Pinkey v. Zavislan , 440 F. App'x 610 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
September 21, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CYNTHIA RENEE PINKEY,
Petitioner - Appellant,
No. 11-1336
v. (D.C. No. 1:11-CV-01129-LTB)
(D. Colo.)
DONA ZAVISLAN,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Petitioner-Appellant Cynthia Renee Pinkey, a Colorado state inmate
appearing pro se, seeks a certificate of appealability (“COA”) to appeal from the
district court’s judgment. The district court dismissed Ms. Pinkey’s habeas
petition as time-barred and found no circumstances warranting equitable tolling.
28 U.S.C. §§ 2241, 2244(d)(2); R. 100-08. Ms. Pinkey claims that Colorado’s
Department of Corrections (“CDOC”) violated her constitutional rights by
miscalculating her sentence. Aplt. Br. 2. She claims that her state court remedies
were not exhausted until December 2010. Aplt. Br. 1.
To obtain a COA, Ms. Pinkey must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the district court
dismisses a petition on procedural grounds, a COA requires the inmate to
demonstrate that it is reasonably debatable whether (1) the petition states a valid
claim of the denial of a constitutional right, and (2) the district court’s procedural
ruling is correct. Slack v. McDaniel, 529 U.S. 473, 483-84.
Ms. Pinkey was sentenced in three separate Colorado proceedings between
March 1, 2004, and September 1, 2005. R. 15, 21, 23. She alleges that the
CDOC failed to adequately credit presentence confinement. Aplt. Br. 2.
Specifically, she claims that “403 days” of presentence confinement before her
first conviction, in Douglas County District Court on March 1, 2004 (02CR63),
and time served thereafter, should have been applied against her third conviction,
on September 1, 2005 in Arapahoe County District Court (04CR362), but that this
period was erroneously “voided.” Id. She claims this will eventually result in
“false imprisonment.” Id.Ms. Pinkey previously challenged the terms of her confinement in a federal
habeas proceeding resulting in a dismissal without prejudice for failure to
exhaust. See Pinkey v. Ortiz, No. 06-cv-00393-ZLW (D. Colo. May 25, 2006).
This court denied a COA and dismissed her appeal, reasoning that Ms. Pinkey had
not exhausted her claims; a state petition for a writ of mandamus did not suffice.
Pinkey v. Ortiz, 213 F. App’x 678 (10th Cir. 2007). In 2006, Ms. Pinkey also
filed a habeas corpus petition in the Denver District Court; it was denied on June
20, 2006, for failure to state a claim that she was entitled to immediate release.
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R. 88-89. On appeal, the Colorado Court of Appeals, in accordance with state
law, referred the matter to the Colorado Supreme Court. R. 90. The Colorado
Supreme Court affirmed the denial on March 1, 2007. R. 97. Ms. Pinkey filed an
original petition in that court earlier this year, which was denied on April 8, 2011.
R. 98. The instant action was filed on April 28, 2011.
The district court held that Ms. Pinkey’s claim was time-barred under 28
U.S.C. § 2244(d), which applies to § 2241 actions challenging the execution of a
state sentence. See Dulworth v. Evans, 442 F.3d 1265, 1268 (10th Cir. 2006). It
determined that the one-year limitation period began to run when the factual
predicate of Ms. Pinkey’s claim could have been discovered through the exercise
of due diligence. 28 U.S.C. § 2244(d)(1)(D). Even allowing for tolling while the
Colorado habeas proceedings were pending, § 2244(d)(2), the one-year limitation
surely was activated by March 1, 2007, when the Colorado Supreme Court
affirmed the denial of the state habeas petition. The original proceeding that she
filed in April 2011 in the Colorado Supreme Court did not toll the one-year
period, since tolling can only occur within the limitation period. Clark v.
Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006). The district court’s determination
on this issue is not reasonably debatable.
Claims under § 2241 are subject to equitable tolling in extraordinary
circumstances. Holland v. Florida, 130 S.Ct. 2549, 2562-63 (2010); Miller v.
Marr, 141 F.3d 976, 978 (10th Cir. 1998). The district court’s determination that
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no circumstances indicated equitable tolling is not reasonably debatable.
We DENY a COA, DENY IFP status as moot, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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