Vigil, Jr. v. Jones ( 2008 )


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  •                                                                         FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
    
                                                                     December 11, 2008
                         UNITED STATES COURT OF APPEALS
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
                                       TENTH CIRCUIT
    
    
     FRANK VIGIL, JR.,
    
              Petitioner-Appellant,
    
     v.
                                                            No. 08-1233
     SUSAN JONES, Warden;                           (D.C. No. 08-cv-00509-ZLW)
     THE ATTORNEY GENERAL OF                                 (D. Colo.)
     THE STATE OF COLORADO,
    
              Respondents-Appellees.
    
    
    
                ORDER DENYING CERTIFICATE OF APPEALABILITY *
    
    
    Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.
    
    
    
          Frank Vigil, Jr. (“Vigil”), a Colorado state prisoner appearing pro se,
    
    applies for a certificate of appealability (“COA”) in order to appeal the district
    
    court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely.
    
    Vigil also moves for leave to proceed in forma pauperis (“ifp”). Exercising
    
    
    
    
          *
            This order is not binding precedent except under the doctrines of law of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.
    jurisdiction under 28 U.S.C. § 2253(c)(1), we deny a COA, deny the motion to
    
    proceed ifp, and dismiss Vigil’s appeal.
    
    I.    Procedural background
    
          In 1998, when he was sixteen years old, Vigil was convicted by a Colorado
    
    jury of first-degree murder, second-degree kidnaping involving sexual assault,
    
    first-degree assault, conspiracy to commit first-degree murder, conspiracy to
    
    commit second-degree kidnaping, and crimes of violence. He was sentenced to
    
    life in prison without parole on the murder count, and a total of 150 years’
    
    imprisonment on the remaining counts. On direct appeal, Vigil argued that he had
    
    been denied a fair trial because of the trial court’s admission of highly prejudicial
    
    testimony and photographs. The Colorado Court of Appeals affirmed his
    
    convictions, and the Colorado Supreme Court denied certiorari review. Ninety
    
    days later, on March 27, 2000, his conviction became final. 1 After more than six
    
    years had elapsed, on October 25, 2006, Vigil filed a motion for postconviction
    
    relief under Rule 35(c) of the Colorado Rules of Criminal Procedure. The trial
    
    court denied that motion, the Colorado Court of Appeals affirmed the denial, and
    
    on October 8, 2007, the Colorado Supreme Court denied certiorari review. Vigil
    
    filed his § 2254 petition with the district court on March 5, 2008.
    
    
    
    
          1
          Vigil did not file a petition for writ of certiorari in the United States
    Supreme Court.
    
                                               -2-
          In his habeas petition, Vigil made five claims: (1) that he was denied due
    
    process when the trial court did not order an inquiry into his competency, despite
    
    his age (sixteen) when he was tried and convicted; (2) that he received ineffective
    
    assistance of counsel at trial and on appeal; (3) that there exists newly discovered
    
    evidence of his innocence; (4) that he was wrongfully convicted; and (5) that
    
    there was justifiable excuse for his delay in filing the habeas petition because he
    
    had been incompetent, due to his age and to having been held in solitary
    
    confinement for much of his imprisonment, until “at least 2006.” Respondents
    
    filed a Pre-Answer Response arguing that Vigil’s petition was barred by the one-
    
    year limitation period, 28 U.S.C. § 2244(d), 2 and the exhaustion requirement, 28
    
          2
            Section 2244(d)(1) provides 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 the judgment of a State court.” The statutory period begins to run on
    the latest of the following:
           (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.
    28 U.S.C. § 2244(d)(1). Finally, the “time during which a properly filed
    application for State post-conviction or other collateral review with respect to the
                                                                            (continued...)
    
                                             -3-
    U.S.C. § 2254(b)(1)(A), imposed by the Antiterrorism and Effective Death
    
    Penalty Act (“AEDPA”).
    
          Concluding that Vigil had asserted no reason, under § 2244(d)(1)(B)-(D),
    
    that the limitation period should have begun to run later than the date on which
    
    his conviction became final, and that he had made no argument sufficient to
    
    support equitable tolling of the limitation period or to demonstrate his actual
    
    innocence, the district court found that his habeas petition should have been filed
    
    no later than March 27, 2001. As a result, the district court dismissed his petition
    
    as procedurally barred by AEDPA’s one-year statute of limitations. The district
    
    court later denied Vigil’s request for a COA and his motion to proceed ifp on
    
    appeal, finding that his appeal was not taken in good faith because he had not
    
    shown the existence of a reasoned, nonfrivolous argument on the law and facts in
    
    support of the issues raised. (Order Denying Leave; Order Denying COA.) This
    
    application for COA and motion for leave to proceed ifp followed.
    
