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Warren v. Milyard, 10th Cir. (2011)
Warren v. Milyard, 10th Cir. (2011)
TENTH CIRCUIT
LOUIS WARREN,
Petitioner - Appellant,
v.
No. 11-1083
(D. Colorado)
Respondents - Appellees.
I.
BACKGROUND
Defendant pleaded guilty to racketeering in Colorado state court and was
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Defendant filed his application under 2254 on October 20, 2010. The
State argued that the application was barred by the one-year limitations period
and the district court agreed, dismissing the case on February 9, 2011.
II.
DISCUSSION
A certificate of appealability may issue . . . only if the applicant has made
We therefore will assume that Defendants limitations period was tolled from
June 29, 2005, when he filed his motion for sentence reconsideration, until that
motion was denied on September 28, 2006. The limitations period thus began to
run on September 29, 2006, when there were no pending postconviction
proceedings; and Defendants time to file a 2254 application expired on
September 29, 2007. Accordingly, the limitations period had already expired
when he filed additional state postconviction motions in 2008 and 2009, and the
limitations period could not be further tolled. See Fisher v. Gibson, 262 F.3d
1135, 114243 (10th Cir. 2001). Defendants 2254 application filed in October
2010 was well outside the limitations period.
Defendant makes three arguments that his application is nevertheless not
time-barred. First, he argues that because his most recent state-court motion was
not finally resolved until September 2010, the 2254 limitations period should
have been tolled until then. But, as previously noted, the limitations period had
already expired when that motion was filed on March 9, 2009. There was no
pending state motion between September 28, 2006, and May 23, 2008.
Second, Defendant claims that he is entitled to equitable tolling. This
argument is waived because he did not advance it in district court. See Parker v.
Scott, 394 F.3d 1302, 1307 (10th Cir. 2005) (arguments for 2254 relief not
raised in district court will not be considered on appeal). Moreover, no
reasonable jurist could conclude that Defendant is entitled to equitable tolling.
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Generally, equitable tolling requires a litigant to establish two elements: (1) that
he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.
2008) (internal quotation marks omitted). An inmate bears a strong burden to
show specific facts to support his claim of extraordinary circumstances and due
diligence. Id. (brackets and internal quotation marks omitted). Defendant
cannot show any extraordinary circumstances justifying equitable tolling.
Although he states that he was denied counsel to help him seek state and federal
postconviction remedies, prisoners have no constitutional right to counsel in
habeas proceedings, see Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir.
2008), and denial of an attorney cannot be an extraordinary circumstance.
Defendant also asserts that he is entitled to equitable tolling on the ground
that he was the victim of several clerical errors by staff in the state court. In
particular, he presents evidence that a transcript of a providency hearing was filed
late in state court because the court reporter mistakenly thought that he had not
paid for transcription. But the error related to Defendants state-court appeal in
2009, after the 2254 limitations period had already expired. He does not
provide any reason why the delayed filing of the transcript in a state proceeding
prevented him from bringing a timely 2254 application; he only claims that the
confusion led to dismissal of his state-court appeal.
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III.
CONCLUSION
We GRANT Defendants motion to proceed in forma pauperis, DENY his
Harris L Hartz
Circuit Judge
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