Donald v. Pruitt

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 19, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
LARON ANTONIO DONALD,
Petitioner - Appellant,
v. No. 20-1435
(D.C. No. 1:20-CV-01326-LTB-GPG)
SEAN PRUITT, Warden; COLORADO (D. Colo.)
ATTORNEY GENERAL,
Respondents - Appellees.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________
Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
_________________________________
Laron Antonio Donald, an inmate proceeding pro se, 1 seeks a certificate of
appealability (COA) to challenge the district court’s dismissal of his 28 U.S.C.
§ 2254 petition. We deny Donald a COA.
*
This order is not binding precedent except under the doctrines of law of the case,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.
1
We construe a pro se appellant’s complaint liberally. Gaines v. Stenseng, 292
F.3d 1222, 1224 (10th Cir. 2002) (citation omitted). But we won’t serve as his advocate.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
BACKGROUND
On December 5, 2014, a jury in El Paso County District Court convicted Donald
on “numerous charges based on an incident in which he kidnapped, beat, and repeatedly
raped his girlfriend, the victim.” R. at 182 (citation omitted). Donald appealed his
conviction, and on December 7, 2017, the Colorado Court of Appeals affirmed the
judgment of conviction in part, vacated it in part, and remanded it in part. Specifically,
the court rejected Donald’s first three challenges: (1) denial of a fair trial,
(2) prosecutorial misconduct, and (3) cumulative error. But it reversed on the fourth
challenge of merger, ruling that the trial court had violated Donald’s constitutional right
to be free from double jeopardy. It concluded that the trial court had erred in imposing
five sexual-assault convictions based on two acts and two kidnapping convictions based
on one act. The Colorado Court of Appeals then remanded for correction of the judgment
of conviction to reflect the counts that should have been merged (what it called
“correction of the mittimus”). 2 R. at 165. On September 17, 2018, the Colorado Supreme
Court denied Donald’s Petition for Writ of Certiorari on his direct appeal.
In December 2018, Donald filed in the state trial court a motion to issue a new
mittimus. The following month, he filed a motion for sentence reconsideration under
Colo. R. Crim. P. 35(b). On January 31, 2019, the trial court issued two orders—one
issuing a new mittimus and the other denying in part the Rule 35(b) motion. Donald
2
According to Black’s Law Dictionary, a “mittimus” is “[a] court order or warrant
directing a jailer to detain a person until ordered otherwise.” Mittimus, Black’s Law
Dictionary (11th ed. 2019). We use “mittimus” in relation to Donald’s post-conviction
sentence correction consistent with the state court proceedings.
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appealed neither of these orders. Instead, two weeks later, he filed in the trial court a
motion to reconsider the denial of his Rule 35(b) motion. The trial court denied this
motion on March 8, 2019.
On May 11, 2020, Donald filed a federal petition for writ of habeas corpus under
28 U.S.C. § 2254 in the District of Colorado. Shortly after, he filed an amended petition.
In it, he asserted that his federal constitutional rights had been infringed in four ways:
(1) the trial court’s disallowing him from responding to a juror’s question violated his
rights to a fair trial and to present evidence in his defense; (2) prosecutorial misconduct
during closing argument violated his right to a fair trial; (3) the cumulative effect of the
errors in claims one and two violated his rights generally; and (4) his convictions on four
counts of sexual assault based on two acts violated his right to be free from double
jeopardy.
Subsequently, the magistrate judge ordered Respondents to file a pre-answer
response addressing two affirmative defenses: (1) whether Donald’s § 2254 habeas
petition was timely under 28 U.S.C. § 2244(d), including whether Donald’s diligence
justified equitable tolling; and (2) whether Donald had exhausted his claims in state court
as required under 28 U.S.C. § 2254(b)(1)(A). The magistrate judge also instructed
Respondents to notify the court if they were not intending to raise these affirmative
defenses.
