Free Judgment - District Court of Colorado - Colorado

Case 1:04-cv-01173-ZLW-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Zita L. Weinshienk Civil Action No. 04-cv-01173-ZLW-PAC

PATRICK O'BOYLE, Applicant, v. JOSEPH ORTIZ and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER AND JUDGMENT OF DISMISSAL

The matters before the Court are the Application For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254, and Applicant' Objection To U.S. Magistrate' s s Recommendation To Dismiss. On September 22, 2004, this case was referred to Magistrate Judge Patricia A. Coan, who on March 10, 2005, issued a Recommendation Of United States Magistrate Judge recommending that the Application For A Writ Of Habeas Corpus be dismissed with prejudice as untimely under the Antiterrorism and Effective Death Penalty Act (AEDPA).1 Applicant filed the present objection to the

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Pub. L. No. 104-132, 110 Stat. 1214 (1996).

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Magistrate Judge' Recommendation on April 15, 2005, after obtaining an extension of s time to do so. The Court reviews Applicant' objection de novo.2 s Applicant pleaded guilty to second degree murder on June 7, 1994, and is serving a 24-year sentence in the Colorado Department of Corrections. He argues that the AEDPA' one-year statute of limitations should be tolled for 76 days while he s attempted to obtain copies of documents pertaining to the Rule 35 motion which he ultimately filed in state court. He presents an affidavit from his brother, James F. O' Boyle, which states that Applicant asked Mr. O' Boyle to make some copies of documents, but that, " [s]ince there was no sense of urgency in the request,"he put off making the copies. This does not constitute good cause for the 76-day delay.3 Regardless, as the Magistrate Judge stated, even if the one-year statute of limitations were tolled for the 76 days, the Application still would have been filed three days late. Applicant also argues that even though he had access to a law library for eight and a half months, the statute of limitations nonetheless should be tolled during that period because (1) he needs extra time to prepare his filings because he is pro se, and (2) the AEDPA allows him a full 12 months, not eight and a half months, to prepare an

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See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C).

See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (simple excusable neglect does not support equitable tolling).

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Application. However, the AEDPA statute of limitations is not extended for pro se litigants, and Applicant again has failed to make any showing that he acted diligently to protect his federal rights during the eight and a half months he had access to a law library.4 Applicant also argues that he could not have filed his second Rule 35 motion any sooner because he did not have access to the entire, unedited Colorado Bureau of Investigation (CBI) report and the state court record. The Magistrate Judge pointed out that the factual bases for the second Rule 35 motion were either raised in Applicant' s first Rule 35 motion or known to Applicant by the conclusion of the proceedings on that motion. In his objection, Applicant responds that because the state court judge' order s did not specifically address all of the issues raised in his first Rule 35 motion, Applicant had to resubmit those arguments in his second Rule 35 motion. Applicant fails to explain why this means that he needed the CBI report and the record of state court proceedings at which he was present in order to file his second Rule 35 motion. " A defendant need not set forth the evidentiary support for his allegations in his initial [Rule 35] motion; instead, a defendant need only assert facts that if true would provide
5 a basis for relief under Crim. P. 35." The argument lacks merit.

See id. (applicant must diligently pursue his habeas claim; a claim of insufficient access to relevant law is not enough to support equitable tolling).
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White v. Denver District Court, Div. 12, 766 P.2d 632, 635 (Colo. 1988).

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Equitable tolling is appropriate when the applicant is actually innocent.6 Contrary to Applicant' assertions, the Magistrate Judge employed the proper legal s standards with respect to the issue of actual innocence, namely, that in order to support an actual innocence claim, the applicant must present " new reliable evidence ­ whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
7 physical evidence ­ that was not presented at trial," and must show that " is more it

likely than not that no reasonable juror would have convicted him in light of the new
8 evidence." " Because such evidence is obviously unavailable in the vast majority of 9 cases, claims of actual innocence are rarely successful." The Court agrees with the

Magistrate Judge that Applicant has not satisfied this standard. The Magistrate Judge has thoughtfully and thoroughly analyzed Applicant' s claims and has made a recommendation that is fully supported by the record and the applicable law. After careful consideration, the Court accepts and adopts the Magistrate Judge's Recommendation. Accordingly, it is ORDERED that Applicant' Objection To U.S. Magistrate' Recommendation To s s Dismiss is overruled. It is

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Gibson, 232 F.3d at 808. U.S. v. Cervini, 379 F.3d 987, 991 (10th Cir. 2004). Schlup v. Delo, 513 U.S. 298, 327 (1995). Cervini, 379 F.3d at 991-92.

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FURTHER ORDERED that the Application For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 is denied. It is FURTHER ORDERED that this case is dismissed with prejudice. It is FURTHER ORDERED that judgment is entered in favor of Defendants Joseph Ortiz and the Attorney General of the State of Colorado, and against Plaintiff Patrick O' Boyle, the parties to pay their own costs. DATED at Denver, Colorado, this 11 day of April, 2006. BY THE COURT:

__________________________________ ZITA L. WEINSHIENK, Senior Judge United States District Court

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