Petition for Writ of Certiorari — Darneau Versill Pepper, Petitioner v. Dean Williams, Executive Director, Colorado Department of Corrections, et al.

Case l:21-cv-00313-LTB-GPG Document 24 Filed 10/06/21 USDC Colorado Page 1 of 5

Appellate Case: 21-1210

Document: 010110587095

Date Filed: 10/06/2021

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

October 6, 2021

Christopher M. Wolpert

Clerk of Court

DARNEAU VERSILL PEPPER,

Petitioner - Appellant,

v.

DEAN WILLIAMS; LARRY SCHULTZ;

THE ATTORNEY GENERAL OF THE

STATE OF COLORADO,

-----

No. 21-1210

(D.C. No. 1:21 -CV-00313-LTB-GPG)

(D. Colo.)

Respondents - Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before HARTZ, KELLY, and McHUGH, Circuit Judges.

Petitioner-Appellant Dameau Pepper, a state inmate appearing pro se, seeks a

Certificate of Appealability (COA) to appeal from the district court’s dismissal of his

habeas petition under 28 U.S.C. § 2254 as time barred. See Pepper v. Williams, No. 21cv-00313 (D. Colo. May 6, 2021). Exercising jurisdiction under 28 U.S.C. § 1291, we

deny a COA and dismiss the appeal.

* This order is not binding precedent except under the doctrines of law of the case,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.

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The district court’s resolution of the procedural issue is not reasonably debatable.

The one-year limitation period begins running on “the date on which the judgment

became final by the conclusion of direct review or the expiration of the time for seeking

such review.” 28 U.S.C. § 2244(d)(1)(A). For Mr. Pepper, that date was June 10, 2013

— that is, 90 days after the Colorado Supreme Court denied review of his direct appeal

on March 11, 2013, when his period for seeking certiorari in the United States Supreme

Court expired. See Sup. Ct. R. 13.1: see also Gonzalez v. Thaler, 565 U.S. 134, 150

(2012); 1 R. 194. Thus, on June 10, 2014, § 2244(d)’s limitations period closed Mr.

Pepper’s window for federal habeas relief. See 1 R. 194—95.

Mr. Pepper argues that the magistrate judge and district court failed to account for

15 days of tolling. Aplt. Br. at A-5 to A-8. He submits that state court proceedings from

April 9 to April 24, 2013, should toll his 90-day clock for appeal to the United States

Supreme Court, and thus delay by 15 days the dates when § 2244(d)’s time bar began

running and eventually barred further habeas petition. Id This argument was not raised

below and is waived, see Morales-Femandez v. I.N.S.. 418 F.3d 1119, 1119 (10th Cir.

2005), but in any event appears incorrect. The state court “reopened” Mr. Pepper’s case

on April 9, 2013, and then issued a writ of habeas corpus on April 18 to transfer him for a

hearing set for April 25 to unseal the record. 1 R. 85—86. It “closed” the case on April

24 and unsealed the record on April 25 after Mr. Pepper had withdrawn his objection. 1

R. 85-86. These activities have nothing to do with an entry of final judgment, and thus

have no effect on the 90-day period. Compare Sup. Ct. R. 13.1, 13.3, with 1 R. 85-86.

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citation omitted). Where evidence offered “merely corroborates defense evidence that

the jury rejected,” it does not constitute the “showing of factual innocence” required.

Park v. Reynolds. 958 F.2d 989, 996 (10th Cir. 1992).

We DENY a COA, DENY IFP, and DISMISS the appeal.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Gordon P. Gallagher, United States Magistrate Judge

Civil Action No. 21-cv-00313-LTB-GPG

DARNEAU VERSILL PEPPER,

Petitioner,

v.

DEAN WILLIAMS,

LARRY SCHULTZ, and

THE ATTORNEY GENERAL OF THE STATE OF COLORADO

Respondents.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court on the Application fora Writ of Habeas

Corpus Pursuant to 28 U.S.C. § 2254 filed pro se by Petitioner Darneau Versill Pepper

on February 1, 2021. (ECF No. 1). Because Petitioner is pro se, the Court liberally

construes his filings, but will not act as an advocate. James v. Wadas, 724 F.3d 1312

1315 (10th Cir. 2013). The matter has been referred to this Court for recommendation

(ECF No. 13). 1

1 Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written

objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R.

Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to

which the objections are being made. The District Court need not consider frivolous, conclusive or

general objections. A party’s failure to file such written objections to proposed findings and

recommendations contained in this report may bar the party from a de novo determination by the District

Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83

(1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings

and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved

party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted

or adopted by the District Court. Thomas v. Am, 474 U.S. 140, 155 (1985); Moore v. United States, 950

F.2d 656, 659 (10th Cir. 1991).

1

The Court has reviewed the filings to date, considered the entire case file, the

applicable law, and is advised of the premises. For the reasons that follow, this Court

respectfully recommends dismissing Petitioner’s § 2254 application as untimely.

I.

