F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 21, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RO GER L. GILBERT,
Petitioner-A ppellant,
v. No. 06-1001
(D.C. No. 05-CV-01925-ZLW )
LARRY REID, W arden Centennial (D . Colo.)
C orrectional Facility; C OLO RADO
ATTO RN EY G ENERAL,
Respondents-Appellees.
OR D ER AND JUDGM ENT *
Before O ’B RIE N and BROR BY, Circuit Judges, and BRO W N, ** District Judge.
Roger L. Gilbert, a Colorado prisoner proceeding pro se, seeks review of
the district court’s dismissal of his application for a writ of habeas corpus under
28 U.S.C. § 2254, based on a determination that the action was barred by the
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
**
The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.
one-year limitation period of 28 U.S.C. § 2244(d)(1). This court granted a
certificate of appealability (COA) limited to the question of w hether Gilbert’s
motion for appointment of post-conviction counsel constitutes a “properly filed
application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim” within the meaning of 28 U.S.C. § 2244(d)(2) and,
therefore, tolls the limitation period. W e review this legal issue de novo, see
Robinson v. Golder, 443 F.3d 718, 720 (10th Cir.), cert. denied, 127 S. Ct. 166
(2006) and affirm.
I.
Gilbert entered a plea of guilty in Colorado state court to the offense of
retaliation against a victim and, on October 22, 1999, he was sentenced to eight
years in a community correction program. He did not appeal. The record does
not contain copies of the relevant documents, but Gilbert alleges that at some
point after sentencing he requested appointment of post-conviction counsel. W e
accept his statement that counsel was appointed on April 20, 2000. 1 Presumably
his request predated the appointment.
1
W e do so because there is correspondence in the record from appointed
counsel dated September 2000, January 2001, September 2001, and September
2002. R., tab 7. The attorney filed the motion for post-conviction relief on
October 10, 2002, and a supplement on February 10, 2003. Id., tab 3. Colorado
generally grants defendants the right to appointed counsel in post-conviction
proceedings “unless the asserted claim for relief is wholly unfounded.” People v.
Hubbard, 519 P.2d 945, 947-48 (Colo. 1974). The theory is that, with the
assistance of counsel, a convicted defendant will be able “to assemble into a
single C rim. P. 35(b) motion all of the legal arguments w hich might result in
post-conviction relief.” Id. at 248.
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The community corrections program expelled Gilbert for non-compliance.
He was therefore returned to court and re-sentenced to a term of eight years’
imprisonment plus five years’ mandatory parole, on June 29, 2000. Gilbert did
not file a direct appeal.
On October 10, 2002, Gilbert’s appointed counsel filed a motion for post-
conviction relief pursuant to Colo. R. Crim. P. 35(c). The state district court
denied the motion; the Colorado Court of Appeals affirmed the ruling; and the
Colorado Supreme Court declined to grant certiorari review, on M arch 7, 2005.
Gilbert then filed a pro se application for a writ of habeas corpus relief
under 28 U.S.C. § 2254 in federal district court. The magistrate judge ordered
M r. Gilbert to show cause why the application should not be denied as time
barred under 28 U.S.C. § 2244(d), which provides in pertinent part,
(1) 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. The limitation period shall run from the
latest of--
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review ;
...
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.
In response to the show-cause order, Gilbert argued that the limitations
issue should be resolved in his favor, essentially arguing for the application of
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equitable tolling. Gilbert asserted that he was unfamiliar with federal procedural
requirements, he had been represented by negligent court-appointed counsel, his
habeas application was filed within a year of his discovery of prosecutorial
misconduct, and justice dictates that a federal court consider his arguments in
spite of the limitations period set by Congress. Gilbert conceded “in all honesty,
that had he been aware of certain limitations or known that such a crucial
procedure, specifically a [federal] habeas relief procedure, was a possibility then
there is no doubt that [he] would have insisted that counsel file his [state] post-
conviction (35c) immediately, within reason, following his conviction becoming
final.” R., Doc. 7 at 6.
Gilbert also argued that there was legal significance in the Colorado state
court’s appointment of counsel at his request for “the specific purpose of
litigating the petitioner’s post-conviction proceedings” on April 20, 2000. Id.
at 5. 2 W ithout specifically reaching Gilbert’s argument regarding the implications
of his request for appointment of post-conviction counsel, the district court
concluded § 2244(d) barred its consideration of the merits of M r. Gilbert’s habeas
application. The district court refused to allow Gilbert to proceed in forma
pauperis on appeal and denied his application for a COA. See M iller-El v.
