Irlanda v. Stancil

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 19, 2025
• Docket: 25-1047
• Status: Unpublished

Opinion

Appellate Case: 25-1047 Document: 11-1 Date Filed: 03/19/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 19, 2025 _________________________________ Christopher M. Wolpert Clerk of Court MARK IRLANDA,

Petitioner - Appellant,

v. No. 25-1047 (D.C. No. 1:24-CV-01980-LTB-RTG) MOSES STANCIL, Director of the CO (D. Colo.) Dept. of Corrections; BARRY GOODRICH, Warden, Crowley County Correctional Facility; THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents - Appellees. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. _________________________________

To appeal the denial of an application for a writ of habeas corpus, the movant must

first obtain a Certificate of Appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A).

Petitioner-Appellant Mark Irlanda, a prisoner in state custody, seeks a COA regarding

whether the district court erred by dismissing his habeas application as time barred.

Mr. Irlanda also moves to proceed in forma pauperis (“IFP”) on appeal. Because

reasonable jurists would agree the habeas application was barred by the Anti-Terrorism

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 25-1047 Document: 11-1 Date Filed: 03/19/2025 Page: 2

and Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations, we deny

Mr. Irlanda’s application for a COA. We also deny Mr. Irlanda’s motion to proceed IFP

because he has not advanced a nonfrivolous argument in support of a COA.

I. BACKGROUND

On November 9, 2004, Mr. Irlanda was convicted in Colorado state court for

sexually assaulting a child and was sentenced to an indeterminate sentence of four years

to life. Mr. Irlanda’s direct appeal of that conviction concluded when the Colorado

Supreme Court denied his petition for review on May 12, 2008. Shortly after, on

July 28, 2008, Mr. filed a motion for a reduced sentence in state court, and when that

motion was denied, he appealed its denial to the Colorado Court of Appeals. At

Mr. Irlanda’s request, the court of appeals dismissed that appeal on January 12, 2009.

Over a year later, on May 11, 2010, Mr. Irlanda filed a motion for post-conviction

relief (“PCR”) in state court. The trial court denied the PCR motion, the Colorado Court

of Appeals affirmed that denial, and the Colorado Supreme Court declined to review the

motion on June 6, 2016. More than a year and a half later, Mr. Irlanda filed a second PCR

motion on November 6, 2017, and a third motion on November 1, 2018, both of which

were denied.

On July 15, 2024, Mr. Irlanda filed an application for a writ of habeas corpus in

the U.S. District Court for the District of Colorado, which was referred to a magistrate

judge for an initial recommendation. In the application, Mr. Irlanda asserted five grounds

for habeas relief: (1) the trial judge denied his right to a fair trial by empaneling a biased

jury; (2) state prosecutors “tampered” with key witnesses; (3) state prosecutors

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committed a Brady violation by withholding material evidence; (4) state prosecutors

failed to present exculpatory evidence to the grand jury; and (5) the trial court lacked

subject matter jurisdiction. In response, the Government filed a motion to dismiss

Mr. Irlanda’s application as time barred. On December 9, 2024, the magistrate judge

entered an order recommending that the district court grant the motion and dismiss the

application as untimely. Mr. Irlanda timely filed objections to that recommendation.

On January 16, 2025, the district court overruled Mr. Irlanda’s objections and

adopted the magistrate judge’s recommendation, dismissing the habeas application as

untimely under AEDPA’s one-year statute of limitations. The district court found the

application was untimely for two equally dispositive reasons. First, Mr. Irlanda’s deadline

to file began to run after the Colorado Court of Appeals dismissed his motion for a

reduced sentence on January 12, 2009,1 yet he did not file a habeas application before his

year-long window closed on January 12, 2010. The district court rejected Mr. Irlanda’s

argument for equitable tolling of this deadline—that his attorneys assured him they would

file a habeas application before the filing deadline, and they did not do so. The court

ruled that although Mr. Irlanda’s lawyers may have “miscalculated the AEDPA filing

deadline,” that was not an exceptional circumstance entitling Mr. Irlanda to equitable

tolling. ROA at 157.

1 The statute of limitations began running the day after the motion was dismissed, January 13, 2009, and ended one year later on the “anniversary date,” January 12, 2010. United States v. Hurst, 322 F.3d 1256, 1260–61 (10th Cir. 2003). 3 Appellate Case: 25-1047 Document: 11-1 Date Filed: 03/19/2025 Page: 4

Second, the district court held that even if AEDPA’s clock was equitably tolled

from January 12, 2009, until when Mr. Irlanda’s first PCR motion was filed on

May 11, 2010, the statute would have started running once the Colorado Supreme Court

denied review of that motion on June 6, 2016.2 But after that denial, Mr. Irlanda did not

file anything in federal or state court before the one-year deadline elapsed on

June 6, 2017. The district court acknowledged Mr. Irlanda’s argument that his attorney,

Ms. Ruttenberg, misled him by indicating in December 2015 that she would file a habeas

application if the Colorado Supreme Court did not review the PCR motion. But the court

found this single communication did not establish that Mr. Irlanda diligently attempted to

file a habeas application before the statute of limitations expired, and he was thus

ineligible for equitable tolling. Id. at 159.

