Tolbert v. DeLatorre ( 2022 )

Appellate Case: 22-2087 Document: 010110749204 Date Filed: 10/05/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 5, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
CURTIS TOLBERT,
Petitioner - Appellant,
v. No. 22-2087
(D.C. No. 1:20-CV-00009-WJ-KK)
MIKE DELATORRE; ATTORNEY (D. N.M.)
GENERAL FOR THE STATE OF NEW
MEXICO,
Respondents - Appellees.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________
Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
Curtis Tolbert, a New Mexico prisoner proceeding pro se, 1 filed a 28 U.S.C.
§ 2254 petition challenging his convictions stemming from the sexual abuse, including
rape, of his fourteen-year-old daughter. Mr. Tolbert pleaded no contest to eleven counts
in 2011 and was sentenced to a term of sixty-nine years of incarceration, with fifty-four
years suspended. The district court dismissed Mr. Tolbert’s petition and denied a
*
This order is not binding precedent except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
1
Because Mr. Tolbert is proceeding pro se, “we liberally construe his filings, but
we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
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certificate of appealability (“COA”) because it held the petition was untimely where
Mr. Tolbert filed the petition more than one year after his convictions became final and
no other provision or doctrine governing timeliness applied. Mr. Tolbert asks us to issue a
COA, arguing his petition should be subject to equitable tolling because he only recently
discovered the legal basis for his claim. Concluding reasonable jurists could not debate
the district court’s dismissal of Mr. Tolbert’s § 2254 petition, we deny a COA and
dismiss this matter.
I. BACKGROUND
New Mexico authorities arrested Mr. Tolbert in July 2009 for raping his fourteen-
year-old daughter. His daughter informed a neighbor that her father had sexually
penetrated her, and the neighbor bought her a recording device which the daughter used
to record a conversation with her father about the sexual abuse. The neighbor then
reached out to a friend about the situation, who contacted the police, leading to
Mr. Tolbert’s arrest. Mr. Tolbert pleaded no contest to eleven felony counts based on the
sexual abuse and bribing a witness. On April 18, 2011, the New Mexico state district
court sentenced Mr. Tolbert to sixty-nine years of incarceration with fifty-four years
suspended, for an actual term of fifteen years. The court entered judgment the same day,
and Mr. Tolbert did not appeal his convictions.
On November 9, 2011, Mr. Tolbert filed a habeas corpus petition in state district
court, arguing he had received ineffective assistance of counsel and his pleas were
involuntary. The court denied his petition on October 15, 2015, and he sought an
2
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extension of time to petition for certiorari in the Supreme Court of New Mexico. The
court granted his motion, allowing him an extension to file his petition for certiorari
through January 13, 2016. He filed his petition on January 19, 2016,2 and the court
denied the petition as untimely on March 13, 2017. 3 On July 25, 2019, Mr. Tolbert filed a
second state habeas corpus petition, alleging it was illegal for the State to use his
daughter’s tape recording of their conversation as evidence. The state district court
denied the petition. Mr. Tolbert sought certiorari review, but the Supreme Court of New
Mexico denied his petition on November 8, 2019.
On December 31, 2019, Mr. Tolbert filed the 28 U.S.C. § 2254 petition at issue
today with the federal district court, repeating his previous arguments that he had
received ineffective assistance of counsel, his pleas were involuntary, and the recording
2
See Docket, Tolbert v. State, Supreme Court of New Mexico, S-1-SC-35597,
https://caselookup.nmcourts.gov/caselookup/app, entry dated Jan. 19, 2016 (last visited
Sept. 30, 2022). We take judicial notice of the docket in Mr. Tolbert’s state post-
conviction proceedings. See United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir.
2010) (recognizing a court may take judicial notice of docket information from another
court); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (“Although we
are not obliged to do so, we may exercise our discretion to take judicial notice of
publicly-filed records in our court and certain other courts concerning matters that bear
directly upon the disposition of the case at hand.”).
3
Mr. Tolbert disputes that he untimely filed the petition for certiorari, contending
that he delivered the petition by certified mail and “it was delivered on January 11, 2016
to the court.” ROA at 34. But when reviewing a § 2254 application, we presume a state
court’s factual findings are correct, and the applicant can rebut this presumption only
with “clear and convincing evidence.” 28 U.S.C. § 2254 (e)(1). Mr. Tolbert has presented
no evidence to contradict the state court’s finding that his petition for certiorari was
untimely.
3
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used as evidence by the State violated federal law. 4 On February 24, 2022, Mr. Tolbert
submitted a motion to amend his petition. In his amended petition, Mr. Tolbert alleged
the trial judge had participated in a discussion about plea negotiations with his attorney
and the prosecutor in violation of Federal Rule of Criminal Procedure 11(c)(1). 5
Mr. Tolbert’s former defense attorney disclosed in an affidavit dated April 14, 2014, that
she and the prosecutor in Mr. Tolbert’s case had discussed their plea deal negotiations
with the judge, and the judge “informed [them] that she was inclined to sentence
Mr. Tolbert to 12–15 years incarceration, provided there was a plea agreed to that
contained this range.” ROA at 59–60. Mr. Tolbert stated he had only recently become
aware that the judge’s participation in this conversation violated Federal Rule of Criminal
Procedure 11(c)(1) and New Mexico Rule of Criminal Procedure 5-304(A)(1) after Fast
Case Law Library was added to the education computers at his prison.
