Snyder v. Ortiz , 236 F. App'x 465 ( 2007 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    June 12, 2007
    TENTH CIRCUIT                      Elisabeth A. Shumaker
    Clerk of Court
    JOHN GLENN SNYDER,
    No. 06-1459
    Petitioner-A ppellant,
    v.                                             (D . of Colo.)
    JOE ORTIZ, and JOHN W .                         (D.C. No. 06-cv-1488-ZLW )
    SU THERS, Attorney General of the
    State of Colorado,
    Respondents-Appellees.
    OR D ER AND JUDGM ENT *
    Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **
    John Glenn Snyder, a Colorado state prisoner, appealed pro se the district
    court’s denial of his 
    28 U.S.C. § 2254
     petition for habeas corpus, as well as that
    court’s subsequent denial of his request for a Certificate of Appealability (COA).
    The district court ruled that Snyder’s habeas petition was untimely, and that he
    *
    This order and judgment is not binding precedent except under the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.
    **
    After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
    had raised no grounds to excuse the late filing. On April 9, 2007 we granted
    Snyder’s motion for COA, and ordered additional briefing on Snyder’s assertion
    that his claims were not time-barred. The government has since filed its response.
    Snyder is challenging the validity of his August 5, 2002 state court
    conviction for sexual assault on a child by a person in a position of trust. W hile
    Snyder did not file a direct appeal, he sought post-conviction relief in state court.
    Before the district court, Snyder alleged these post-conviction proceedings were
    pending from December 27, 2002 until October 17, 2005, when the Colorado
    Supreme Court denied his petition for certiorari. The district court received
    Snyder’s petition for habeas corpus on July 26, 2006.
    Based on the preceding dates, the district court denied Snyder’s petition as
    untimely under the applicable one-year statute of limitations provided by 
    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. The limitation period shall run from the latest of--
    (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;
    * * *
    (2) The time during which a properly filed application for State
    post-conviction or other collateral review with respect to the pertinent
    judgment or claim is pending shall not be counted toward any period of
    limitation under this subsection.
    In light of the foregoing, the district court found the one-year limitations period
    began to run on September 19, 2002, when the time for filing a direct appeal in
    -2-
    Snyder’s case (45 days after his A ugust 5 conviction) had expired and his
    conviction became final. See § 2244(d)(1)(A). M oreover, and pursuant to
    § 2244(d)(2), the district court properly tolled the statute of limitations during the
    pendency of Snyder’s post-conviction proceedings— which Snyder had claimed
    ran from December 27, 2002 to October 17, 2005.
    Thus, between the date Snyder’s conviction became final (September 19,
    2002) and the initiation of his post-conviction proceedings (December 27, 2002),
    a total of 98-days had elapsed. At that point, the statute of limitations was tolled
    until the conclusion of Snyder’s post-conviction case on October 17, 2005. The
    clock then began ticking anew and expired 267 days later (98 days + 267 days =
    365 days, or one year) on July 12, 2005. However, the district court did not
    receive Snyder’s habeas petition until July 26, 14 days after the statute of
    limitations had allegedly expired.
    On appeal, however, Snyder argues that his post-conviction proceedings
    actually commenced on December 2, 2002 rather than on December 27, 2002, as
    he originally represented to the district court. As a result, he claims the statute of
    limitations should be tolled 25 days earlier than the date the district court had
    calculated. In fact, the C olorado state court docket sheet reflects that Snyder’s
    first post-conviction filing was made on December 2, 2002 rather than on
    December 27, 2002. Thus, if added to the 281 days that elapsed between the end
    of Snyder’s post-conviction proceedings and the instant petition for habeas
    -3-
    corpus, the result would be that Snyder’s petition was filed on the 354th day of
    the one-year limitations period and was, therefore, timely.
    In its response, the government concedes that Snyder’s computation is
    correct, and that his habeas petition had been timely filed in the district court. 1
    Therefore, we REVERSE and REM AND for proceedings consistent with this
    order and judgment. Additionally, we note appellant has filed a motion for the
    appointment of counsel. W e refer that motion to the district court for
    consideration on remand. See 18 U.S.C. § 3006A(a)(2)(B)(noting court may
    appoint counsel in habeas matters proceeding under § 2254 if the interests of
    justice so require).
    Entered for the Court,
    Timothy M . Tymkovich
    Circuit Judge
    1
    The government does not argue any waiver or estoppel theories on
    appeal.
    -4-
    

Document Info

Docket Number: 06-1459

Citation Numbers: 236 F. App'x 465

Judges: Henry, Holmes, Tymkovich

Filed Date: 6/12/2007

Precedential Status: Non-Precedential

Modified Date: 8/3/2023