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Melina v. Pollard

United States District Court, D. Colorado

January 29, 2016

DANIEL G. MELINA, Applicant,
v.
WILLIAM POLLARD, Warden, and JOHN W. SUTHERS, Attorney General for the State of Colorado, Respondents.

ORDER

LEWIS T. BABCOCK, Senior District Judge.

Applicant Daniel G. Melina has filed pro se an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) (the "Application") asserting six claims challenging the validity of his conviction in Adams County District Court case number 00CR1673. He has paid the $5.00 filing fee.

After denying Mr. Melina's request to stay the proceedings in abeyance while he returns to state court to fully exhaust claims two, three, four, and six ( see ECF No. 8), Magistrate Judge Boyd N. Boland ordered Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) ( see ECF No. 18). On August 29, 2014, Respondents filed their Response (ECF No. 24) conceding that claims two and five were exhausted but asserting failure to exhaust as to claim one and procedural default of claims three, four, and six.

After granting Mr. Melina multiple extensions of time to file a reply to the Response, the Court entered an order on January 29, 2015 directing Mr. Melina to show cause why the Application should not be denied and the action dismissed as time-barred under 28 U.S.C. § 2244(d). ( See ECF No. 36). In the Order to Show Cause, the Court noted that Respondents appeared to miscalculate the days that ran against the limitation period by identifying the filing date of Mr. Melina's state postconviction motion as June 25, 2008 instead of the actual filing date of July 24, 2008. ( Id. at 4, citing ECF 24-1 at 11 and ECF No. 24-15 at 1). The Court then determined that if the correct filing date was used, a total of 383 days ran against the limitation period; and even if Mr. Melina was given the benefit of the prison mailbox rule, the action still was untimely by approximately nine days.[1] ( Id. at 5 and 5 n.1). The Court further determined that Respondents had not waived the defense of timeliness by a simple miscalculation, and that the Court was permitted, but not obligated, to consider, sua sponte, the timeliness of the Application. ( See id., citing Day v. McDonough, 547 U.S. 198, 209 (2006)). After granting Mr. Melina an extension of time to respond to the Order to Show Cause, Mr. Melina filed his Response (ECF No. 40) on April 6, 2015. On April 14, 2015, Respondents filed their "Response to Applicant's Response to Order to Show Cause" (ECF No. 44).

The Court reviewed the parties' filings and entered an order on May 7, 2015 directing Mr. Melina to show cause why the deadline for his § 2254 application deadline should be equitably tolled. ( See ECF No. 48). In the Second Order to Show Cause, the Court noted that Mr. Melina argued that equitable tolling was appropriate for the following two reasons:

1) applicant is actually innocent of the solicitation count he was convicted of at trial. In claim two of applicants 2254 application the exculpatory evidence which trial counsel failed to introduce at trial which applicant included in his 2254 application will exonerate applicant in future proceedings.
2) an adversary's conduct or other uncontrollable circumstances prevents the applicant from timely filing. As applicant has asserted to this honorable court in previous motions he has never been in possession of any of his discovery or trial transcripts. It started with an order by judge Harlan Bockman. Judge Bockman ruled that applicant nor his codefendants could possess discovery in jail cell. If while in the county jail applicant wanted to see his discovery he was to request permission to go to the jail law library and view it there. This occurred in October 2000 until February 2001. Applicant goes back this far to prove that he has never been in possession of his discovery and transcripts. In October 2005, applicant was unexpectedly moved from Colorado state prison to Wisconsin secure prison facility. Wisconsin's version of super max. Upon departure from Colorado applicant was unable to bring with him the few motions and briefs from his appeals that he was in possession of. To make matters worse for applicant once he arrived to the super max Wisconsin he was not afforded any Colorado revised statute books or case law. As evidenced in attached exhibit A applicant wanted to file a writ of certiorari with the U.S. Supreme Court and even asked for an extension of time to do so. In his motion for extension of time applicant states his lack of Colorado case law and not being in possession of discovery and trial transcripts. Applicant was diligent in trying to obtain his discovery and trial transcripts as evidenced in exhibits A, B, and C. Applicant contacted the Adams County court house (clerk's office), the Adams County Sheriff's department, all 3 of his appellate attorney's, and even Colorado's alternate defense counsel trying to obtain his discovery, trial transcripts and files pertaining to his case. Applicant was told by attorney Brad Junge that he would provide the discovery and transcripts to applicant via U.S. post office mail system. Applicant even went as far as to get it approved by his social worker as the discovery and transcripts would be sent in 2 medium sized boxes. Mr. Junge never sent the discovery or transcripts to applicant. And went as far as to write him a letter (exhibit B), explaining that applicants mother left him a few messages but never left her address because the paper work was supposed to be sent to applicant not applicants mother.... Due to the fact that applicant did not have his discovery or trial transcripts or even Colorado case law he faced extra ordinary circumstances and serious hardship which was out of his control. When applicant's post conviction motion was denied on December 9, 2013, he had just 82 days left to perfect his 2254 application. Although applicant was now afforded Lexis Nexis and limited Colorado revised statutes he was still without his discovery and trial transcripts. And since the AEDPA one year time limitation is not a recognized court imposed deadline at Waupun Correctional Institution (prisoners must have an actual minute order as proof of any such deadline), applicant was unable to attend WCI prison law library on a court imposed deadline pass. Due to these extra ordinary

circumstances applicant believes that equitable tolling exists in this case. ( See ECF 48 at 5-7, citing ECF No. 40 at 2-4).

The Court then summarized Mr. Melina's two arguments for equitable toling as follows: (1) that he is actually innocent; and (2) that there were extraordinary circumstances that prevented him from timely filing, such as being transferred to Wisconsin without his legal materials, having no or limited access to Colorado law, having limited law library time, and having no access to his trial transcripts and discovery. ( See ECF No. 48 at 7). The Court further found that Mr. Melina attempted but failed to allege with the required specificity how the circumstances were "extraordinary" and hindered his ability to timely file his application. ( Id. ). Therefore, the Court ordered Mr. Melina to show cause, with the required specificity regarding facts and dates, as to why the one-year limitation period should be equitably tolled. ( Id. ). After granting Mr. Melina multiple extensions of time to respond to the Second Order to Show Cause, Mr. Melina filed his Response (ECF No. 60) on October 21, 2015. Respondents were given the opportunity to file a reply, but did not do so.

The Court must construe the pleadings filed by Mr. Melina liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Application should be DENIED as untimely and the case DISMISSED.

I. BACKGROUND

The facts of Mr. Melina's state criminal case were summarized by the Colorado Court of Appeals (CCA) as follows:

The evidence at trial showed that two men, Leandro Lopez and Robert Padilla, murdered a key witness in a felony drug prosecution against defendant's brother. In the weeks before the murder, defendant made 34 phone calls to Padilla. After the murder, defendant paid Padilla approximately $3, 000. Defendant was indicted for first degree murder, conspiracy to commit first degree murder, ...

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