Respondents filed a combined pre-answer response, with relevant state-court
exhibits attached. In it, they conceded that Donald had exhausted his state-court
remedies. Relevant to this appeal, they argued that the § 2254 petition was barred by the
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one-year limitation period contained in 28 U.S.C. § 2244(d), enacted under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104–132,
110 Stat. 1214. In support, they explained that the limitations period ran from the date
Donald’s state conviction became final but was tolled during properly filed state post-
conviction or collateral-review proceedings. They argued that Donald’s conviction had
become final for AEDPA purposes on December 17, 2018, which was the ninetieth day
after the Colorado Supreme Court’s denial of Donald’s petition for certiorari and the last
day on which Donald could have sought certiorari in the United States Supreme Court.
After that date, they argued, the statute of limitations ran for 37 days before it was tolled
from January 24, 2019 through March 21, 2019 for Donald’s post-conviction proceeding.
And after that, they argued, his limitations period ran unabated for 327 days and expired
on February 11, 2020—rendering his § 2254 petition filed on May 11, 2020 untimely.
On October 9, 2020, the magistrate judge recommended that Donald’s amended
§ 2254 petition be dismissed as untimely. But in his recommendation, he applied a more
generous timeline to Donald’s petition than had Respondents. Rather than counting the
37 days between January 24, 2019 and March 21, 2019 against Donald’s limitation
period, the magistrate judge concluded that the limitations period had not commenced
until the period to appeal Donald’s amended mittimus had expired. He found that
Donald’s conviction had become final on March 21, 2019, the last date on which Donald
could appeal the entry of his amended mittimus to the Colorado Court of Appeals.
The magistrate judge then addressed two issues related to AEDPA’s one-year
limitation period. First, he assessed Donald’s two reconsideration motions and noted that
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Donald had filed his original Rule 35(b) motion before the trial court issued the amended
mittimus. So the time in which that motion had been pending did not count against
Donald’s limitations period because his judgment had not yet become final. Relatedly, he
considered whether Donald’s second motion for reconsideration (filed two weeks after
the district court issued the amended mittimus) tolled the limitations period. Though the
magistrate judge was unconvinced that this motion tolled the limitation period under
§ 2244(d), he assumed that it did and determined that the last date to appeal the denial of
that motion was on April 26, 2019. Because Donald had not filed his federal habeas
petition until May 11, 2020 (more than 365 days later), his application was untimely.
Second, the magistrate judge assessed equitable tolling. He rejected Donald’s
argument that equitable tolling applied because COVID-19 had made the law library less
accessible. The magistrate judge found that Donald had failed to allege with any
specificity what steps he had taken to pursue his claim diligently before the COVID-19
restrictions went into place and how, despite them, he had still been able to file his
original pleading in May 2020 and his Pre-Answer Response in September 2020. So the
magistrate judge ruled that Donald’s untimely petition did not warrant equitable tolling.
Donald then filed objections to the magistrate judge’s recommendation, arguing
that he had timely filed his petition and, alternatively, that he was entitled to equitable
tolling. Nevertheless, the district court issued an order adopting the magistrate judge’s
recommendation, denying Donald’s petition for habeas corpus, declining to issue a COA,
and denying without prejudice leave for Donald to proceed in forma pauperis on appeal.
Donald asks us to grant him a COA. For the following reasons, we deny his request.
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DISCUSSION
I. Legal Standards
Before Donald’s appeal may proceed, he must obtain a COA. Slack v.
McDaniel, 529 U.S. 473, 484–85 (2000). To do so, he must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as
here, the district court has rejected the petitioner’s habeas application on procedural
grounds, the petitioner must show (1) “that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right,” and
(2) “that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack, 529 U.S. at 484. “Each component of [this]
showing is part of a threshold inquiry.” Id. at 485. Thus, if a petitioner cannot make a
showing on the procedural issue, we need not address the constitutional component.
See id.AEDPA provides a one-year limitation period for habeas petitions filed by persons
in custody under the authority of a state-court judgment. 28 U.S.C. § 2244(d)(1). That
limitation period generally runs from the date the state-court judgment becomes final by
conclusion of direct review or from the date when the time to seek such review expires.
