Moreno-Montano v. Jacquert, 10th Cir. (2010)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

April 27, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
MARCOS MORENO-MONTANO,
Petioner - Appellant,
v.
No. 09-4067
(D. Utah)
(D.C. No. 2:06-CV-00373-DAK)
GREG JACQUERT; CLARK LOW;

STATE OF UTAH,
Respondents - Appellees.
ORDER DENYING LEAVE TO PROCEED

ON APPEAL IN FORMA PAUPERIS,
DENYING CERTIFICATE OF APPEALABILITY,
AND DISMISSING APPEAL
Before HARTZ, McKAY, and O'BRIEN, Circuit Judges.

Marcos Moreno-Montano, a Utah state prisoner appearing pro se,1 seeks to appeal
from the denial of his 28 U.S.C. 2254 petition for writ of habeas corpus. MorenoMontano has not made a substantial showing of the denial of a constitutional right. See
28 U.S.C. 2253(c)(2). We deny him a certificate of appealability (COA) and also deny
his motion to proceed on appeal in forma pauperis (ifp).
We liberally construe Montanos pro se filings. See Ledbetter v. City of Topeka,

Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
I.
In April 2001, Moreno-Montano was convicted of rape of a child (Count 1) and
attempted sexual abuse of a child (Count 2). He was sentenced to ten years to life
imprisonment on Count 1 and three years to life imprisonment on Count 2. The Utah
Court of Appeals affirmed his conviction but remanded to the district court for
clarification as to whether his sentence was to run concurrently or consecutively.2 State
v. Moreno-Montano, No. 20010500-CA, 2002 WL 966249 (Utah App. May 9, 2002)
(unpublished). The Utah Supreme Court denied review on September 17, 2002. See
State v. Moreno-Montano, 59 P.3d 603 (Utah 2002) (unpublished). While his direct
appeal was pending, Moreno-Montano filed a petition for post-conviction relief in the
state district court, which was dismissed as premature.
On January 28, 2003, Moreno-Montano filed a 2254 petition in the federal
district court. The court dismissed his petition for failure to exhaust his state remedies
noting, [Moreno-Montano has] limited time remaining, according to state and federal
2
The Utah Court of Appeals stated:
Although Defendant states in his brief that he was sentenced to consecutive

prison terms, the State points out that while the judgment reflects
consecutive sentences, the transcript from the sentencing hearing and the
pre-sentence investigation report both indicate concurrent sentences were
intended. The State concedes that, in the event of an affirmance, the case
should be remanded to the trial court for clarification of the discrepancy.
Although the default position is that sentences run concurrently, trial courts
retain the discretion to impose consecutive sentences in appropriate
circumstances. See Utah Code Ann. 76-3-401(1) (1999). Therefore, we
remand to the trial court for resolution of the sentencing issue; we
otherwise affirm.
2002 WL 966249 at *1.
statutes of limitation, to return to state court to file a habeas petition, then, upon a state
court decision, to revisit his claims in [the federal district c]ourt. Moreno-Montano v.
Jacquert, No. 2:06-CV-373-DAK, 2009 WL 890593, *1 n. 5 (D. Utah Apr. 1, 2009)
(quoting Moreno-Montano v. Jacquert, No. 2:03-CV-106-DAK n. 3 (D. Utah Aug. 25,
2003).
Despite this warning, Moreno-Montano did not file his motion for post-conviction
relief with the Utah courts until June 22, 2005 almost two years later. After
unsuccessfully proceeding through the state courts, he filed another federal habeas corpus
application on June 7, 2006. The court concluded he failed to file within the one-year
period of limitations imposed by the Antiterrorism and Effective Death Penalty Act
(AEDPA) and dismissed his petition as untimely. Because his first request for postconviction relief was filed while his direct appeal was pending and his second was not
filed until the AEDPAs limitation period had already run, Moreno-Montano was not
entitled to statutory tolling. The court also found his petition hints at no circumstances
whatsoever that excuse his late filing and, therefore, equitable tolling would not apply.
Moreno-Montano, 2009 WL 890593 at *1. Accordingly, the district court dismissed his
action. Moreno-Montano appealed, arguing the district court abused its discretion
because it did not properly toll the AEDPA period of limitations or apply equitable
tolling.
II.
A COA is a jurisdictional prerequisite to our review of a petition for a writ of
habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA
-3-
only if the applicant has made a substantial showing of the denial of a constitutional
right. 28 U.S.C. 2253(c)(2). Moreno-Montano did not seek a COA from the district
court. Rather, he filed an application for a COA and a motion to proceed ifp on appeal in
this court.
The district courts procedural dismissal means Moreno-Montano must
demonstrate both that 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). Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the petitioner
should be allowed to proceed further. Id.
A.
Calculation of Time Under AEDPA

