WILLIE J. TRIMBLE, JR., Petitioner - Appellant,
WARDEN: MATHEW HANSEN, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees.
No. 1:18-CV-01336-LTB) (D. Colo.)
BACHARACH, McKAY, and O'BRIEN, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
TERRENCE L. O'BRIEN UNITED STATES CIRCUIT JUDGE
December 9, 2009, Willie J. Trimble was sentenced to life
imprisonment without parole after a Colorado state jury
convicted him of sexual assault and felony murder. The
Colorado Court of Appeals (CCA) affirmed his conviction on
direct appeal on September 12, 2013, and the Colorado Supreme
Court denied his certiorari petition on July 28, 2014.
Trimble delivered a state petition for post-conviction review
to the prison mailroom on October 25, 2015; it was filed
three days later. The state trial judge denied relief. The
CCA affirmed and the Colorado Supreme Court again denied
certiorari review on May 21, 2018. Four days later, Trimble
filed a pro se 28 U.S.C. § 2254 petition.
district judge dismissed the petition as time-barred. Trimble
wishes to appeal and seeks a certificate of appealability
(COA), a jurisdictional prerequisite. 28 U.S.C. §
2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). The judge denied a COA, so he renews his request
is warranted "only if the applicant has made a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). Here, Trimble must
show "jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling." Slack v. McDaniel, 529 U.S.
473, 484 (2000). The judge's written opinion was
abundantly clear and the result indisputably correct. A COA
applicant who merely regurgitates arguments made in the
district court is doomed to failure. He must tangibly show
how and why the judge's ruling is reasonably debatable.
That is hard work; Trimble hasn't even broken a sweat.
Trimble did not seek certiorari review with the United States
Supreme Court during his direct appeal proceedings, the judge
recognized his conviction as final on October 27, 2014-the
next business day after the 90-day window closed for filing a
petition for a Writ of Certiorari with the United States
Supreme Court. See Sup. Ct. R. 13.1; Locke v.
Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Absent
tolling, he had one year from that date, or until October 27,
2015, in which to apply for federal habeas relief. 28 U.S.C.
§ 2244(d)(1)(A). He did not file his § 2254
petition until May 25, 2018.State petitions for
post-conviction relief generally toll the time limitations
for seeking federal habeas relief. 28 U.S.C. §
2244(d)(2). Be that as it may, the federal district judge
concluded Trimble was not entitled to statutory tolling
because the state court received his state petition for
post-conviction relief on October 28, 2015, one day after the
federal habeas limitations period had expired. Trimble
contends the federal judge erred because he is entitled to
the "mailbox rule." Aplt.'s Opening Br. &
COA Mot. at 7. In this context, state-not federal-procedural
law governs. Garcia v. Shanks, 351 F.3d 468, 471-72
(10th Cir. 2003). To Trimble's benefit, Colorado has a
mailbox rule. Colo. R. Civ. P. 5(f) (2018). Assuming he
complied with that rule's requirements, his state habeas
petition was "filed" on October 25, 2015, within
the one-year allotted by § 2244(d). Accordingly, his
federal habeas limitations period was statutorily tolled on
that date pending resolution of his state habeas claims.
See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir.
2006). That helps him, but not enough.
judge also realized, state habeas proceedings toll the
federal habeas statute of limitations while those proceedings
are "pending." 28 U.S.C. § 2244(d)(2).
Trimble's state habeas proceedings were pending only
until May 21, 2018, when the Colorado Supreme Court denied
certiorari review. The next day statutory tolling ceased and
the available time for filing a federal habeas petition
resumed its relentless decline. Lawrence v. Florida,
549 U.S. 327, 332 (2007) (tolling ceases under §
2244(d)(2) "[a]fter the State's highest court has
issued its mandate or denied review"). The bar imposed
by federal law fell two days after the Colorado Supreme Court
denied certiorari review- May 23, 2018. Trimble's May 25,
2018 filing came too late.
urges us to consider his § 2254 petition as timely
because he did not receive a copy of the Colorado Supreme
Court order denying his certiorari petition until May 24,
2018, and he filed his petition the next day. Circuit courts
have consistently held the federal habeas limitations period
not to be subject to any sort of "notice rule."
Garcia, 351 F.3d at 472 (collecting cases). The
statutory tolling period ends the day the state supreme court
denies review; not when the prisoner receives notice of that
ruling or his paper copy. Id. ("Section
2244(d)(2) clearly and unambiguously states that the federal
limitations period is tolled only during the time a properly
filed state application for collateral review is
pending in state court.").
only remaining question is whether Trimble can show he is
entitled to equitable tolling. To do so, he must demonstrate
"(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way
and prevented timely filing." Holland v.
