FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 4, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MICHEAL JAMES CHIPMAN, a/k/a
Michael Chipman,
Petitioner - Appellant,
v. No. 17-1420
(D.C. No. 1:17-CV-00886-LTB)
CYNTHIA H. COFFMAN, The Attorney (D. Colo.)
General of the State of Colorado,
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
_________________________________
Micheal Chipman, a state parolee 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 Chipman a COA.
BACKGROUND
On June 22, 2002, a jury convicted Chipman for a laundry list of state crimes.
He directly appealed those convictions to the Colorado Court of Appeals. On
*
This order is not binding precedent, except under the doctrines of law of the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). But we won’t serve as his advocate. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
February 8, 2007, the court affirmed some of his convictions, but reversed and
remanded the following convictions for a new trial: one of the two counts charging
prohibited use of a weapon; attempted first-degree murder; menacing; first-degree
assault; reckless endangerment; and aggravated intimidation of a witness.
Chipman alleges that on March 29, 2008, he filed a Colo. R. Crim. P. 35(c)
post-conviction application.
The state retried Chipman on the reversed counts, and the second jury
convicted him of attempted second-degree murder, first-degree burglary, menacing,
second-degree assault, reckless endangerment, and trespass. The state trial court
sentenced him to twenty-five years imprisonment, to be served consecutively to the
eighteen-month jail sentence imposed for the original convictions that the Colorado
Court of Appeals had affirmed. Chipman directly appealed these convictions, too, but
on May 22, 2009, he voluntarily dismissed that appeal.
On November 10, 2009, Chipman filed a Colo. R. Crim. P. 35(b) post-
conviction motion. On April 30, 2010, the state trial court granted his 35(b) motion
and resentenced him.
On July 6, 2012, Chipman filed a Colo. R. Crim. P. 35(c) motion, seeking
post-conviction relief because he had allegedly received ineffective assistance of trial
counsel in both of his trials and alleging that he was incompetent during his first trial.
The state trial court denied his motion. Chipman appealed. On October 8, 2015, the
Colorado Court of Appeals dismissed the appeal in part and otherwise affirmed the
2
state trial court. Chipman filed a writ of certiorari. On April 11, 2016, the Colorado
Supreme Court denied certiorari.
On April 11, 2017, Chipman filed a 28 U.S.C. § 2254 petition in the United
States District Court for the District of Colorado. In this petition, Chipman alleged
that at trial, “Colorado laws concerning insanity and competency to stand trial were
not followed” and that he was “browbeaten into not testifying because he would
‘appear insane to the jury.’” R. at 7. He also alleged that the prosecutor “lied” to
“illegally raise the bond to a level that could not be reached, without showing that
bond conditions had been violated,” which in turn violated his Eighth Amendment
rights. Id. at 8. He contended that he was deprived of due process because a police
detective involved in his case had ordered him “never to return home under personal
threats” and that same detective committed perjury in violation of Chipman’s Fifth
Amendment rights. Id. He alleged that the prosecution threatened his mother, that his
defense team never called his mother as a witness, and that the court barred his
mother from the courtroom. He alleged that when the Colorado Court of Appeals
considered his Rule 35(c) motion, it got some facts concerning his representation
incorrect, and that documents were served on him “that he had no knowledge of or
reasonable possibility of discovering until years later.” Id.
The district court denied Chipman’s § 2254 petition. The court concluded that
Chipman had untimely filed his petition because AEDPA’s one-year statute of
limitations had begun to run on May 23, 2009, “the day after [Chipman’s] direct
appeal was dismissed and the conviction and sentence became final.” Id. at 187. And
3
the court determined that on November 9, 2009, “the day prior to when [Chipman]
filed the Rule 35(b) motion,” the AEDPA one-year statute of limitations became
tolled. Id. The district court concluded that tolling expired on June 18, 2010, when
Chipman failed to appeal the state trial court’s denial of his Rule 35(b) motion within
the time period to do so. And by July 6, 2012, when Chipman filed his Rule 35(c)
motion, “919 days had run for purposes of” AEDPA’s one-year statute of limitations.
Id.
Chipman now appeals.
DISCUSSION
Before Chipman’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 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[.]” Slack, 529 U.S. at 484.
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 runs from the date the state-court judgment
becomes final by conclusion of direct review or the date when the time to seek such
review expires, among other dates not relevant to this appeal. Id. State applications
for post-conviction relief filed within AEDPA’s one-year limitation toll the statute of
limitations. § 2244(d)(2); Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).
4
Equitable tolling can also 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 (quoting Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Here, Chipman contends that the Rule 35(c) motion he filed in 2008 is the
motion that the Colorado Court of Appeals adjudicated on October 8, 2015. The
record shows that Chipman filed his Rule 35(c) motion on July 6, 2012. By that date,
919 days had passed between the date his conviction became final and the date he
filed his Rule 35(c) motion (giving Chipman appropriate credit for tolling during the
pendency of his Rule 35(b) motion). So any reasonable jurist would regard
Chipman’s petition as untimely, and the record supports the district court’s
conclusion that Chipman failed to demonstrate entitlement to equitable tolling.
CONCLUSION
We deny Chipman a COA. We dismiss this appeal.
Entered for the Court
Gregory A. Phillips
Circuit Judge
5