AEDPA states:
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 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). It tolls the limitations period while post conviction claims are
pending in state courts: [t]he 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)(2). Moreno-Montanos post-conviction petition was filed more than
-4-
one year after judgment became final. He does not argue otherwise, but instead claims
the limitations period should not apply because he ultimately did as he was told by the
district court when he filed his 2005 state post-conviction motion. But, as the district
court correctly noted, a state court petition . . . that is filed following the expiration of
the federal limitations period cannot toll that period because there is no period remaining
to be tolled. Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (quotations
omitted); see also Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).
B.
Equitable Tolling
We review a district courts decision to deny equitable tolling for an abuse of
discretion. Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007). Equitable tolling
applies only in rare and exceptional circumstances. Laurson v. Leyba, 507 F.3d 1230,
1232 (10th Cir. 2007) (quotations omitted). Generally, equitable tolling requires a
litigant to establish two elements: (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way. Yang v. Archuleta, 525 F.3d
925, 928 (10th Cir. 2008) (quotations omitted). A petitioner has the burden of
establishing that equitable tolling should apply. Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005).
Moreno-Montano contends newly discovered evidence [of altered documents by
the State] will give [him] a toll time. (App. for COA at 2.) It is unclear what the newly
discovered evidence might be. He claims there was an illegal alteration of his sentence
arising from the trial courts clarification of the concurrent/consecutive problem after
remand on direct appeal (see footnote 2, ante), but, he supplies no information. The
-5-
States brief to the district court refers to a reimposition of sentence occurring on July 12,
2002, at which time the original judgment was corrected to impose concurrent sentences.
[R. Vol. I at 94 n.2 & 128.] In any event, Moreno-Montano has identified no violation
of his federal rights and we cannot fathom how modifying his sentences to run
concurrently rather than consecutively is detrimental to his rights or interests. He also
claims, for the first time, he is actually innocente an [sic] frame[d] by the State as
evidenced by these altered documents. (App. for COA at 2-3.) His argument is basically
incomprehensible and unsupported by any record facts. Moreover, it was not presented
to the district court. And he makes other dubious merits arguments. Besides being
somewhat incoherent, his arguments, individually or collectively, afford him no
possibility of equitable tolling and we will consider them for no other purpose as his
habeas petition was not timely filed.
C.
Motion to Proceed In Forma Pauperis

Moreno-Montano filed a motion to proceed ifp on appeal with the district court. It
denied his motion finding no good faith basis for [his] challenge to the courts
Memorandum Decision and Order. (Order, May 29, 2009.) He renews his motion here.
To proceed ifp on appeal, Moreno-Montano must show a financial inability to pay the
required filing fees and the existence of a reasoned, nonfrivolous argument on the law
and facts in support of the issues raised on appeal. DeBardeleben v. Quinlan, 937 F.2d
502, 505 (10th Cir. 1991) (emphasis added). Because Moreno-Montanos arguments are
all frivolous, we deny his request to proceed ifp. He is directed to remit the full amount
of the filing fee within twenty days. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th
-6-
Cir. 2001) (dismissal of an appeal does not relieve appellant of the obligation to pay the
appellate filing fee in full).
We DENY Moreno-Montanos request for a COA and his motion to proceed ifp.
This matter is DISMISSED.
Entered by the Court:
Terrence L. OBrien
United States Circuit Judge
-7-

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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

GREG JACQUERT; CLARK LOW;

ORDER DENYING LEAVE TO PROCEED

Before HARTZ, McKAY, and O'BRIEN, Circuit Judges.

We liberally construe Montanos pro se filings. See Ledbetter v. City of Topeka,

The Utah Court of Appeals stated:

Although Defendant states in his brief that he was sentenced to consecutive

Calculation of Time Under AEDPA

Motion to Proceed In Forma Pauperis

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