Brim v. Zavaras ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 22, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
ERNEST BRIM, a/k/a Bernard Horne,
Petitioner–Appellant,
v.
No. 09-1516
ARISTEDES W. ZAVARAS, Colorado (D.C. No. 1:09-CV-00429-ZLW)
DOC Executive Director; JOHN (D. Colo.)
SUTHERS, Attorney General of the State
of Colorado,
Respondents–Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, McKAY, and LUCERO, Circuit Judges.
Ernest Brim a/k/a Bernard Horne, a Colorado state prisoner proceeding pro se,
seeks a certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254
habeas petition. For substantially the same reasons set forth by the district court, we deny
a COA and dismiss.
*
This order is not binding precedent except under the doctrines of law of the case,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.
I
In March 1987, Brim was convicted of aggravated robbery, theft, and conspiracy
to commit aggravated robbery and theft in Colorado state court. He was sentenced as a
habitual criminal to life imprisonment. Brim’s convictions were affirmed on direct
appeal. On March 1, 1991, the Colorado Supreme Court denied certiorari. Brim did not
seek a writ of certiorari from the United States Supreme Court.
In February 1994, Brim filed a motion in state court for post-conviction relief
advancing eighty-five claims. Following a hearing, the court denied many of Brim’s
claims and set others for a subsequent hearing. Brim then filed numerous motions in the
trial court, along with two petitions for writs of mandamus in the Colorado Supreme
Court. The mandamus petitions were denied in late 1997. Brim’s petition for rehearing
was rejected by the Colorado Supreme Court on January 6, 1998.
Brim’s criminal docket sheet shows no activity over the next six years. On June 7,
2004, the court received a letter from Brim, which was characterized as a post-conviction
motion to vacate an illegal sentence. The trial court denied relief and the Colorado Court
of Appeals affirmed. On December 17, 2007, the Colorado Supreme Court denied
certiorari.
Brim filed a motion for a “Temporary Restraining Order In Writ of Habeas
Corpus” in federal district court on February 27, 2009. After the district court informed
him that his filing was deficient, Brim filed a § 2254 petition on May 15, 2009,
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advancing seven claims. Brim’s petition was dismissed as time-barred, and the district
court denied him a COA.
II
A petitioner may not appeal the denial of habeas relief under § 2254 without a
COA. § 2253(c)(1). We may issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” § 2253(c)(2). This requires Brim to
show “that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (quotations omitted).
Brim’s conviction became final on May 30, 1991, when the time to file a petition
for writ of certiorari in the United States Supreme Court expired. See Sup. Ct. R. 13.1
(1990) (amended 1995). “Where a conviction became final before AEDPA took effect,
. . . the limitations period for a federal habeas petition starts on AEDPA’s effective date,
April 24, 1996.” Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Accordingly,
Brim had until April 24, 1997, to file his federal habeas petition absent tolling. See
United States v. Hurst, 322 F.3d 1256, 1261 n.4 (10th Cir. 2003).
“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” AEDPA’s one-year limitations period. § 2244(d)(2); see
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§ 2254(d)(1). Even assuming that Brim’s state post-conviction motion was not
abandoned—thus tolling the statute of limitations for the entire period from April 24,
1996, when the limitations period began, to December 17, 2007, when the Colorado
Supreme Court denied certiorari1—Brim’s petition is untimely. He first filed in federal
court on February 27, 2009, more than two months after the limitations period expired on
December 17, 2008. See § 2254(d)(1).
Brim argues that we should add ninety days to the tolled period to account for the
time during which he could have, but did not, file a petition for writ of certiorari with the
United States Supreme Court. He apparently confuses § 2244(d)(2), which tolls 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,” and
§ 2244(d)(1)(A), which sets the start of AEDPA’s limitation period on “the date on which
the judgment became final by the conclusion of direct review or the expiration of the time
for seeking such review.” Although the time to file a certiorari petition in the United
States Supreme Court is counted for the latter, it has no relevance for the former. See
Rhine v. Boone, 182 F.3d 1153, 1155-56 (10th Cir. 1999).
Brim also asserts that he is entitled to equitable tolling, but provides no factual
basis for such tolling. Accordingly, Brim has waived any claim to equitable tolling. See
1
Brim erroneously argues that his state post-conviction proceedings are still
ongoing. The Colorado Supreme Court’s denial of certiorari ended those proceedings.
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Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[Equitable tolling] 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.”).
III
We DENY a COA and DISMISS Brim’s appeal. Brim’s motion for leave to
proceed in forma puaperis is GRANTED. All other pending motions are DENIED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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