4
Although the district court did not file stamp the petition until January 6, 2020,
Mr. Tolbert signed it on December 31, 2019, and we “treat the petition as placed in the
hands of prison authorities on the same day it was signed.” Marsh v. Soares, 223 F.3d
1217, 1218 n.1 (10th Cir. 2000).
5
See Fed. R. Crim. P. 11(c)(1) (“An attorney for the government and the
defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a
plea agreement,” but “[t]he court must not participate in these discussions.”). Because
Mr. Tolbert’s pleadings are subject to liberal construction, we interpret his claim that the
judge in his state criminal proceedings violated Federal Rule of Criminal Procedure
11(c)(1) to also refer to a violation of New Mexico Rule of Criminal Procedure 5-
304(A)(1). Mr. Tolbert was convicted in state district court, so the New Mexico Rules of
Criminal Procedure, rather than the Federal Rules of Criminal Procedure, governed the
proceedings. New Mexico Rule of Criminal Procedure 5-304(A)(1) states “[a] judge who
presides over any phase of a criminal proceeding shall not participate in plea
discussions.”
4
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The district court responded to Mr. Tolbert’s petition with an order requesting
Mr. Tolbert “to show cause why his Petition should not be dismissed as untimely.” Id. at
92. Regarding references in Mr. Tolbert’s petition to the difficulty he encountered in
discovering applicable law, the district court advised Mr. Tolbert that he needed to
“provide ‘specificity regarding the alleged lack of access and the steps he took to
diligently pursue his federal’ petition.” Id. at 97 (quoting Miller v. Marr, 141 F.3d 976,
978 (10th Cir. 1998)). Mr. Tolbert responded to the order to show cause with a motion to
amend, acknowledging that “the original grounds were not filed in a timely ma[nn]er.”
Id. at 98. He argued “[t]he new grounds filed d[id] not have a time limit because
Petitioner never knew of this rule 11, it has never been brought up, and did not have legal
access to this knowledge of Manifest Injustice.” Id. In his proposed amended § 2254
petition, Mr. Tolbert sought relief based solely on the judge having participated in the
plea negotiation discussion in violation of Federal Rule of Criminal Procedure 11(c)(1)
and New Mexico Rule of Criminal Procedure 5-304(A)(1).
The district court granted Mr. Tolbert’s motion to amend his petition, but then
dismissed the amended petition, holding he had not established any basis for tolling and
the one-year statute of limitation set out in 28 U.S.C. § 2244(d)(1) had expired. The court
rejected Mr. Tolbert’s arguments that his claims were timely because he was previously
unaware of the legal basis for his claim and had been refused access to transcripts from
his plea colloquy. The court also denied a COA. Mr. Tolbert responded by filing a motion
for rehearing and a motion requesting a COA. The court denied Mr. Tolbert’s motions,
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holding Mr. Tolbert had presented no basis for the court to reconsider its decision and
that, to the extent he attempted to present new evidence and arguments, this would be
considered a successive habeas claim over which the court lacked jurisdiction.
Mr. Tolbert now asks this court to grant him a COA.
II. DISCUSSION
A. Standard for a COA
An appeal from “the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court” shall be taken to
the court of appeals only if “a circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1). For a circuit judge to issue a COA, the applicant must have
“made a substantial showing of the denial of a constitutional right.” Id. § 2253(2).
District courts may deny habeas petitions based on the merits of the petitioner’s claims or
based solely on a procedural bar. Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a
district court denies a habeas petition based on a procedural bar, the petitioner must show
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.B. One Year Statute of Limitation
Under 28 U.S.C. § 2244(d)(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.” As relevant to Mr. Tolbert’s petition, this one-year statute of limitation
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starts running from the latest of: (1) the date the judgment in state court became final; or
(2) “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.” 28 U.S.C. § 2244(d)(1). “[T]ime during
which a properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending” does not count toward the
one-year bar. Id. § 2244(d)(2). The statute of limitation is subject to equitable tolling if
the prisoner “shows ‘(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v.
Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). “[E]quitable tolling is appropriate only in rare and exceptional circumstances.”
Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011) (internal quotation marks omitted).
For example, the Supreme Court recognized in Holland v. Florida that equitable tolling
may be appropriate where a prisoner has been diligently pursuing his rights but impeded
by “serious instances of attorney misconduct.” 560 U.S. at 652.