Florida, 560 U.S. 631, 649 (2010) (citation and
quotations omitted). This doctrine applies only in "rare
and exceptional circumstances." Gibson v.
Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (quotations
omitted). Rightly so; "[a]ny invocation of equity to
relieve the strict application of a statute of limitations
must be guarded and infrequent, lest circumstances of
individualized hardship supplant the rules of clearly drafted
statutes." Rouse v. Lee, 339 F.3d 238, 246 (4th
Cir. 2003) (en banc) (quotations omitted). Thus,
Trimble's burden is a heavy one. Equitable tolling
applies only if he "show[s] specific facts to support
his claim of extraordinary circumstances and due
diligence." Yang v. Archuleta, 525 F.3d 925,
928 (10th Cir. 2008) (quotations omitted).
considering the application of equitable tolling to federal
habeas petitions, we have recognized "a prisoner's
lack of knowledge that state courts have reached a final
resolution of his case can provide grounds for equitable
tolling if the prisoner has acted diligently in the
matter." Woodward v. Williams, 263 F.3d 1135,
1143 (10th Cir. 2001) (citing Phillips v. Donnelly,
216 F.3d 508, 511 (5th Cir.) (per curiam), amended in
part by 223 F.3d 797 (5th Cir. 2000)); see also Diaz
v. Kelly, 515 F.3d 149, 155 (2d Cir. 2008) (noting that
the Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits
"have concluded that prolonged delay by a state court in
sending notice of a ruling that completes exhaustion of state
court remedies can toll the [§ 2244(d)] limitations
period" and collecting cases). But "not in every
case will a prisoner be entitled to equitable tolling until
he receives notice"-it depends on the facts of each
case. Knight v. Schofield, 292 F.3d 709, 711 (11th
tolling requires an extraordinary circumstance preventing
timely filing. Holland, 560 U.S. at 649. A prolonged
delay in the state court's mailing of an order or in the
prisoner's receipt thereof can be one such extraordinary
circumstance. See, e.g., Woodward, 263 F.3d
at 1142-43 (petitioner had not received notice twenty-five
days after state court issued its order); Knight,
292 F.3d at 711 (eighteen-month delayed notice); Miller
v. Collins, 305 F.3d 491, 496 (6th Cir. 2002) (six-month
delayed notice). "In contrast, an ordinary de minimis
delay incident to transmission of mail from court to prisoner
would not be an extraordinary circumstance warranting
equitable tolling." Earl v. Fabian, 556 F.3d
717, 723 n.3 (8th Cir. 2009); see also Saunders v.
Senkowski, 587 F.3d 543, 550 (2d Cir. 2009) (seven-day
delay in notice "occasioned by the normal course of the
mail" is not "an 'extraordinary'
circumstance for purposes of equitable tolling"). As the
Fourth Circuit has explained, "[e]very person knows, or
should know, that it can take at least several days to
receive mail even from within the same postal jurisdiction,
and he can, and may reasonably be required to, adjust his
conduct accordingly." Spencer v. Sutton, 239
F.3d 626, 630 (4th Cir. 2001). If this were not so, applying
equitable tolling because of an ordinary mailing period
"effectively would be nothing short of [an improper
judicial extension of] the legislatively-prescribed one-year
statute of limitations." Id. That we will not
there is no allegation or evidence of a prolonged delay on
the part of the Colorado Supreme Court in sending Trimble
notice of its denial of review that would constitute an
extraordinary circumstance warranting equitable tolling. We
are dealing only with the brief interval between a prompt
state court mailing and Trimble's receipt of that
court's order-he received his copy just three days after
it was issued. That's not extraordinary by any measure.
See id. ("Ordinary delivery time is not a
'rarity,' nor is the charge of knowledge of such to
the habeas petitioner 'unconscionable.'").
whether equitable tolling is appropriate in a given case
depends not only on the allegation of delayed notice, but
also on whether the prisoner pursued his rights with due
diligence. Holland, 560 U.S. at 649. In this vein,
Trimble contends requiring him to file for federal habeas
relief the same day the Colorado Supreme Court denied his
certiorari petition is "unfair" because he is a pro
se prisoner. Aplt.'s Opening Br. & COA Mot. at 8. To
begin, this is factually inaccurate-the bar imposed by the
statute of limitations descended two days after the Colorado
Supreme Court denied review. To continue, liberal
construction of pro se petitions has limits; petitioners are
bound by federal procedural rules and, without more, a
party's ignorance of the law and pro se status do not
give rise to equitable tolling. See, e.g., Marsh
v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). In
summary, pleas ...