United States District Court, D. Colorado
ORDER FOR DISMISSAL UNDER 28 U.S.C. § 2244(d)(1)(A)
RICHARD P. MATSCH, Senior District Judge.
In his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, filed on March 10, 2014, Julian Keith Garcia concedes that the petition is untimely under 28 U.S.C. § 2244(d)(1)(A) but asserts that he should be granted equitable tolling on his claims of ineffective assistance of counsel and actual innocence.
Respondents were directed to file a limited response directed to equitable tolling. That Response was filed on April 3, 2014 [Doc. 7] and Garcia filed his Reply on April 24, 2014 [Doc. 10]. There is some dispute concerning the calculation of the one-year period.
On April 1, 2005, Garcia was sentenced to 36 years to life for sexual assault; a consecutive 72 years for second degree kidnapping; and 18 years for car theft, to run concurrently with the kidnapping sentence.
The Colorado Court of Appeals affirmed Garcia's convictions and sentences on December 6, 2007. The Colorado Supreme Court denied Garcia's certiorari petition on May 12, 2008. Garcia's conviction became final on Sunday, August 10, 2008, making Monday, August 11, 2008 the last day for seeking certiorari from the U.S. Supreme Court. The AEDPA limitations period therefore began to run on August 12, 2008.
On August 18, 2008, Garcia's court-appointed attorney filed a post-conviction motion for sentence reconsideration, which tolled the limitations period. The motion was denied on September 29, 2008, and his counsel ended his representation. Garcia did not appeal. Accordingly, the limitations period started running again 45 days after September 29, 2008 - November 14, 2008 - with 359 days left on the clock.
Garcia filed a pro se Section 2254 habeas application in this court on May 6, 2009. That filing did not statutorily toll Section 2244's limitations period because the application was not "for state post-conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2). Judge Weinshienk dismissed the application without prejudice on July 15, 2009 for failure to exhaust state remedies. Garcia says that he believed that dismissal "without prejudice" meant that the habeas deadline was stayed so he could file a Rule 35(c) Motion in state court within the 3-year state statute of limitations and then, having exhausted his state remedies, return to federal court if necessary.
On May 27, 2010, Garcia filed a pro se Colorado Rule 35(c) motion, asserting that he was incompetent to stand trial, the trial court's sentence was excessive, his trial counsel was ineffective, and the imposition of aggravated prison terms violated the Sixth Amendment. He also requested the appointment of post-conviction counsel. The state district court denied Garcia's request in an order dated July 30, 2010. Garcia did not appeal.
Because Garcia did not file his post-conviction motion within the 359 days following November 14, 2008, the AEDPA limitations period expired on Monday, November 9, 2009.
On February 17, 2011, Garcia's family retained David Goldberg, his current attorney, to represent Garcia in post-conviction proceedings. Goldberg obtained the record and transcripts in Garcia's case eleven days later by paying $41.25 in processing and copying fees to the El Paso County District Court.
On May 31, 2011, Goldberg filed two post-conviction motions on Garcia's behalf. The first motion sought DNA testing of a bandana the victim testified she had been forced to wear as a blindfold. The second raised claims under Colorado Rule of Criminal Procedure 35(c)-that Garcia was incompetent to stand trial, that his sentence was excessive, that his trial counsel was ineffective, and that the imposition of aggravated prison terms violated the Sixth Amendment. Because the AEDPA limitations period had already long expired, these motions have no tolling effect. The district court denied Garcia's motions in separate orders, each dated June 11, 2011. The Colorado Court of Appeals affirmed the district court on December 13, 2012. The Colorado Supreme Court denied Garcia's certiorari petition on July 15, 2013.
Garcia filed this Application on March 10, 2014, roughly four-and-a-half years after the AEDPA's one-year limitations period expired on November 9, 2009. Garcia acknowledges that "he cannot seriously contest" the foregoing facts, precedents and time calculations. [Doc. 10 at 2.]
Garcia argues he is entitled to equitable tolling because:
1. His lack of post-conviction counsel and his lack of access to the case record (including trial transcripts) constitutes an "extraordinary circumstance" that stood in his ...