Id. § 2244(d)(1)(A). But the time during which a proper state petition for post-conviction
relief or other collateral review is pending does not count against AEDPA’s limitation
period. Id. § 2244(d)(2); Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (noting
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that “state petitions for post-conviction relief filed within the one year allowed by
AEDPA will toll the statute of limitations.” (citation omitted)).
Equitable tolling may provide relief from AEDPA’s one-year limitation period.
Holland v. Florida, 560 U.S. 631, 634 (2010). A petitioner is entitled to equitable tolling
if he can show (1) that he has diligently pursued his rights, and (2) that extraordinary
circumstances blocked him from timely filing. Id. at 649 (citation omitted).
II. Analysis
Having reviewed the record and Donald’s arguments, for three reasons we
conclude that the district court was correct to invoke AEDPA’s one-year statute of
limitations to deny a COA.
First, as the district court concluded, Donald’s state-court judgment became final
no later than April 26, 2019, the last date on which Donald could have appealed the trial
court’s March 8, 2019 denial of his second reconsideration motion. And it wasn’t until
May 11, 2020—more than a year later—that Donald filed his § 2254 petition in federal
court.
Second, Donald is not entitled to equitable tolling based on his allegedly limited
access to the law library in the wake of COVID-19. The district court correctly concluded
that Donald hasn’t shown that he was pursuing his rights diligently throughout the one-
year window, including before the COVID-19 restrictions went into place. See, e.g.,
United States v. Barnes, No. 18-CR-0154-CVE, 2020 WL 4550389, at *2 (N.D. Okla.
Aug. 6, 2020) (“Even assuming that a lockdown due to the COVID-19 pandemic delayed
defendant’s ability to file his motion, it does not explain the more than one-year delay.
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COVID-19 measures have been in effect since March 2020, and defendant could have
filed his motion long before March 2020.”), certificate of appealability denied, 831
F. App’x 425 (10th Cir. 2020) (unpublished); United States v. Henry, No. 2:17-CR-
00180, 2020 WL 7332657, at *4 (W.D. Pa. Dec. 14, 2020) (“The bottom line is that
the COVID-19 pandemic does not automatically warrant equitable tolling for any
petitioner who seeks it on that basis. The petitioner must establish that he was
pursuing his rights diligently and that the COVID-19 pandemic specifically
prevented him from filing his motion.” (citation omitted)), appeal docketed,
No. 21-1285 (3d Cir. Feb. 18, 2021); Howard v. United States, No. 4:20-CV-1632
JAR, 2021 WL 409841, at *2 (E.D. Mo. Feb. 5, 2021) (rejecting that COVID-19
pandemic prevented movant from fully presenting his case because “movant makes no
effort to demonstrate that he has been diligently pursuing his rights” and “does not claim
to have taken any action to pursue his rights” (citations omitted)), appeal docketed,
No. 21-1592 (8th Cir. Mar. 15, 2021).
Third, though Donald now argues that COVID restrictions prevented him from
meeting with another inmate for help in preparing and filing his legal documents,
prisoners do not have “an abstract, freestanding right to a law library or legal assistance.”
Garcia v. Hatch, 343 F. App’x 316, 318 (10th Cir. 2009) (unpublished) (quoting Lewis v.
Casey, 518 U.S. 343, 351 (1996)). Donald has not explained why he was not diligent for
the nine months before COVID restrictions were implemented. Therefore, Donald hasn’t
made the requisite showing that he is due an exception to the statutory bar.
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In sum, no reasonable jurist could conclude that the district court erred in
dismissing the petition. See Slack, 529 U.S. at 484 (“Where a plain procedural bar is
present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude . . . that the district court erred in dismissing the
petition.”).
CONCLUSION
We deny Donald a COA and deny his petition to proceed in forma pauperis
because he has not presented a reasoned non-frivolous argument for appeal.
Entered for the Court
Gregory A. Phillips
Circuit Judge
9