BACKGROUND

Petitioner is in the custody of the Colorado Department of Corrections, currently

serving his sentence at a federal prison in Texas. Petitioner brings this § 2254 action to

challenge a criminal conviction entered against him by the El Paso County District Court

in case number 08CR636. (ECF No. 1 at 2). In 2009, a jury found Petitioner guilty of two

counts of first-degree murder, eight counts of attempted murder, two counts of firstdegree assault, seven crime-of-violence counts, and one count of possessing a weapon

i

as a previous offender. (See ECF No. 10-5).

On February 10, 2021, the Court ordered Respondents to file a pre-answer

response limited to addressing the procedural defenses of timeliness and exhaustion of

state remedies. (ECF No. 5). Respondents have filed a Pre-Answer Response,

contending the application should be dismissed as untimely under the one-year statute

of limitations found in the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA).2 (ECF No. 10). Petitioner filed a response to the motion, countering that the

application should be considered timely. (ECF No. 11). The Court now addresses

whether the § 2254 application is timely.

2 Because the Court finds the application untimely, it does not address whether Petitioner’s claims are

cognizable or exhausted.

2

II.

DISCUSSION

Respondents argue the application is barred by AEDPA’s one-year limitation

period, 28 U.S.C. § 2244(d). That statute provides as follows:

(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;

(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws of

the United States is removed, if the applicant was prevented

from filing by such State action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has been

newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of

due diligence.

(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.

28 U.S.C. § 2244(d). Petitioner does not allege he was prevented by unconstitutional

state action from filing this action sooner, he is not asserting any constitutional rights

newly recognized by the Supreme Court and made retroactively applicable to cases on

collateral review, and there are no allegations to show the factual predicate for his

claims could not have been discovered through the exercise of due diligence before the

state proceedings concluded. See 28 U.S.C. § 2244(d)(1)(B) - (D). As a result, the one3

year limitation period began to run on the date Petitioner’s judgment of conviction

became final. See 28 U.S.C. § 2244(d)(1)(A).

Finality occurs on “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review[.]” 28

U.S.C. § 2244(d)(1)(A). Here, the Colorado Supreme Court denied certiorari review of

Petitioner’s direct appeal on March 11,2013. (ECF No. 10-3). Because Petitioner did

not file a petition for certiorari in the United States Supreme Court, his direct appeal

concluded when the time for filing a certiorari petition in the United States Supreme

Court expired. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (if a defendant directly

appeals to the state’s highest court, the conviction is final on the expiration of the 90day period for seeking certiorari in the United States Supreme Court); see also S. Ct. R.

13.1. Therefore, Petitioner had until June 10, 2013 to seek certiorari in the United States

Supreme Court—90 days after the Colorado Supreme Court’s March 11, 2013 denial of

certiorari. Since he did not seek such review, his state judgment of conviction became

final, and the AEDPA statute began to run, on June 10, 2013. See Holland v. Florida,

560 U.S. 631, 635 (2010); Al-Yousifv. Trani, 779 F.3d 1173, 1178 (10th Cir. 2015).

From the date his conviction became final on June 10, 2013, the one-year

AEDPA statute of limitations required Petitioner to seek relief under § 2254 by June 10,

2014. Petitioner did file a § 2254 application in this Court on August 9, 2013. See

Pepper v. Archuleta, Civil Action No. 13-cv-02145-LTB (D. Colo. Aug. 9, 2013). Yet after

realizing that he hadn’t exhausted all claims in state court, Petitioner voluntarily

dismissed that action without prejudice on December 4, 2013. Id. at ECF No. 16. An

earlier-filed federal habeas application, however, does not toll the AEDPA statute of

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limitations. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that “an

application for federal habeas corpus review is not an ‘application for State post­

conviction or other collateral review’ within the meaning of 28 U.S.C. § 2244(d)(2)” and

“therefore did not toll the limitation period during the pendency of [a petitioner’s] first

federal habeas petition”).

Petitioner also filed a motion for postconviction relief in state court on June 17,

2014. (ECF No. 10-1 at 45). But the motion did not toll the statute of limitations because

it was filed after the AEDPA statute expired on June 10, 2014. See Clark v. Oklahoma,

468 F.3d 711, 714 (10th Cir. 2006) (stating that postconviction motions toll the one-year

limitation period under § 2244(d)(2) only if they are filed within the one-year limitation

period). Because Petitioner did not initiate this habeas action until February 1, 2021, it is

time-barred unless Petitioner establishes a basis for excusing the delay.

In his reply, Petitioner contends this § 2254 application should be considered

timely. (ECF No. 11). First, Petitioner explains that, in reliance on legal advice from his

then-attorney, he filed the federal habeas corpus application in 2013. (Id. at 4-6). But

Petitioner had to voluntarily dismiss the action without prejudice because he was not

advised that before filing a habeas application under § 2254 he had to exhaust state

remedies. (See id. at 5-6). Second, Petitioner maintains he worked diligently to exhaust

state remedies after dismissing his first federal habeas action. (Id. at 6 (explaining that

he “had to obtain transcripts, which took a few months”; “had to review all transcripts for

any ineffective assistance issues”; and then he diligently submitted his postconviction

motion in state court).

