Carrillo v. Zupan, Civil Action No. 15-cv-00376-GPG
| Decision Date | 19 May 2015 |
| Docket Number | Civil Action No. 15-cv-00376-GPG |
| Parties | DAVID RICHARD CARRILLO, Applicant, v. DAVID ZUPAN, Warden of the Colorado Territorial Correctional Facility, and CYNTHIA COFFMAN, THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. |
| Court | U.S. District Court — District of Colorado |
DAVID RICHARD CARRILLO, Applicant,
v.
DAVID ZUPAN, Warden of the Colorado Territorial Correctional Facility,
and CYNTHIA COFFMAN, THE ATTORNEY GENERAL
OF THE STATE OF COLORADO, Respondents.
Civil Action No. 15-cv-00376-GPG
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
May 19, 2015
ORDER OF DISMISSAL
Applicant, David Richard Carrillo, is currently incarcerated in Canon City, Colorado. On February 24, 2015, Applicant filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 that challenges his conviction and sentence in State of Colorado Criminal Case 93CR1048. (ECF No. 1). In an order entered on March 24, 2015, Magistrate Judge Gordon P. Gallagher directed Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those affirmative defenses in this action. (ECF No. 6).
After receiving an extension of time, Respondents filed their Pre-Answer Response on April 22, 2015 asserting that the application was time-barred. (ECF No. 12). Applicant filed a Reply on May 5, 2015. (ECF No. 13).
The Court must construe the application and other papers filed by Mr. Carrillo liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S.
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519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the action will be dismissed as time-barred.
Applicant raises four claims in the Application: (1) the trial court violated his right to due process by dismissing a juror and replacing him with an alternate after the jury had already rendered a verdict favorable to him; (2) the trial court violated his right to due process by trying him with a co-defendant who was also the victim of a count of contributing to the delinquency of a minor; (3) his trial counsel was ineffective for not recognizing that being tried jointly with the co-defendant who was also the victim of a count created an actual conflict of interest; and (4) his trial counsel was ineffective for failing to seek having the jury instructed on a lesser non-included offense of accessory to a crime.
Mr. Carrillo was accused of participating in a gang killing. (ECF No. 12-5). He was tried by a jury along with a co-defendant, who was a juvenile at the time of the murder. The jury found Mr. Carrillo guilty of first degree murder, conspiracy to commit first degree murder, and contributing to the delinquency of a minor. (Id.). On March 23, 1995, the trial court sentenced Mr. Carrillo to life in prison for the murder, twenty years in prison for conspiracy, and eight years in prison for contributing to the delinquency of a minor. (ECF 12-1 at 15).
The judgment of conviction and the sentence were affirmed by the Colorado Court of Appeals on direct appeal on March 20, 1997. See People v. Carrillo, 946 P.2d 544 (Colo. App. 1997) (ECF No. 12-3). On February 22, 1999, the Colorado Supreme
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Court also affirmed his conviction. See People v. Carrillo, 974 P.2d at 478 (Colo. 1999) (ECF No. 12-5).
On June 20, 2000, Mr. Carrillo filed a habeas corpus application with this court. Carrillo v. Williams, 00-cv-1261, (ECF No. 12-7). On June 7, 2001, he filed a motion to voluntarily dismiss his habeas application, which the court granted without prejudice on January 4, 2002. (Id.)
On August 5, 2002, Mr. Carrillo filed a pro se Crim. P. 35c post-conviction motion asserting ineffective assistance of counsel during his trial. (ECF No. 12-1 at 7). A supplemental post-conviction motion was filed on December 9, 2005 after Mr. Carrillo retained counsel. (Id. at 6).
After holding a hearing on the motion, the court issued a written order denying Mr. Carrillo's 35(c) motion on December 28, 2006. (ECF 12-1 at 5). On appeal, the Colorado Court of Appeals affirmed. See People v. Carrillo, No. 07CA0267 (Colo. App. Oct. 16, 2008) (ECF No. 12-9). On March 9, 2009, the Colorado Supreme Court denied certiorari review. (ECF No. 12-10).
