Opinion
Civil No. 02-0057 BB/WWD
August 30, 2002
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the proposed findings and recommended disposition of the United States Magistrate Judge ("PFD"). Objections to the PFD have been filed and the Court has made a de novo determination of those portions of the Magistrate Judge's PFD objected to. Having considered the objections, the Court finds that the PFD of the United States Magistrate Judge will be adopted.
Petitioner objects to the Magistrate Judge's conclusion that the one year limitation period under AEDPA was tolled until January 9, 2002, the date that the New Mexico Supreme Court denied certiorari on Mr. Serrano's state petition. However, Petitioner's argument that the tolling period was extended by three mailing days "until January 14, 2002" is not persuasive. Pet.'s Objections to the PFD [Doc. 21] ¶ 5.
The Tenth Circuit Court of Appeals stated that the period of limitation is "tolled from the time [a petitioner] file[s] his state application . . . until the state supreme court denie[s] his timely-filed petition for writ of certiorari." Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999) (cited in Adams v. LeMaster, 223 F.3d 1177, 1180 (10th Cir. 2000)). Moreover, the Tenth Circuit has indicated that a petitioner does not have three additional "mailing days" in which to file a federal petition following the New Mexico Supreme Court's denial of a state petition. Adams, 223 F.3d at 1180 (explaining that determining whether the petitioner filed his state petition on April 16, 1997 or April 22, 1997 would also determine whether he had "from one to seven days [respectively] after the tolling period" in which to file his federal petition).
Allowing Mr. Serrano three mailing days following the end of the tolling period on January 9, 2002 would extend the filing deadline, at most, to January 14, 2002. Thus, Mr. Serrano's petition, filed on January 16, 2002, would still be untimely.
Petitioner also objects to the Magistrate Judge's finding that equitable tolling does not apply. Petitioner alleges that he "was frustrated in his attempts to prepare his petition because he could not afford the assistance of counsel." Pet's Objections ¶ 8. I note that Petitioner has "no constitutional right to an attorney in state post-conviction proceedings." Thomas v. Gibson, 218 F.3d 1213, 1222 (10th Cir. 2000) (quoting Coleman v. Thompson, 501 U.S. 722, 752 (1991)). Moreover, Petitioner does not describe what steps he took to pursue his available remedies, nor how these efforts were thwarted by lack of counsel. Thus, Petitioner's inability to afford counsel does not justify his lack of diligence in pursuing post-conviction relief
Finally, Petitioner apparently claims "actual innocence" with respect to one or more charges. "The evidence petitioner is relying on for his present equitable tolling argument was clearly available to him before the expiration of the limitation period for the filing of petitioner's habeas corpus petition." Fleenor v. Scott, 37 Fed.Appx. 415, 417, 2002 WL 725450, at ** 1 (10th Cir. Apr. 25, 2002) (unpublished). Moreover, "[a]ctual innocence does not mean merely that the new evidence creates a reasonable doubt of the petitioner's guilt but that no reasonable juror would have found the defendant guilty had that evidence been produced at trial." Fleenor, 37 Fed.Appx. at 417, 2002 WL 725450, at **1 (citing Sellers v. Ward, 135 F.3d 1333, 1337 (10th Cir. 1998)).
Just as the Court questioned the evidence offered in Fleenor, I also question whether the evidence cited by Mr. Serrano satisfies the high actual innocence standard. Moreover, even if Mr. Serrano's innocence allegations meet this high threshold, I do not believe that he satisfies the due diligence component for equitable tolling. Equitable tolling does not apply where Petitioner fails to meet the threshold requirement of showing that he has diligently pursued post-conviction relief
WHEREBY,
IT IS ORDERED that the proposed findings and recommended disposition of the United States Magistrate Judge are adopted by the Court.
IT IS FURTHER ORDERED that Petitioner's Application for a Writ of Habeas Corpus [Doc. 1] is hereby DENIED and this cause is dismissed with prejudice.