Martinez v. Colorado Attorney General , 527 F. App'x 793 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
June 13, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DION MARTINEZ,
Petitioner - Appellant, No. 13-1100
v. (D. Colorado)
THE ATTORNEY GENERAL OF (D.C. No. 1:12-CV-02493-LTB)
THE STATE OF COLORADO,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
Applicant Dion Martinez, a Colorado state prisoner proceeding pro se, filed
an application for relief under 28 U.S.C. § 2254 in the United States District
Court for the District of Colorado. The district court dismissed the application as
untimely. Applicant seeks a certificate of appealability (COA) from this court to
appeal the denial. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal
denial of a § 2254 application). We deny a COA and dismiss the appeal.
Applicant pleaded guilty in Colorado state court to burglary and attempted
murder and was sentenced on February 12, 2009. He did not appeal his sentence,
but on March 31, 2009, he filed a motion in state court to reconsider his sentence
under Colo. R. Crim. P. 35(b) (defendant may file a motion to reduce sentence
within 120 days of imposition of sentence). The court never ruled on that motion,
and Applicant did not take further steps to seek relief until September 19, 2011,
when he filed several additional postconviction motions and petitions. The
motions and petitions were denied a month later. The time for appeal of the
denial expired on December 5, 2011, but Applicant filed an untimely notice of
appeal on January 9, 2012. The Colorado Court of Appeals dismissed Applicant’s
appeal as untimely on April 23, 2012, and the Colorado Supreme Court denied a
writ of certiorari.
Applicant filed his § 2254 application on September 19, 2012, alleging (1)
that the trial court sentenced him within the range for aggravated crimes of
violence without a jury finding of aggravating circumstances, and (2) that he was
denied effective assistance of counsel during the plea process. The district court
ordered briefing on the timeliness of the application
After both the state and Applicant filed briefs on timeliness, the district
court dismissed the petition as barred by the one-year limitation for filing § 2254
applications under the Antiterrorism and Effective Death Penalty Act (AEDPA).
See 28 U.S.C. § 2244(d)(1). The court reasoned that Applicant’s conviction
became final on March 30, 2009, when he could no longer appeal his sentence.
See id. § 2244(d)(1)(A) (the one-year limitation period runs from the latest of
several dates, one of which is “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such
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review”); Colo. App. R. 4(b)(1) (period to appeal expires 45 days after entry of
judgment). And it determined that the one-year period was not tolled by
Applicant’s March 2009 motion for postconviction relief, see 28 U.S.C.
§ 2244(d)(2) (time that a “properly filed application for State postconviction”
review is “pending” does not count toward limitations period), because he had not
pursued that motion with diligence. See People v. Fuqua, 764 P.2d 56, 61 (Colo.
1988) (defendant abandons a motion under Colo. R. Crim. P. 35(b) if he fails to
“make reasonable efforts to secure an expeditious ruling”). Finally, the court
ruled that there was no ground for equitable tolling because of mental
incompetency or ineffective assistance of counsel because (1) even if Applicant
was on antipsychotic medication and housed at a mental-health facility from
August 2009 to August 2010, as he alleged, he could have pursued his
postconviction remedies after that time, and (2) Applicant did not demonstrate
any basis for his claim that his counsel abandoned him. See Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005) (A litigant may be entitled to equitable tolling under
AEDPA if he can establish that (1) “he has been pursuing his rights diligently,”
and (2) “some extraordinary circumstance stood in his way.”).
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If the application
was denied on procedural grounds, the applicant faces a double hurdle. Not only
must the applicant make a substantial showing of the denial of a constitutional
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right, but he must also show “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 conclude either that the district court erred in dismissing the
petition or that the petitioner should be allowed to proceed further.” Id.No reasonable jurist could debate the correctness of the district court’s
ruling. Applicant’s conviction became final on March 30, 2009. Applicant’s
March 31, 2009 motion for postconviction relief tolled the AEDPA limitations
period only until Applicant abandoned the motion by failing to take reasonable
steps to secure a ruling. See Fuqua, 764 P.2d at 61; Gibson v. Klinger, 232 F.3d
799, 806 (10th Cir. 2000) (“Although the interpretation of the term ‘pending’ is a
matter of federal law, our definition does require some inquiry into relevant state
procedural laws . . . .”). In evaluating the diligence of a defendant, the Colorado
courts take into account that the trial judge should resolve a Rule 35(b) motion
within the time “reasonably necessary to decide the issue presented by the motion
for reduction of sentence[;] [the reasonable time allowed for a ruling is] not a
license to wait and reevaluate the sentencing decision in the light of subsequent
developments.” Mamula v. People, 847 P.2d 1135, 1138 (Colo. 1993) (internal
quotation marks omitted). We need not define precisely when abandonment by
Applicant occurred, but we can be confident that it occurred before September
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2010, some 18 months after he filed his Rule 35(b) motion. See id. at 1136–38
(defendant abandoned postconviction motion when state court did not rule on it
for 20 months). Therefore, the AEDPA limitations period expired before
Applicant filed his additional motions and petitions for postconviction relief on
September 19, 2011, 1 a year before he filed his § 2254 application.
Nor can Applicant establish timeliness under the doctrine of equitable
tolling. He claims that he is entitled to such tolling because his counsel
abandoned him, but he does not state any specific facts supporting the claim. He
does not pursue in this court his claims below that he is entitled to tolling because
he was in a mental-health facility and on antipsychotic medication from August
2009 to August 2010; but in any event, he has never presented evidence that the
medication prevented him from pursuing his claims in court.
We DENY the application for a COA and DISMISS the appeal. We
GRANT Applicant’s motion to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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We further note that the September 2011 pleadings would have tolled the
limitations period for at most three months. The state district court denied relief
on October 19, 2011, and the time for appeal expired on December 5. Although
Applicant filed a notice of appeal, it was untimely and thus did not toll the
limitations period at all. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).
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