While the appeal of his post-conviction motion was still pending, on December 13, 2007, Mr. Carrillo filed a second post-conviction motion through newly retained counsel. (See ECF No. 12-1 at 4). The court held a three-day evidentiary hearing on Mr. Carrillo's second post-conviction motion. (See id. at 2). The court issued a written order denying Mr. Carrillo's second post-conviction motion on July 1, 2011. (See id.). The Colorado Court of Appeals confirmed. People v. Carrillo, No. 11CA1644 (Colo. App. Aug. 8, 2013) (ECF No. 12 -12). The Colorado Supreme Court denied certiorari review on July 28, 2014. (ECF No. 12-14). Mr. Carrillo filed a petition for writ of certiorari to the
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U.S. Supreme Court, which was denied on December 8, 2014. See Carrillo v. Colorado, 135 S. Ct. 756 (2014).
On December 22, 2014, Mr. Carrillo filed a motion to correct an illegal sentence pursuant to Crim. P. 35(a). (ECF No. 12-1 at 1). The court denied this motion on January 13, 2015. (Id.). On February 9, 2015, Mr. Carrillo filed a motion to reduce the restitution award by $30.00, which the court granted the same day. (Id.).
The instant habeas corpus application was filed on February 25, 2015.
Respondents concede that Mr. Carrillo has exhausted all of the claims presented in his habeas application. However, Respondents argue that the application is time-barred.
Mr. Carrillo argues that the AEDPA one-year limitation clock started from the beginning when the trial court amended his sentence on February 9, 2015 by reducing the amount of restitution. (ECF No. 1 at 19 and No. 13 at 2). In the alternative, Mr. Carrillo argues he is entitled to equitable tolling because he was diligently pursuing his claims but faced extraordinary circumstances as a result of ineffective assistance of appellate counsel. (Id.).
In this case, the first pertinent question is whether the trial court's reduction in the amount of restitution by $30.00 resulted in a new judgment for purposes of re-starting the AEDPA one-year limitation clock.
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Section 2244(d) sets out the one-year limitation period 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;(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.
(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;
© 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.
First, the Court must determine whether the trial court's February 2, 2015 Order reducing restitution started the AEDPA one-year limitation clock again. Mr. Carrillo argues that the order reducing restitution was a new judgment and, therefore, the clock started anew. It is true that for habeas applications, in some circumstances, a "new judgment" can be significant. The Supreme Court has held, when reviewing the issue of whether a habeas application is "successive," that where there is a new judgment intervening between two habeas petitions, an application challenging the resulting new
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judgment is not second or successive. Magwood v. Patterson, 561 U.S. 320, 130 S. Ct. 2788, 2802, 177 L. Ed. 2d 592 (2010).
However, courts have not extended the Magwood "new judgment" rationale to cases where an amended judgment was simply the result of correcting a clerical error. May v. Kansas, 562 Fed. Appx. 644, 645-646 (10th Cir. 2014)(amended journal entry of judgment correcting error that said sentences would run consecutively did not make convictions non-final or reset the date of the state court judgment for either timeliness or second-or-successive purposes ); United States v. Cano, 558 Fed. Appx. 936, 942 n.6, 2014 WL 929053, at *4 n.6 (11th Cir. Mar. 11, 2014) ("The fact that the district court entered an amended judgment to correct clerical errors does not result in a new judgment that is exempt from the rules on second or successive petitions pursuant to 28 U.S.C. § 2255."); United States v. Ledesma-Cuesta, 476 F. App'x 412, 412 n.2 (3d Cir. 2012) (per curiam) ("[Appellant] points to no precedential opinion that suggests that the correction of a clerical error serves to either restart the limitations period or negate the existence of a prior attempt at collateral relief."); see also In re Martin, 398 F. App'x 326, 327 (10th Cir. 2010) (where amended judgment entered to correct clerical error in nature of charge for which defendant had been convicted, "the amended judgment merely corrected a clerical error—one which did not rise to the level of constitutional error, as [appellant] was fully...
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