . . and sodomy,” and because he “received ineffective assistance of
trial counsel, direct appeal counsel, post conviction [sic] counsel, and appellate counsel,
who all refused and failed to argue [his] ‘actual innocence.’” Id. at 213. Zurita-Cruz also
argued that “exceptional circumstances” existed “that prevent[ed] him from being
procedurally barred.” Id. In support, Zurita-Cruz repeated his allegations that he asked
Eckelman to file an appeal and that she failed to do so, and he also argued that the
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attorney who represented him on appeal from the state trial court’s denial of his motion to
file an appeal out of time was ineffective due to the manner in which she argued the
appeal. Zurita-Cruz also complained that the state trial court refused to appoint him
counsel to represent him in appealing from the denial of his motion for state
post-conviction relief. Finally, Zurita-Cruz argued that he was entitled to equitable
tolling of the limitations period because he had diligently pursued his claims in the
Kansas state courts.
On November 29, 2021, the district court issued a memorandum and order
denying Zurita-Cruz’s motion to reopen the case. In doing so, the district court
considered and rejected each of the grounds cited by Zurita-Cruz in his response. In
particular, the district court noted that Zurita-Cruz failed to “identify any new, reliable
evidence that supports a finding of factual innocence,” and thus there was no merit to his
claim of actual innocence. Id. at 227. The district court also considered and rejected
each of the grounds for equitable tolling that were cited by Zurita-Cruz.
Zurita-Cruz filed a timely notice of appeal and has since filed an application for
COA with this court.
II
“A state prisoner whose petition for a writ of habeas corpus is denied by a federal
district court does not enjoy an absolute right to appeal.” Buck v. Davis, 137 S. Ct. 759,
773 (2017). Rather, “[f]ederal law requires that he first obtain a COA from a circuit
justice or judge.” Id. (citing 28 U.S.C. § 2253(c)(1)). To obtain a COA, a state prisoner
must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
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§ 2253(c)(2). This requires the prisoner to “sho[w] that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (alteration in original)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). To do so, the prisoner must
show that the district court’s resolution of the claims was “debatable or wrong.” Slack,
529 U.S. at 484. When a district court dismisses a Section 2254 claim on procedural
grounds, a petitioner is entitled to a COA only if he shows both that reasonable jurists
would find it debatable whether he had stated a valid constitutional claim and debatable
whether the district court’s procedural ruling was correct. Id. at 484–85.
Here, the district court dismissed Zurita-Cruz’s petition as untimely. As the
district court noted, 28 U.S.C. § 2244(d)(1)(A) provides, in pertinent part, that “[a] 1-year
period of limitation shall apply to an application for a writ of habeas corpus by a person
in custody pursuant to a judgment of a State court” and “shall run from the latest of . . .
the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” Under Kansas state law, Zurita-Cruz had
ten days “after the judgment of the [state trial] court to appeal.” Kan. Stat. Ann.
§ 22-3608(c) (2007). Because Zurita-Cruz did not file a direct appeal, the judgment in
his case became final on or about April 9, 2008, following the expiration of his ten-day
period for filing a notice of appeal. From that point, the one-year limitations period ran
unabated and expired on or about April 9, 2009.
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To be sure, Zurita-Cruz asserts that he is entitled to equitable tolling of the
limitations period. A state prisoner may be entitled to equitable tolling of the one-year
limitations period if he establishes that (1) he diligently pursued his federal claims, but
(2) extraordinary circumstances prevented him from filing a timely federal habeas
petition. Holland v. Florida, 560 U.S. 631, 649 (2010). The district court in this case
concluded, in pertinent part, that Zurita-Cruz could not establish diligent pursuit of his
federal claims because he waited approximately five years from the date his convictions
became final before he contacted the state trial court about filing a notice of appeal out of
time. Our review of the record on appeal persuades us that reasonable jurists could not
disagree as to this conclusion.
III
The application for COA is therefore DENIED and the matter is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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