Hinojos v. People of the State of Colorado ( 2022 )

Appellate Case: 22-1001 Document: 010110756072 Date Filed: 10/20/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 20, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
DAROLD NORMAN HINOJOS,
Petitioner - Appellant,
v. No. 22-1001
(D.C. No. 1:21-CV-01333-LTB-GPG)
PEOPLE OF THE STATE OF (D. Colo.)
COLORADO; ATTORNEY GENERAL
STATE OF COLORADO,
Respondents - Appellees.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges.
_________________________________
Darold Hinojos, through counsel, requests a certificate of appealability (COA) to
appeal from the district court’s decision denying his 28 U.S.C. § 2254 habeas application
and dismissing the action as untimely. We deny a COA and dismiss this matter.
BACKGROUND
A jury convicted Mr. Hinojos of manslaughter, second degree burglary, and felony
murder, and the state trial court sentenced him to life in prison. Mr. Hinojos’ Colorado
*
This order is not binding precedent except under the doctrines of law of the case,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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convictions became final on June 20, 2016. He is serving his term of imprisonment in
state custody.
A prisoner has a one-year period to file federal habeas claims, see 28 U.S.C.
§ 2244(d)(1), but that period excludes time during which a state postconviction petition is
pending, see id. § 2244(d)(2). On May 2, 2017, Mr. Hinojos filed a postconviction
motion under Colorado Rule of Criminal Procedure 35(c). The Rule 35(c) motion was
under consideration by the state courts until the Colorado Supreme Court denied a
petition for certiorari review on May 18, 2020.
The time between June 20, 2016, and May 2, 2017, did not toll the running of the
limitations period, so 315 days of the one-year period had elapsed when Mr. Hinojos filed
his Rule 35(c) motion. That meant that even though the limitations period was tolled
while the Rule 35(c) motion was pending, Mr. Hinojos had only 50 days remaining—or
until July 7, 2020—to file his federal habeas claims once the Colorado Supreme Court
denied certiorari.1
Mr. Hinojos did not file his § 2254 application until May 14, 2021.2 The
magistrate judge directed the State to file a pre-answer response regarding exhaustion,
1
The magistrate judge’s report and recommendation stated Mr. Hinojos’ deadline
was July 17, 2020. This appears to be an error, because 50 days after May 18, 2020, was
July 7, 2020.
2
The § 2254 application asserted six grounds for relief: (1) a speedy trial
violation due to unconstitutional amendments to the complaint; (2) a double jeopardy
violation through a defective mittimus; (3) a due process violation by admitting hearsay;
(4) a due process violation by failing to suppress an out-of-court identification; (5) a
violation of the right to counsel by failing to appoint alternative counsel upon request;
and (6) reversible error by failing to appoint counsel in the Rule 35(c) proceeding.
2
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timeliness, and procedural default, if it intended to rely on those defenses. The State’s
response identified one defense—that Mr. Hinojos filed his application after the one-year
statutory deadline in § 2244(d)(1). In reply, Mr. Hinojos argued his application was
timely, or in the alternative, he was entitled to equitable tolling based on the COVID-19
pandemic. He also invoked the actual-innocence exception to § 2244(d) discussed in
McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).
The magistrate judge rejected Mr. Hinojos’ arguments and recommended the
district court deny the application and dismiss the action as untimely. After Mr. Hinojos
filed timely objections, the district court reviewed the matter de novo. Adopting the
magistrate judge’s recommendation, the district court denied the § 2254 application and
dismissed the action as untimely. It further denied a COA.
DISCUSSION
Mr. Hinojos must obtain a COA for this court to review the district court’s denial
of his § 2254 application and dismissal of the action. See 28 U.S.C. § 2253(c)(1)(A). To
do so, he must make “a substantial showing of the denial of a constitutional right.” Id.§ 2253(c)(2). The district court decided Mr. Hinojos’ § 2254 application on the
procedural ground of timeliness. That means for a COA to issue in this case, he must
show not only “that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right,” but also “that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable jurist could not
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conclude either that the district court erred in dismissing the petition or that the petitioner
should be allowed to proceed further.” Id.Before this court, Mr. Hinojos does not argue his § 2254 application was timely.
Instead, he contends the district court erred (1) in declining to apply equitable tolling,
and (2) in rejecting his actual-innocence allegations as a gateway to allow consideration
of his untimely claims. Having considered Mr. Hinojos’ arguments, we conclude
reasonable jurists would not debate whether the district court was correct in making the
now-challenged rulings.
I. Equitable Tolling
“[Section] 2244(d) is subject to equitable tolling in appropriate cases.” Holland v.
Florida, 560 U.S. 631, 645 (2010). But “a [habeas] petitioner is entitled to equitable
tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing.” Id. at
649 (internal quotation marks omitted). “Equitable tolling is a rare remedy to be applied
in unusual circumstances, not a cure-all for an entirely common state of affairs.” Yang v.
Archuleta, 525 F.3d 925, 929 (10th Cir. 2008) (internal quotation marks omitted). “An
inmate bears a strong burden to show specific facts to support his claim of extraordinary
circumstances and due diligence.” Id. at 928 (brackets and internal quotation marks
omitted).
Mr. Hinojos’ deadline for filing his § 2254 application was July 7, 2020. As
extraordinary circumstances, he pointed to the COVID-19 pandemic, which started in
March 2020. Before the magistrate judge, he alleged his prison “went on quarantine
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lockdown on April 6, 2020” and “[l]aw [l]ibrary privileges were suspended for the
majority of the time from April 6, 2020 until the facility opened back up in July 2021.”
