Hubler v. Ortiz , 190 F. App'x 727 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 14, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
GREGORY STEW ART HUBLER,
Petitioner - A ppellant,
No. 06-1173
v. (D.C. No. 06-CV-00211 ZLW )
(D . Colo.)
JOE ORTIZ, Director Colorado
D.O.C.; JOHN SU THERS, The
Attorney General of the State of
Colorado,
Respondents - Appellees.
ORDER
DENYING CERTIFICATE O F APPEALABILITY
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
Gregory Stew art Hubler, a state inmate appearing pro se, seeks a certificate
of appealability (COA) so that he may appeal from the district court’s denial of
his habeas petition filed pursuant to 28 U.S.C. § 2254. Because M r. Hubler has
failed to demonstrate that it is reasonably debatable whether the district court’s
procedural ruling dismissing his claim is correct, see Slack v. M cDaniel, 529 U.S.
473, 484 (2000), we deny a COA and dismiss the appeal.
On December 12, 1999, before a Colorado state court, M r. Hubler pled
guilty to pandering to a child in violation of Colo. Rev. Stat. § 18-7-403(1)(b). R.
Doc. 8, Att. 4. On February 29, 2000, he was sentenced to 20 years probation.
Id. He did not file a direct appeal from his conviction. On M arch 5, 2002, for
reasons not reflected in the record, M r. Hubler’s probation was revoked, and he
was sentenced to 14 years in prison. Id.According to M r. Hubler, in July 2003, he filed an application for post-
conviction relief in state trial court. On August 15, 2005, the trial court denied
that motion, on M ay 19, 2005, the Colorado Court of Appeals affirmed
concluding the motion was untimely, and on October 11, 2005, the Colorado
Supreme Court denied his petition for writ of certiorari. He further alleges that
on June 24, 2005, he filed a second post-conviction motion, on July 5, 2005, the
trial court denied the motion, and his appeal therefrom is still pending in the
Colorado Court of A ppeals.
On February 7, 2006, M r. Hubler filed his federal habeas petition. R. Doc.
3. It was received for filing on January 26, 2006. In it, he challenged the legality
of his conviction on several grounds. See id.On February 9, 2006, the magistrate judge assigned to the case ordered M r.
Hubler to show cause why his petition should not be denied as time-barred by the
one-year limitations period in 28 U.S.C. § 2244(d). R. Doc. 4 at 4. On M arch 6,
2006, M r. Hubler filed his response to the show cause order, see R. Doc. 5, and
on April 5, filed a combined motion to amend his petition and request for leave of
court to conduct discovery with the appointment of counsel, see R. Doc. at 6. The
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district court denied M r. Hubler’s motion to amend, in part, denied his request to
conduct discovery with appointment of counsel, and, without addressing M r.
Hubler’s constitutional claims, dismissed his habeas petition as time-barred. See
R. Doc. 7.
W hen the district court denies a habeas petition on procedural grounds and
fails to address the prisoner’s constitutional claims, we may issue a COA only if
the prisoner demonstrates 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, 529 U.S. at 484. On appeal, M r.
Hubler argues the merits of his claims and that the district court erred in
determining his action is barred by limitations. The district court’s conclusion
that M r. Hubler’s claims are time-barred is not reasonably debatable. The
Antiterrorism and Effective Death Penalty Act (AEDPA ), enacted on April 24,
1996, provides that 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.” 28 U.S.C. § 2244(d)(1). This limitation period usually commences on
“the date on which the judgment became final by . . . the expiration of the time
for seeking [direct] review .” 28 U.S.C. § 2244(d)(1)(A ). M r. Hubler did not file
a direct appeal from his conviction, and thus it became final on April 14, 2000,
forty-five days after the imposition of his judgment and sentence. See Colo. App.
R. 4(b)(1). M r. Hubler therefore had until April 14, 2001, to file his § 2254
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petition. He did not file his § 2254 motion until February 7, 2006, well past the
deadline.
The running of the limitations period would be tolled or suspended during
the pendency of any post-conviction or other collateral proceeding filed during
the one-year limitations period. See Hoggro v. Boone, 150 F.3d 1223, 1226 (10th
Cir. 1998). But a petition for post-conviction relief filed in state court after the
limitations period has expired no longer serves to toll it. See Fisher v. Gibson,
262 F.3d 1135, 1142-43 (10th Cir. 2001). Thus, M r. Hubler’s July 2003 and June
24, 2005, applications for post-conviction relief are of no consequence.
The limitations period for § 2254 motions is also subject to equitable
tolling in extraordinary circumstances, Gibson v. Klinger, 232 F.3d 799, 808
(10th Cir. 2000), such as where “a constitutional violation [will] result[ ] in the
conviction of one who is actually innocent or incompetent,” M iller v. M arr, 141
F.3d 976, 978 (10th Cir. 1998). But in order for a petitioner to avail himself of
the actual innocence exception he must demonstrate that his claim is based on a
an independent constitutional violation. See Herrera v. Collins, 506 U.S. 390,
400, 404 (1995) (holding that although actual innocence is not itself a recognized
constitutional claim, it can serve as a “gateway” through which a habeas
petitioner may advance an otherw ise procedurally barred constitutional claim).
M r. Hubler’s claim of actual innocence is unavailing. It is tied to an
assertion that the State violated Brady v. M aryland, 373 U.S. 83 (1963), and its
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progeny, by failing to disclose potentially material impeachment evidence before
he rendered his guilty plea and “strategically sealing” a volume of the court
record— specifically, an unlabeled manilla envelope. See COA App. at 3-4; Aplt.
Br. at 7-10. As to the potentially material impeachment evidence, the Supreme
Court closed the door on M r. Hubler’s argument in United States v. Ruiz, 536
U.S. 622, 629 (2002), when it held that the Constitution does not require pre-
guilty plea disclosure of impeachment information. M r. Hubler’s attempt to
distinguish R uiz as a drug case, as opposed to the “sex-type” case here, see COA
App. at 4, is unpersuasive. And as to the sealed record, the district court did not
abuse its discretion in denying his discovery request based on M r. Hubler’s
allegations regarding the possibility of uncovering exculpatory evidence therein.
See Rector v. Johnson, 120 F.3d 551, 562-63 (5th Cir. 1997) (district court did
not abuse its discretion in denying discovery into sealed records when petitioner
failed to make at least a prima facie showing of what specifically he intends to
find and prove).
M r. Hubler also claims the time-bar should be excused because the felony
complaint and information to which he pleaded does not contain a date, signature
or file stamp and therefore the state district court lacked jurisdiction over the
criminal matter. See Colo. Rev. Stat. § 16-5-101(c). Even assuming that the
copy he submits w as incomplete, it plainly specifies the counts. Regardless, we
are unpersuaded that this type defect suggests actual innocence that would be
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required for equitable tolling. See Schlup v. Delo, 513 U.S. 298, 327-28 (1995).
W e DENY IFP status, DENY a COA, and DISM ISS this appeal. All
pending motions are DENIED. W e STRIKE the supplemental authority
ostensibly filed pursuant to Fed. R. App. P. 28(j) on August 7, 2006, as improper
argument. See United States v. Lindsey, 389 F.3d 1334, 1336 n.1 (10th Cir.
2004).
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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