Finally, the district court considered Mr. Irlanda’s argument that his failure to

comply with the filing deadline “should be excused because” his habeas claims “are

meritorious.” Id. at 160. The court acknowledged that a showing of actual innocence can

provide an exception to the statute of limitations, but it found Mr. Irlanda had not made

“a viable claim of actual innocence.” Id. at 160–61. Thus, the district court dismissed

Mr. Irlanda’s habeas application and denied leave to proceed IFP on appeal. And the

district court declined to issue a COA, finding “Mr. Irlanda ha[d] not made a substantial

2 The deadline would have been statutorily tolled after Mr. Irlanda filed the PCR motion on May 11, 2010, until the motion was denied on June 6, 2016. See 28 U.S.C. § 2244(d)(2). 4 Appellate Case: 25-1047 Document: 11-1 Date Filed: 03/19/2025 Page: 5

showing that jurists of reason would debate the correctness of this procedural ruling or

that his constitutional rights were violated.” Id. at 162.

II. STANDARD OF REVIEW

To obtain a COA, Mr. Irlanda must demonstrate “that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that jurists

could conclude the issues presented are adequate to deserve encouragement to proceed

further.” United States v. Silva, 430 F.3d 1096, 1100 (10th Cir. 2005) (quoting Miller-El

v. Cockrell, 537 U.S. 322, 327 (2003)). Because the district court denied the habeas

application on a procedural ground, Mr. Irlanda must show “that jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a constitutional

right and . . . whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). We review the district court’s decision de novo. See

United States v. Denny, 694 F.3d 1185, 1189 (10th Cir. 2012) (“We generally review de

novo the dismissal of a habeas petition on the ground of untimeliness.”).

III. DISCUSSION

A. Legal Standards

Under AEDPA, a one-year statute of limitations applies to habeas motions.

28 U.S.C. § 2244(d)(1). In relevant part, the statute of limitations begins running on “the

date on which the judgment became final by the conclusion of direct review.” Id.

§ 2244(d)(1)(A). The deadline is statutorily tolled during the pendency of “a properly

filed application for State post-conviction or other collateral review.” Id. § 2244(d)(2).

And the deadline may be equitably tolled if the untimely movant shows that he

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(1) diligently pursued habeas relief, and (2) an “‘extraordinary circumstance stood in his

way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

If a movant is ineligible for statutory or equitable tolling, habeas relief is barred

unless the movant makes “a ‘credible showing of actual innocence,’” which “provides an

outright equitable exception to AEDPA’s statute of limitations.” Doe v. Jones, 762 F.3d

1174, 1182 (10th Cir. 2014) (quoting McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)).

The actual innocence exception is “grounded in the ‘equitable discretion’ of habeas

courts to see that federal constitutional errors do not result in the incarceration of

innocent persons.” McQuiggin, 569 U.S. at 392 (quoting Herrera v. Collins, 506 U.S.

390, 404 (1993)). The Supreme Court has noted that “‘actual innocence’ means factual

innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623

(1998). A claim of actual innocence cannot rest on “speculations and conjectures” but

instead requires some “new reliable evidence—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not

presented at trial.” Taylor v. Powell, 7 F.4th 920, 927 (10th Cir. 2021) (quoting House v.

Bell, 547 U.S. 518, 537 (2006)).

B. Analysis

Mr. Irlanda is not entitled to equitable tolling. As discussed, the district court

found Mr. Irlanda twice failed to comply with the one-year filing deadline: first, by not

filing a habeas application within one year of the dismissal of his motion for a reduced

sentence on January 12, 2009; and second, by not filing within one year of the denial of

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his PCR motion on June 6, 2016, assuming Mr. Irlanda was entitled to equitable tolling

up to that point. Mr. Irlanda resists both conclusions, arguing the only reason he did not

meet either deadline was because his attorneys misrepresented that they would file a

habeas application before AEDPA’s clock ran out. He asserts that he was diligent in

pursuing habeas relief because he “did all he could to communicate with [his] attorneys.”

Appellant’s Br. at 3.3

But Mr. Irlanda has not explained why he is entitled to equitable tolling for his

failure to timely file a habeas application after his first PCR motion was denied on

June 6, 2016.4 To merit equitable tolling, a habeas applicant must show “(1) that he has

been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in

his way.” Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). “The diligence

required for equitable tolling purposes is ‘reasonable diligence.’” Id. (quoting Lonchar v.

