Saenz-Jurado v. People of the State of Colorad ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
May 19, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ABEL SAENZ-JURADO,
Petitioner-Appellant,
v.
PEOPLE OF THE STATE OF No. 08-1428
COLORADO; DOUGLAS N. DARR, (D.C. No. 1:08-CV-01354-ZLW)
Adams County Sheriff Department; (D. Colo.)
CHARLES SCOTT CRABTREE,
District Judge; and JOHN W.
SUTHERS, Attorney General of the
State of Colorado,
Respondents-Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
Abel Saenz-Jurado requests a certificate of appealability (“COA”)
following the district court’s denial of his 28 U.S.C. § 2254 application for a writ
of habeas corpus. The district court denied the application because it was time
barred under § 2244(d)(1). For substantially the same reasons as the district
court, we deny Saenz-Jurado’s request for a COA and dismiss the appeal. 1
I
On August 16, 1994, Saenz-Jurado pleaded guilty in Colorado state court to
one count of unlawful distribution of a schedule II controlled substance. On
December 6, 1994, he was sentenced to ninety days’ confinement and four years’
probation. Saenz-Jurado did not appeal.
On May 29, 1997, Saenz-Jurado’s probation was revoked, and he was
sentenced to four years in a community corrections program. On September 15,
1999, the community corrections program requested a warrant, claiming that
Saenz-Jurado had failed to comply with program requirements. Saenz-Jurado
alleges that he was then arrested by federal authorities on September 16, 1999,
and subsequently charged with possession of 500 or more grams of cocaine.
After pleading guilty to the federal charge, he was sentenced to 159 months’
imprisonment and transferred to a federal prison in Texas to serve his federal
sentence. On October 24, 2000, Colorado state officials filed a detainer against
Saenz-Jurado seeking his return to Colorado following his release from federal
custody.
1
On February 20, 2009, this court issued a show cause order directing
Saenz-Jurado to demonstrate why his notice of appeal from the judgment of the
district court was timely. Having reviewed his response, we conclude that, under
the prison mail box rule, see Fed. R. App. P. 4(c), the notice of appeal was timely
filed, and we proceed to consider Saenz-Jurado’s request for a COA.
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On November 1, 2002, Saenz-Jurado commenced a state collateral
proceeding challenging his Colorado conviction for unlawful possession of a
schedule II controlled substance. On August 23, 2005, the petition was denied as
untimely by the Colorado district court. The intermediate appellate court
affirmed on March 22, 2007, and on November 5, 2007, the Colorado Supreme
Court denied his petition for a writ of certiorari.
Thereafter, on June 10, 2008, Saenz-Jurado filed the instant application for
writ of habeas corpus under § 2254 in the United States District Court for the
District of Colorado. His § 2254 application was denied based on the one-year
limitations period in § 2244(d)(1). Saenz-Jurado then requested a certificate of
appealability from the district court, moved for appointment of counsel, and
applied for leave to proceed in forma pauperis (“IFP”) on appeal. The district
court denied all three requests on November 6, 2008. He now seeks a COA from
this court and once again requests appointment of counsel and leave to proceed
IFP on appeal.
II
Because the district court denied his habeas application as well as his
request for a COA, Saenz-Jurado may not appeal the district court’s decision
absent a grant of a COA by this court. § 2253(c)(1)(A). To obtain a COA,
Saenz-Jurado must make a “substantial showing of the denial of a constitutional
right.” § 2253(c)(2). When the district court denies a habeas application on
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procedural grounds without reaching the underlying constitutional claims, as it
did here, a petitioner is not entitled to a COA unless he can show both 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.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). An appellate court has discretion to resolve
either the procedural or the substantive issue first. Id. at 485.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a
one-year statute of limitations on § 2254 habeas claims. § 2244(d)(1). In the
usual case, the period begins to run from “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking
such review.” § 2244(d)(1)(A). The state court entered judgment against Saenz-
Jurado on December 6, 1994. He did not appeal. Thus, Saenz-Jurado’s
conviction became final and AEDPA’s one-year limitations period began to run
on January 20, 1995, forty-five days after judgment was entered against him. See
Colo. App. R. 4(b) (requiring that a notice of appeal from a state criminal
conviction be filed within forty-five days of the entry of judgment). As a result,
Saenz-Jurado was required to file his federal habeas application by January 20,
1996. See § 2244(d)(1). Because he did not file the present application until
June 10, 2008, given the absence of the benefit of more than twelve years of
tolling, it is time barred under AEDPA.