Cockrell, 537 U .S. 322, 336 (2003) (stating that, without the issuance of a COA ,
federal courts of appeals lack jurisdiction to rule on habeas appeals). This court,
2
This date is, of course, over two months before the June 29 re-sentencing
date, on which he alleged his sentence “bec[a]me final.” Id. at 2.
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however, granted a CO A on the limited issue of whether Gilbert’s “motion for
counsel should toll the calculation of the time limitation for his habeas corpus
petition.” Order of June 19, 2006, at 5. 3 W e also permitted M r. Gilbert to
proceed in forma pauperis.
II.
It is undisputed that Gilbert’s Colo. R. Crim. P. 35(c) motion was filed over
two years after the expiration of the § 2244(d) limitation period. The legal
question is whether, under the terms of § 2244(d)(2), his motion for appointment
of post-conviction counsel may be considered a “properly filed application for
State post-conviction . . . review.” If so his Rule 35(c) motion was “pending”
sometime prior to April 20, 2000. “[W]e look to state law to determine whether
an application is ‘properly filed,’” but “we apply our own definition of ‘pending,’
. . . “interpreted . . . as a matter of federal law,” after “some inquiry into relevant
state procedural laws.” Gibson v. Klinger, 232 F.3d 799, 806 (10th Cir. 2000)
(quotations omitted).
3
As to any equitable tolling of the one-year limitation period, the district
court properly addressed and rejected Gilbert’s allegations. “[T]his equitable
remedy is only available when an inmate diligently pursues his claims and
demonstrates that the failure to timely file w as caused by extraordinary
circumstances beyond his control.” M arsh v. Soares, 223 F.3d 1217, 1220
(10th Cir. 2000). M oreover, a pro se inmate’s ignorance of the one-year
limitation period is insufficient to equitably toll the limitation period. Id.
W e decline to grant COA on Gilbert’s equitable tolling claim or any additional
arguments.
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Colorado statutory provisions and procedural rules contemplate that an
application for post-conviction relief set forth one or more specified grounds for
relief from judgment. See Colo. Rev. Stat. § 18-1-410(1); Colo. R. Crim. P.
35(c)(2). Thus a “properly filed application” in Colorado must challenge the
judgment of conviction and suggest the applicant’s post-conviction arguments.
Circuit courts interpreting corresponding provisions of other states have reached
similar conclusions. See Isley v. Ariz. Dep’t of Corr., 383 F.3d 1054, 1055
(9th Cir. 2004) (holding that an Arizona state prisoner’s filing of a “Notice of
Post-Conviction Relief” tolls the statute of limitations because the state’s
post-conviction process begins with, and requires, the filing of such a notice
containing “a request for relief from the judgment of conviction”); Voravongsa v.
Wall, 349 F.3d 1, 4-7 (1st Cir. 2003) (holding that the limitations period for a
Rhode Island prisoner’s federal habeas petition was not tolled by a request for
appointment of counsel under state law because the applicable state
post-conviction law requires a specific prayer for relief from judgment).
Further, as a matter of federal law, a habeas action is not “pending” when
a petitioner asks the district court to appoint counsel to help prepare his petition;
it becomes “pending” only after an actual request for relief from the judgment of
conviction, Woodford v. Garceau, 538 U .S. 202, 208-10 (2003). Filing a request
for counsel on the grounds that a constitutional violation may be raised in a future
habeas petition demonstrates that “the filing itself did not seek any relief on the
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merits.” Id. at 210 n.1. The “nearly identical question . . . in the context of
interpreting” Colorado post-conviction law, Voravongsa, 349 F.3d at 4, results in
the same answer.
There is no indication that Gilbert’s motion for the appointment of counsel
(or the appointment itself) constituted a properly filed application for state post-
conviction relief that was pending before the expiration of the one-year limitation
period in § 2244(d)(1). Accordingly, Gilbert has failed to meet his burden to
demonstrate the filing of a state post-conviction motion which would toll the
one-year time limit of § 2244(d)(1). See Burger v. Scott, 317 F.3d 1133, 1140-41
(10th Cir. 2003). The district court correctly determined that Gilbert’s petition
was time-barred and not eligible for consideration on the merits. The judgment of
the district court is AFFIRM ED. Gilbert’s motions for appointment of counsel
and for assignment to mediation are DENIED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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