Thomas, 517 U.S. 314, 326 (2010)). Because “[t]he exercise of reasonable diligence is an

ongoing process,” a prisoner’s receipt of new information “may demand action that

would not have been demanded without receipt of the information.” Denny, 694 F.3d

at 1190.

3 We have carefully reviewed Mr. Irlanda’s original brief and application for a COA, filed on February 6, 2025, as well as his supplemental brief and application for a COA, filed on March 17, 2025. No arguments in either filing alter the analysis below. 4 Because Mr. Irlanda has not shown he is entitled to equitable tolling after failing to meet the June 6, 2017 deadline, we do not address whether he was entitled to equitable tolling after he missed the January 12, 2010 deadline. 7 Appellate Case: 25-1047 Document: 11-1 Date Filed: 03/19/2025 Page: 8

Under AEDPA, Mr. Irlanda was required to file his habeas application by

June 6, 2017, one year after his first PCR motion was denied. Mr. Irlanda does not

dispute that he failed to do so. But he asserts that he missed the deadline only because his

attorney at the time, Ms. Ruttenberg, misled him. To support this argument, Mr. Irlanda

relies on a bar complaint he allegedly filed against Ms. Ruttenberg on March 27, 2018. In

that complaint, Mr. Irlanda claimed Ms. Ruttenberg told his parents in December 2015

that if the Colorado Supreme Court rejected the PCR motion, she would prepare a federal

habeas case for him “no matter what.” Id. at 7. Mr. Irlanda stated there was no “personal

contact” between himself and Ms. Ruttenberg for two years after that point, during which

he “believe[ed] that she was, in fact, working on [his] federal appeal.” Id. Mr. Irlanda

claimed he did not learn until October 2017 that Ms. Ruttenberg was not preparing his

habeas application, when she texted his parents “that she’d given up on the federal

appeal.” Id.

Assuming Mr. Irlanda’s allegations in the bar complaint are true, they do not show

that he diligently attempted to comply with AEDPA’s statute of limitations after it began

to run on June 6, 2016. Mr. Irlanda does not indicate that he ever attempted to confirm

that Ms. Ruttenberg was preparing a habeas application for him after his PCR motion

was denied, nor is there any indication that he otherwise attempted to pursue federal

relief during the one-year period. By contrast, in Holland, the Supreme Court found a

prisoner showed reasonable diligence when he (1) “wrote his attorney numerous letters

seeking crucial information and providing direction,” (2) repeatedly contacted state

courts and even the state bar to have his negligent attorney removed from the case, and

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(3) prepared and filed his own habeas petition on “the very day that [he] discovered that

his AEDPA clock had expired.” 560 U.S. at 653. But here, Mr. Irlanda fails to describe

any steps he took to pursue his federal case after AEDPA’s clock started running in

June 2006. See, e.g., Fleming v. Evans, 481 F.3d 1249, 1256–57 (10th Cir. 2007)

(holding the petitioner arguably showed reasonable diligence when he “inquired of his

counsel several times during phone calls and visits . . . as to the status of his petition” and

then “took it upon himself to prepare his own petition”). Nor does Mr. Irlanda explain

why he waited to file his habeas application until July 2024, over six and a half years

after he learned Ms. Ruttenberg was not preparing a habeas application. See Denny, 694

F.3d at 1191 (noting the untimeliness caused by the defendant’s “reliance on his attorney

was removed once he was notified of his attorney’s failure to file”). Accordingly, we hold

that Mr. Irlanda is not entitled to equitable tolling because he did not demonstrate

reasonable diligence in attempting to comply with AEDPA’s filing deadline.

Additionally, Mr. Irlanda has not shown the statute of limitations is inapplicable

because is he actually innocent. In his application, Mr. Irlanda raised five claims: (1) the

trial court empaneled a biased jury; (2) the prosecutors tampered with witnesses; (3) the

prosecutors committed Brady violations; (4) the prosecutors did not present exculpatory

evidence to a grand jury; and (5) the trial court lacked subject matter jurisdiction. These

claims all speak to whether Mr. Irlanda’s conviction was legally sufficient, not to whether

he is factually innocent. See Pacheco v. Habti, 62 F.4th 1233, 1242–43 (10th Cir. 2023)

(collecting cases). But “[a]ctual innocence means factual innocence, not mere legal

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insufficiency.” Bousley, 523 U.S. at 623. Thus, Mr. Irlanda has not made a showing of

actual innocence.

Accordingly, we hold that reasonable jurists would not debate the district court’s

decision that Mr. Irlanda’s habeas application is time barred by the statute of limitations.

We also hold that Mr. Irlanda has not made “a reasoned, nonfrivolous argument” that a

COA should be granted, see Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008)

(quotation marks omitted), and therefore we deny his motion to proceed IFP.

IV. CONCLUSION

For the reasons above, we DENY Mr. Irlanda’s application for a COA, DENY his

motion to proceed IFP, and DISMISS this matter.

Entered for the Court

Carolyn B. McHugh Circuit Judge