    II.   Standard for issuance of COA
    
          “A COA is a jurisdictional prerequisite to our review.” Clark v. Oklahoma,
    
    
    468 F.3d 711
    , 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 
    537 U.S. 322
    ,
    
    336 (2003)). We will issue a COA “only ‘if the applicant has made a substantial
    
    showing of the denial of a constitutional right.’” United States v. Silva, 
    430 F.3d 2
            (...continued)
    pertinent judgment or claim is pending shall not be counted toward any period of
    limitation under this subsection.” Id. § 2244(d)(2).
    
                                            -4-
    1096, 1100 (10th Cir. 2005) (quoting 28 U.S.C. § 2253(c)(2)). “To make this
    
    showing, [Vigil] must establish that ‘reasonable jurists could debate whether . . .
    
    the petition should have been resolved by the district court in a different manner
    
    or that the issues presented were adequate to deserve encouragement to proceed
    
    further.’” Clark, 468 F.3d at 713 (quoting Slack v. McDaniel, 
    529 U.S. 473
    , 484
    
    (2000) (alteration omitted)). Furthermore, because the district court dismissed
    
    Vigil’s habeas petition on procedural grounds, Vigil “must demonstrate both that
    
    jurists of reason would find it debatable whether the petition states a valid claim
    
    of the denial of a constitutional right and that jurists of reason would find it
    
    debatable whether the district court was correct in its procedural ruling.” Id.
    
    (quotation omitted).
    
    III.   Discussion
    
           Because Vigil’s § 2254 motion and application for COA are pro se, we
    
    construe them liberally. See Hall v. Scott, 
    292 F.3d 1264
    , 1266 (10th Cir. 2002)
    
    (citing Haines v. Kerner, 
    404 U.S. 519
    , 520-21 (1972)).
    
           Vigil raises three arguments in his application for COA: (1) that the one-
    
    year limitation period imposed by 28 U.S.C. § 2244(d) should be equitably tolled
    
    until 2007 because he was denied effective assistance of counsel in seeking post-
    
    conviction relief; (2) that the one-year limitation period imposed by 28 U.S.C.
    
    § 2244(d) should be equitably tolled until 2007 due to his incompetence, which
    
    derived from both his age and his incarceration in solitary confinement; and (3)
    
                                              -5-
    that he was denied due process of law when he was tried, convicted and sentenced
    
    while he was incompetent due to his age. We address each argument in turn.
    
          A.     Equitable tolling due to ineffective assistance of counsel in seeking
                 post-conviction relief
    
          To be eligible for equitable tolling, Vigil must make a two-pronged
    
    demonstration: “(1) that he has been pursuing his rights diligently, and (2) that
    
    some extraordinary circumstance stood in his way,” Yang v. Archuleta, 
    525 F.3d 925
    , 928 (10th Cir. 2008) (quoting Lawrence v. Florida, 
    549 U.S. 327
    , 
    127 S. Ct. 1079
    , 1085 (2007)), so as to prevent him from timely filing his habeas petition.
    
    Vigil’s burden in making this demonstration is a heavy one: we will apply
    
    equitable tolling only if he is able to “‘show specific facts to support his claim of
    
    extraordinary circumstances and due diligence.’” Id. (quoting Brown v. Barrow,
    
    
    512 F.3d 1304
    , 1307 (11th Cir. 2008)).
    
          Vigil first argues that AEDPA’s one-year limitations period should be
    
    equitably tolled because he has not received effective assistance of counsel while
    
    seeking post-conviction relief. (Doc. 8 (Reply to Resp.) at 1; Opening Br. at 3.)
    
    However, because there is no right to counsel in post-conviction proceedings, “a
    
    petitioner cannot claim constitutionally ineffective assistance of counsel in such
    
    proceedings.” Coleman v. Thompson, 
    501 U.S. 722
    , 752 (1991); see also
    
    Pennsylvania v. Finley, 
    481 U.S. 551
    , 555 (1987) (“We have never held that
    
    prisoners have a constitutional right to counsel when mounting collateral attacks
    
    
                                             -6-
    upon their convictions . . . . Our cases establish that the right to appointed
    
    counsel extends to the first appeal of right, and no further.”); United States v.
    