C. Analysis
We calculate the one-year statute of limitation for Mr. Tolbert to seek federal
habeas relief under 28 U.S.C. § 2254 from the date his judgment in state court became
final. 28 U.S.C. § 2244(d)(1)(A). Although Mr. Tolbert claims he only recently
discovered the legal basis for his claim, he has not alleged that State action in violation of
the Constitution or laws of the United States impeded him from filing his petition earlier
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thereby justifying a later start to the statute of limitation under 28 U.S.C. § 2244(d)(1)(B).
The state trial court entered judgment in Mr. Tolbert’s case on April 18, 2011. His time to
seek an appeal expired thirty days later, on May 19, 2011. See N.M. Stat. Ann. § 39-3-
3(A)(1) (allowing defendant thirty days to appeal from any final judgment in a criminal
proceeding); N.M. R. App. P. 12-308(A)(1) (stating that for computing time, periods of
eleven days or longer start on the day after the triggering event and all days count, unless
the last day falls on a Saturday, Sunday, or legal holiday). Mr. Tolbert did not file an
appeal, so his judgment in state court became final for purposes of § 2244(d)(1)(A) on
May 19, 2011, and the one-year statute of limitation began to run.
The statute of limitation continued to run until Mr. Tolbert filed a habeas petition
in state court on November 9, 2011, stopping the clock on the one-year filing period. See
28 U.S.C. § 2244(d)(2). At this time, 174 days had passed, leaving Mr. Tolbert with 191
days remaining to timely file a § 2254 petition. The statute of limitation began to run
again on January 14, 2016, after the state court had dismissed Mr. Tolbert’s habeas
petition and his time to seek certiorari from the Supreme Court of New Mexico had
expired. 6 Mr. Tolbert’s time to file under § 2244(d)(1) expired 191 days later, on July 25,
6
Mr. Tolbert submitted a petition for certiorari which the Supreme Court of New
Mexico denied as untimely on March 13, 2017. He argues this was a mistake and his
petition for certiorari had been delivered prior to his extension deadline. Because
Mr. Tolbert has not provided “clear and convincing evidence” to support this claim, we
rely on the Supreme Court of New Mexico’s factual determination that the petition was
untimely. See 28 U.S.C. § 2254(e)(1). We start the clock on the statute of limitation on
January 14, 2016, when Mr. Tolbert’s time to petition for certiorari expired. See Gibson
v. Klinger, 232 F.3d 799, 806 (10th Cir. 2000) (holding that untimely filed appeal does
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2016. He did not file an “application for State post-conviction or other collateral review”
during these 191 days, so the statute of limitation continued to run. See id. Mr. Tolbert
did not file his 28 U.S.C. § 2254 petition until December 31, 2019—1,253 days after the
one-year statute of limitation had passed. So, unless Mr. Tolbert has demonstrated that
jurists could reasonably debate whether his claim is subject to equitable tolling, we must
deny his request for a COA.
The only argument Mr. Tolbert has presented for equitable tolling is that he did
not have access to the computer system through which he accessed the federal rules and
became aware of Federal Rule of Criminal Procedure 11(c)(1) and New Mexico Rule of
Criminal Procedure 5-304(A)(1) until February 2020. He does not dispute he had the
evidence on which his argument is based in 2014, when he received a copy of his defense
attorney’s affidavit outlining the conversation she had with the judge and prosecutor prior
to Mr. Tolbert accepting the plea deal. This court has made clear that lack of knowledge
about the law and general statements about lack of access to research tools are not
sufficient to demonstrate extraordinary circumstances justifying equitable tolling. See
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that
‘ignorance of the law, even for an incarcerated pro se petitioner, generally does not
excuse prompt filing.’” (quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)));
not extend time that State post-conviction claim is pending under § 2244(d)(2)). But even
if the clock on the statute of limitation remained on pause through March 13, 2017,
Mr. Tolbert’s habeas petition would still be time barred.
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Miller, 141 F.3d at 978. Rather, a prisoner must “provide[] [] specificity regarding the
alleged lack of access and the steps he took to diligently pursue his federal claims.”
Miller, 141 F.3d at 978.
Mr. Tolbert’s one sentence statement that “[February] was the first time [he] had
access to the federal rules and case[s] on computer system” falls short of meeting this
standard. Appellant’s Br. & COA at 11. In Miller, this court rejected a nearly identical
argument holding that “[i]t is not enough to say that the Minnesota facility lacked all
relevant statutes and case law or that the procedure to request specific materials was
inadequate.” 141 F.3d at 978. Mr. Tolbert has not even claimed his facility lacked
relevant statutes and case law; he asserts only that it lacked a computer system that made
them easier to navigate. This statement is not enough to demonstrate “[Mr. Tolbert’s]
failure to timely file was caused by extraordinary circumstances beyond his control.”
Marsh, 223 F.3d at 1220. Reasonable jurists could not debate whether Mr. Tolbert’s
claim is subject to equitable tolling and therefore he is not entitled to a COA.
III. CONCLUSION
We DENY a COA and DISMISS this matter.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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