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Construing his request for a COA liberally, as we must, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), Saenz-Jurado urges that we consider the
limitations period equitably tolled on at least five bases: (1) he did not know how
to read or write in either English or Spanish, (2) he lacked access to legal
materials, (3) he suffered from mental illness, (4) he could not appeal his state
conviction because his attorney had a conflict of interest, and (5) he is actually
innocent. He also wishes to appeal the district court’s refusal to appoint counsel.
Equitable tolling may be proper in rare and exceptional circumstances.
Coppage v. McKune, 534 F.3d 1279, 1280 (10th Cir. 2008). Such circumstances
may arise when a petitioner “diligently pursues his claims and demonstrates that
the failure to timely file was caused by extraordinary circumstances beyond his
control.” United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008)
(quotation omitted).
First, Saenz-Jurado contends he is entitled to tolling because he did not
know how to read or write in either English or Spanish. But Saenz-Jurado only
states that despite extensive studying, he has not yet been able to pass the GED
exam. Although not written in perfect English, his federal collateral attack has
been accepted and understood by the courts. He has pointed to no evidence
beyond his bare assertion that he would not have been able to file a similarly
intelligible pleading at an earlier time. See Yang v. Archuleta, 525 F.3d 925,
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929-30 n.7 (10th Cir. 2008). The record does not support the conclusion that his
language difficulties are extraordinary.
Second, and relatedly, Saenz-Jurado claims to have lacked access to legal
materials because of his language deficiencies and because of various transfers
between different federal facilities. To justify tolling under AEDPA, “[i]t is not
enough to say that the [correctional] facility lacked all relevant statutes and case
law.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998). Nor is there a
constitutional duty to provide access to legal materials in a prisoner’s preferred
language. Yang, 525 F.3d at 930. Thus, Saenz-Jurado’s lack of access to legal
materials cannot support the necessary tolling under AEDPA.
Third, Saenz-Jurado claims he is entitled to tolling because he suffered
from mental illness. However, his allegations on this point are conclusory and
lack support in the record. For example, in his brief to this court, Saenz-Jurado
does not indicate from what mental illness he suffered; rather, he summarily
asserts that he has seen a psychologist and that he could not timely file his
application because of “mental illness.” Cf. Biester v. Midwest Health Servs.,
Inc., 77 F.3d 1264, 1268 (10th Cir. 2008) (holding that equitable tolling on the
basis of mental illness must be based on exceptional circumstances such as
adjudged incompetence or institutionalization). Thus, he has failed to
demonstrate that his mental condition constitutes an extraordinary condition. See
Gabaldon, 522 F.3d at 1124.
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Fourth, Saenz-Jurado argues that his state trial attorney had a conflict of
interest because the attorney was simultaneously representing a co-defendant. We
reject this argument because Saenz-Jurado has not explained how this alleged
conflict of interest (which also appears to be one of the substantive bases for the
habeas relief he seeks) prevented him from timely filing his federal habeas
application.
Fifth, equitable tolling is also appropriate when a defendant is actually
innocent of the crimes of which he was convicted. Gibson v. Klinger, 232 F.3d
799, 808 (10th Cir. 2000). Saenz-Jurado argues that he is innocent because the
cocaine he was convicted of distributing belonged to someone else. But given his
concession that the cocaine was found inside the vehicle he was driving (even
though it was also occupied by another individual), he has made no showing that,
“in light of all the evidence, it is more likely than not that no reasonable juror
would have convicted him” of the offense. Bousley v. United States, 523 U.S.
614, 623 (1998) (quotation omitted). Further, Saenz-Jurado’s claim that the state
court did not establish a factual basis for his conviction faces the same
deficiency; he does not make the required showing of actual innocence.
Finally, Saenz-Jurado challenges the district court’s refusal to appoint
counsel. Unless the district court determines that an evidentiary hearing is
required, a habeas petitioner does not have a right to counsel at this stage.
Engberg v. Wyoming, 265 F.3d 1109, 1122 n.10 (10th Cir. 2001). The decision
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to appoint counsel is thus within the sound discretion of the district court. Id. at
1122. Our review of the record does not reveal a reason to disturb the exercise of
that discretion in this case.
III
Accordingly, jurists of reason would not find debatable the district court’s
conclusion that Saenz-Jurado’s habeas application was time barred. Saenz-
Jurado’s application for a COA is DENIED, and his appeal is DISMISSED. His
motion for appointment of counsel is DENIED. Because we agree with the
district court that this appeal is not taken in good faith, his motion to proceed IFP
on appeal is DENIED. See 28 U.S.C. § 1915(a)(3).
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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