Aplt. App. at 28. “The facility was on total lock down and [he] had no ability to have
visitors or move about the facility, especially the law library through the Spring of 2021.”
Id. He stated that “[he] was able to retain counsel and assist in preparing the Writ in the
Fall of 2020 but his efforts were significantly affected because of his inability to
correspond with anyone outside the State-run facility.” Id. at 29. In his objections before
the district court, he added that Colorado’s governor “[e]ssentially shutter[ed] the State”
starting in March 2020. Id. at 44.
We are sympathetic to Mr. Hinojos’ situation, but he is not entitled to relief under
applicable law. No reasonable jurist would debate whether Mr. Hinojos satisfied his
“strong burden to show specific facts to support his claim of extraordinary
circumstances.” Yang, 525 F.3d at 929. We do not hold that restrictions resulting from
the COVID-19 pandemic could never constitute an extraordinary circumstance. But
Mr. Hinojos—who was represented by counsel here and in the district court—advanced
only broad general assertions about pandemic restrictions at his facility. For example, he
stated that the facility was on lockdown and he was unable to correspond with anyone
outside the prison. He did not, however, identify specific facts to support these general
assertions, such as by describing the terms of the prison’s lockdown policies or by
supplying any other facts explaining just how the prison restricted his ability to
communicate, particularly with counsel, during the pandemic. In other cases where an
inmate has not sufficiently shown specific facts to support his claim of extraordinary
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circumstances, this court has declined to apply equitable tolling. See Al-Yousif v. Trani,
779 F.3d 1173, 1179-80 (10th Cir. 2015) (reversing application of equitable tolling
because inmate did not adequately explain or support claim that attorney was misled by
court document); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (rejecting equitable
tolling for lack of specificity).
Nor would reasonable jurists debate whether Mr. Hinojos “allege[d] with
specificity the steps he took to diligently pursue his federal claims.” Yang, 525 F.3d at
930 (internal quotation marks omitted). He did not discuss what steps, if any, he took to
pursue his federal claims between May 18 and July 7, the remainder of his limitations
period. He also did not explain why he was able to contact and retain counsel in the fall
of 2020, but not earlier, or why his § 2254 application was not filed until May 14, 2021,
months after he retained counsel. Cf. United States v. Gabaldon, 522 F.3d 1121, 1126-27
(10th Cir. 2008) (where prison officials seized inmate’s materials weeks before his filing
deadline, inmate established diligence by describing in detail both the actions he took to
prepare his motion during the limitation period and his efforts to retrieve the seized
documents before his deadline, and by providing evidence in support).
II. Actual-Innocence Exception
“[A]ctual innocence, if proved, serves as a gateway through which a petitioner
may pass” if his first § 2254 application otherwise would be impeded by the “expiration
of the statute of limitations.” McQuiggin, 569 U.S. at 386. But “[a] petitioner does not
meet the threshold requirement unless he persuades the district court that, in light of the
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new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.” Id. (internal quotation marks omitted).
“This standard requires courts to engage in a counterfactual analysis, determining
whether a jury confronted with all the evidence now known would still have convicted
the petitioner of the crime charged.” Taylor v. Powell, 7 F.4th 920, 927 (10th Cir. 2021),
cert. denied, 142 S. Ct. 2819 (2022). “An actual innocence claim must be based on more
than the petitioner’s speculations and conjectures. The gateway claim must be credible
and requires new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not presented at
trial.” Id. (internal quotation marks omitted). “To be ‘new,’ the evidence need only be
evidence that was not considered by the fact-finder in the original proceedings.” Id.When the State invoked § 2244(d), Mr. Hinojos replied, “Applicant has filed the
Writ of Habeas Corpus because he maintains his innocence and the Statute of Limitations
does not apply to his innocence plea and review request. See McQuiggin v. Perkins,
569 US 383 (2013).” Aplt. App. at 29. Although Mr. Hinojos maintained his innocence,
he gave no further information about actual innocence. The magistrate judge
recommended declining to apply the actual-innocence gateway because Mr. Hinojos
“fails to show that he is actually, factually innocent of the crimes he has been convicted
of committing. He does not demonstrate it is more likely than not, in light of new
evidence, that no reasonable juror would have found him guilty beyond a reasonable
doubt.” Id. at 41-42 (citation and internal quotation marks omitted).
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Mr. Hinojos then filed his objections to the magistrate judge’s report and
recommendation. As to actual innocence, he stated only that he
maintains his innocence in this matter as he was never identified as the
person who caused the injuries leading to the death of the victim and on
page 11 of the Petition, he explains how the identification of him was not
correct and that identification caused him to be convicted of the crimes.
Id. at 47. The district court summarily concluded the recommendation was correct.
In light of Mr. Hinojos’ conclusory and undeveloped assertions in both his reply
before the magistrate judge and his objections before the district court, no reasonable
jurist would debate the district court’s decision not to allow him to pass through the
actual-innocence gateway. Mr. Hinojos has not identified any new evidence to support
his allegation. See Taylor, 7 F.4th at 927.3 Nor did he engage in analysis that would
allow the court to “determin[e] whether a jury confronted with all the evidence now
known would still have convicted [him] of the crime charged.” Id.
CONCLUSION
We deny a COA and dismiss this matter.
Entered for the Court
Veronica S. Rossman
Circuit Judge
3
Referring to pages 11 and 12 of the § 2254 application, Mr. Hinojos’ combined
opening brief and application for COA asserts that he “has provided new and important
evidence and argument relating to a false identification of him that tainted the whole jury
trial process.” Aplt. Opening Br./Appl. for COA at 17. But neither the brief nor the cited
pages of the § 2254 application identify any new evidence.
8