    Prows, 
    448 F.3d 1223
    , 1229 (10th Cir. 2006).
    
          Vigil also asserts that, as a pro se litigant, he should be excused from
    
    knowledge of AEDPA’s one-year limitation period (Opening Br. at 3). However,
    
    in the absence of a showing of “specific facts to support [a] claim of
    
    extraordinary circumstances and due diligence,” Yang, 525 F.3d at 928, pro se
    
    status and ignorance of the law do not entitle Vigil to equitable tolling, see Marsh
    
    v. Soares, 
    223 F.3d 1217
    , 1220 (10th Cir. 2000). Vigil has made no such showing
    
    of specific facts.
    
          Because Vigil does not have a right to counsel in seeking post-conviction
    
    relief, and because he has not shown extraordinary circumstances related to his
    
    pro se status, we deny a COA as to this issue.
    
          B.     Equitable tolling due to incompetence
    
                 i.      Incompetence due to age
    
          Vigil argues that we should equitably toll the one-year limitation period
    
    because he was only sixteen years old when he was convicted of his crimes, and
    
    did not mature at the normal rate because he was immediately held in solitary
    
    confinement (Doc. 3 (habeas petition) at 9-10; Application at 4). Vigil relies
    
    heavily on Tate v. State, 
    864 So. 2d 44
     (Fla. Dist. Ct. App. 2003). In Tate, the
    
    Florida Court of Appeals held that due process required a competency evaluation,
    
                                             -7-
    by the trial court, for a twelve-year-old murder defendant with an IQ of
    
    approximately ninety. Id. at 48. Vigil has failed to demonstrate, however, that he
    
    was or is in any way similar to a twelve-year-old with an IQ of 90. In addition,
    
    nothing in the record constitutes such a “factual showing of mental incapacity,”
    
    Lawrence, 127 S. Ct. at 1086.
    
          Furthermore, for the purposes of acting on one’s own behalf in a court of
    
    law, the age of majority in Colorado is eighteen. Colo. Rev. Stat. Ann. § 13-22-
    
    101 (West 2008). Colorado’s Juvenile Justice System statute thus defines “child”
    
    as “a person under eighteen years of age.” Id. § 19-1-103(18). When Vigil’s
    
    conviction became final and the § 2241(d) limitation period began to run on
    
    March 27, 2000, he was nineteen years old. Therefore, his argument in this
    
    regard lacks merit.
    
                 ii.      Incompetence due to solitary confinement
    
          Vigil also argues that we should equitably toll the limitation period until
    
    2007 because he has been held in solitary confinement for all but eight months of
    
    his incarceration, and was incompetent while he was so held. (Application at 4.)
    
    Vigil’s own explanation of his situation defeats this argument, as the eight-month
    
    span in which he was not in solitary confinement ran from November 28, 2002,
    
    through July 1, 2003. (Doc. 3 (habeas petition) at 10.) Yet he began filing his
    
    motions for post-conviction relief on October 25, 2006, when he was again in
    
    
    
    
                                             -8-
    solitary confinement. Clearly, then, being held in solitary confinement did not
    
    render Vigil incompetent to pursue habeas relief.
    
           Because Vigil has not shown extraordinary circumstances or due diligence
    
    related to his claims of incompetence, we deny a COA as to this issue.
    
           C.     Denial of due process due to incompetence at time of conviction
    
           Because we conclude that the district court correctly dismissed Vigil’s
    
    habeas petition as procedurally barred under 28 U.S.C. § 2244(d), we do not reach
    
    this issue.
    
    IV.    Conclusion
    
           For the foregoing reasons, and because Vigil has failed to set forth facts
    
    demonstrating his actual innocence, we DENY Vigil’s request for a certificate of
    
    appealability and DISMISS his appeal. Agreeing with the district court’s finding
    
    that the appeal was not taken in good faith, we also DENY Vigil’s motion for
    
    leave to proceed ifp.
    
    
    
                                            ENTERED FOR THE COURT
    
    
    
                                            David M. Ebel
                                            Circuit Judge
    
    
    
    
                                             -9-