Equitable tolling is available to Petitioner “only if he shows (1) that he has been

5

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way and prevented timely filing.” Holland, 560 U.S. at 649 (quotations and citation

omitted). “An inmate bears a strong burden to show specific facts to support his claim of

extraordinary circumstances and due diligence.” Yang v. Archuleta, 525 F.3d 925, 928

(10th Cir. 2008) (brackets and quotations omitted).

To start, Petitioner’s suggestion that he received inaccurate legal advice

(regarding either the AEDPA statute of limitations or exhaustion requirement) does not

toll the statute of limitations. “[I]t is well established that ignorance of the law, even for

an incarcerated pro se petitioner, generally does not excuse prompt filing.” Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (cleaned up). The Tenth Circuit has also

“rejected attorney miscalculation or mistake as to the limitations period as an

extraordinary circumstance’justifying equitable tolling.” Davidson v. McKune, 191 F.

App’x 746 (10th Cir. 2006) (unpublished). Petitioner’s first argument is therefore

unavailing.

Petitioner’s second argument—that he diligently pursued postconviction relief in

state court—also does not excuse the untimely filing. Petitioner makes no showing of

specific facts to establish he pursued his rights diligently and that some extraordinary

circumstance prevented timely filing of this § 2254 action. Petitioner cites no authority,

and the Court is aware of none, for the proposition that requesting and reviewing statecourt transcripts qualifies as an extraordinary circumstance standing in the way of timely

filing.

Petitioner’s claim of diligence in pursuing state postconviction remedies really

seems to be an argument for the application of statutory tolling. 28 U.S.C. §

6

2244(d)(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.”). But according to

the state-court register of actions, Petitioner’s 35(c) motion was filed on June 17, 2014

which was after the AEDPA statute had expired. (ECF No. 10-1 at 45). This Court may

not disregard that fact. See 28 U.S.C. § 2254(e)(1)(“a determination of a factual issue

made by a State court shall be presumed to be correct. The applicant shall have the

burden of rebutting the presumption of correctness by clear and convincing evidence.”).

And insofar as Petitioner contends his 35(c) motion should be deemed filed as of the

date he signed it (June 12, 2014), that does not help him because the AEDPA statute

expired two days earlier, on June 10, 2014. As such, equitable tolling does not save this

untimely application.

III.

RECOMMENDATION

For these reasons, this Court respectfully recommends denying the Application

fora Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) and dismissing

this action with prejudice as untimely.

DATED April 13, 2021.

BY THE COURT:

Gordon P. Gallagher

United States Magistrate Judge

7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 21-cv-00313-LTB-GPG

DARNEAU VERSILL PEPPER,

Petitioner,

v.

DEAN WILLIAMS,

LARRY SCHULTZ, and

THE ATTORNEY GENERAL OF THE STATE OF COLORADO

Respondents.

ORDER

This matter is before the Court on the Recommendation of United States

Magistrate Judge filed April 13, 2021. (ECF No. 14). Petitioner has filed timely written

objections to the Recommendation. (ECF No. 15). The Court has therefore reviewed the

Recommendation de novo in light of the file and record in this case. On de novo review

the Court concludes that the Recommendation is correct for the reasons stated therein.

To the extent Petitioner’s objections argue that the COVID-19 pandemic should

equitably toll the time for filing this § 2254 action, the argument is rejected. For the

reasons stated in the Recommendation, the one-year AEDPA statute of limitations

expired on June 10, 2014. Thus, the month-long COVID-related lockdown ending in

April of 2021 that Petitioner references in his objections (ECF No. 15 at 1-2), occurred

well after the statute of limitations expired in this case. Donald v. Pruitt, 2021 WL

1526421, at *2 (10th Cir. 2021) (unpublished) (affirming that equitable tolling not

1

warranted where the petitioner “had failed to allege with any specificity what steps he

had taken to pursue his claim diligently before the COVID-19 restrictions went into

place[.]”). Such an objection is therefore unavailing.

Accordingly, it is

ORDERED that Petitioner’s written objections (ECF No. 15) are OVERRULED. It

is

FURTHER ORDERED that the Recommendation of United States Magistrate

Judge (ECF No. 14) is ACCEPTED AND ADOPTED. It is

FURTHER ORDERED that the Application for a Writ of Habeas Corpus Pursuant

to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED WITH PREJUDICE as untimely for the

reasons stated in the Recommendation. It is

FURTHER ORDERED that no certificate of appealability will issue because

Petitioner has not made a substantial showing of the denial of a constitutional right. It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is

DENIED WITHOUT PREJUDICE to the filing of a motion seeking leave to proceed in

forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this

dismissal would not be taken in good faith.

DATED at Denver, Colorado, this 6th

day of

May

, 2021.

BY THE COURT:

s/Lewis T. Babcock

LEWIS T. BABCOCK, Senior Judge

United States District Court

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