Trujillo, Sr. v. Tapia , 359 F. App'x 952 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
January 12, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JESSE TRUJILLO, SR.,
Petitioner-Appellant,
v.
GEORGE TAPIA, Warden, and No. 09-2185
ATTORNEY GENERAL OF THE (D.C. No. 09-cv-59-JCH-RLP)
STATE OF NEW MEXICO, (D.N.M.)
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.
On August 31, 2004, Jesse Trujillo was convicted in New Mexico state
court of larceny, non-residential burglary, and conspiracy to commit non-
residential burglary. He was sentenced to a prison term of ten and a half years,
less one day. He appealed his conviction in state court, arguing that the evidence
presented against him could support only a charge of shoplifting, not burglary,
and that the trial court erroneously admitted unfairly prejudicial evidence of
uncharged conduct. The New Mexico Court of Appeals affirmed Mr. Trujillo’s
*
This order is not binding precedent except under the doctrines of law of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.
conviction, and the New Mexico Supreme Court denied his petition for a writ of
certiorari on April 14, 2005.
Nearly three and a half years later, on October 7, 2008, Mr. Trujillo sought
collateral relief in New Mexico state court. The New Mexico district court
summarily dismissed his petition for a writ of habeas corpus, and the New Mexico
Supreme Court again denied Mr. Trujillo’s petition for a writ of certiorari.
It was not until January 22, 2009 that Mr. Trujillo brought his case to
federal district court by filing a petition for a writ of habeas corpus pursuant to 28
U.S.C § 2254. A magistrate judge recommended dismissal of his petition as time-
barred. The district court adopted the magistrate judge’s report and dismissed
Mr. Trujillo’s petition.
Mr. Trujillo now seeks from us a certificate of appealability (“COA”) to
appeal the district court’s dismissal of his § 2254 petition. We may issue a COA
only if the petitioner makes a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here, the district court
dismisses a § 2254 petition on procedural grounds, we may issue a COA only if
“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). We
conclude that the district court was unquestionably correct in holding Mr.
Trujillo’s petition time-barred, and thus deny his application for a COA and
dismiss this appeal.
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A petitioner seeking federal habeas relief under § 2254 generally must
bring his motion within one year from the date on which his conviction “became
final by the conclusion of direct review or the expiration of the time for seeking
such review.” 28 U.S.C. § 2244(d)(1)(A). In Mr. Trujillo’s case, the New
Mexico Supreme Court denied his petition for a writ of certiorari on April 14,
2005, after which he had ninety days to seek review by the United States Supreme
Court. His one-year window to file a § 2254 petition, then, opened in July 2005
and closed in July 2006. Mr. Trujillo filed his petition on January 22, 2009, more
than two and a half years after that window closed. Accordingly, unless
something acted to toll the one-year limitations period, Mr. Trujillo’s petition was
plainly time-barred.
Mr. Trujillo’s application for a COA and opening brief on appeal don’t
squarely challenge the district court’s conclusion that his petition was time-
barred; rather, both simply reiterate his arguments on the merits concerning
sufficiency and admission of evidence. We read pro se filings with particular
solicitude, however, see Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th
Cir. 2007), and detect two possible arguments for tolling the one-year limitations
period. Neither is availing.
First, Mr. Trujillo argued in his objections in the district court to the
magistrate judge’s report and recommendation that he didn’t know when his
direct appeal was denied, and thus didn’t know when the one-year clock to file a
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§ 2254 petition started ticking, because his appellate attorney failed to keep him
apprised of the status of his appeal, despite his claimed attempts to contact her.1
Accordingly, he asked the district court to use June 2008 — when he claims he
finally learned his appeal had been denied in state court — rather than July 2005,
as the appropriate date for calculating his one-year window to file under § 2254.
We take this as urging equitable tolling of the limitations period, which “is only
available when an inmate diligently pursues his claims and demonstrates that the
failure to timely file was caused by extraordinary circumstances beyond his
control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Having
reviewed the record, we conclude that Mr. Trujillo hasn’t satisfied these
requirements.
Mr. Trujillo has failed to demonstrate that he diligently pursued his federal
habeas claims. Although he has claimed he made various but unsuccessful efforts
to contact his state direct-appeal attorney, Mr. Trujillo has given no indication
that he ever inquired with the state courts about the status of his appeal during
that period. A simple telephone call or letter to a court clerk’s office might have
informed him when his appeal was denied and thus given him the information
necessary to determine the deadline for filing his § 2254 petition. Neither has he
1
For her part, Mr. Trujillo’s attorney stated in a June 2, 2008 letter to him
that she had in fact sent him communications during his appeal and that she had
not received the letters he claimed to have sent her during the previous three
years.
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pointed to any discernable action — such as seeking out representation or
preparing pro se materials — he took to pursue a federal § 2254 petition for a
period of over three years. Accordingly, we must conclude that he didn’t
diligently pursue his claims, and for that reason he isn’t entitled to equitable
tolling of the one-year limitations period.
Additionally, even assuming without deciding that Mr. Trujillo is correct
some attorney negligence took place here, that will rarely qualify as an
extraordinary circumstance meriting equitable tolling, because “clients, even if
incarcerated, must ‘vigilantly oversee,’ and ultimately bear responsibility for,
their attorneys’ actions or failures.” Fleming v. Evans, 481 F.3d 1249, 1255-56
(10th Cir. 2007) (quoting Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003)).
Particularly egregious attorney misconduct, such as repeated, deceitful assurances
that a habeas petition would soon be filed, may entitle a petitioner to equitable
tolling. See id. at 1256-57. But an attorney’s mere alleged failure to inform a
client of the date on which his appeal was denied falls well short of that
threshold. See, e.g., Broadus v. Hartley, 2009 WL 2861153, at *3 (10th Cir.
Sept. 8, 2009) (unpublished). For that additional reason, the district court
correctly refused to apply equitable tolling.
Second, we note that the limitations period doesn’t run while a properly
filed application for state collateral review is pending. See 28 U.S.C.
§ 2244(d)(2). Though Mr. Trujillo did apply for collateral review in New Mexico
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state court, that petition wasn’t filed until October 7, 2008. It thus could not have
tolled the limitations period for his § 2254 petition, which had already expired in
July 2006. Any argument Mr. Trujillo might make for statutory tolling, then, is
unavailing.
Because neither equitable nor statutory tolling served to extend the time in
which Mr. Trujillo could file a habeas petition under § 2254, reasonable jurists
could not debate whether his petition was time-barred. Accordingly, we deny his
application for a COA and dismiss this appeal.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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