Zurita-Cruz v. State of Kansas

Appellate Case: 21-3224 Document: 010110644611 Date Filed: 02/14/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 14, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
EMILIO ZURITA-CRUZ,

Petitioner - Appellant,

v. No. 21-3224
(D.C. No. 5:21-CV-03035-SAC)
STATE OF KANSAS, (D. Kan.)

Respondent - Appellee.
_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________

Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________

Petitioner Emilio Zurita-Cruz, a Kansas state prisoner appearing pro se, seeks a

certificate of appealability (COA) in order to appeal the district court’s dismissal of his

28 U.S.C. § 2254 petition for writ of habeas corpus. Because Zurita-Cruz has failed to

satisfy the standards for issuance of a COA, we deny his request and dismiss this matter.

On February 8, 2008, Zurita-Cruz was convicted by a jury in the District Court of

Finney County, Kansas, of one count of rape and one count of aggravated criminal

*
This order is not binding precedent except under the doctrines of law of the case,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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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sodomy. Zurita-Cruz was sentenced on March 25, 2008, to a term of imprisonment of

288 months. A journal entry of judgment was entered on that same date.

Approximately five years later, on April 15, 2013, Zurita-Cruz wrote a letter to the

state trial court asserting that “for some unknown reason” his appointed attorney, Linda

Eckelman, “failed to file a notice of appeal.” ROA at 88. Zurita-Cruz asked the state

trial court to “help [him] get [his] appeal filed, docketed and appellate counsel

appointed.” Id. The state trial court construed the letter as a motion to file a notice of

appeal out of time, appointed counsel to represent Zurita-Cruz, and held a hearing on the

motion on June 6, 2013. Both Zurita-Cruz and Eckelman testified at the hearing, as did

the interpreter who worked with Zurita-Cruz during the sentencing proceeding.

Zurita-Cruz testified that at the conclusion of the sentencing hearing he asked trial

counsel to file a notice of appeal. Eckelman, however, testified that she discussed the

right to appeal with Zurita-Cruz after sentencing and Zurita-Cruz “did not want an appeal

at that time” and instead wanted to hire a different attorney to represent him. Id. at 106.

The interpreter testified that she had no recollection of Zurita-Cruz asking Eckelman to

file an appeal. At the conclusion of the hearing, the state trial court found the testimony

of Eckelman to be more credible, and it denied Zurita-Cruz’s motion to file a notice of

appeal out of time.

Zurita-Cruz, still represented by appointed counsel, appealed from the state trial

court’s denial of his motion to file a notice of appeal out of time. On September 18,

2015, the Kansas Court of Appeals affirmed the state trial court’s denial of Zurita-Cruz’s

motion to file a notice of appeal out of time. State v. Zurita-Cruz, No. 110,442 (Kan. Ct.

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App. Sept. 18, 2015). The Kansas Supreme Court denied review of the case on June 21,

2016.

On September 12, 2016, Zurita-Cruz filed with the state trial court a pro se motion

for post-conviction relief under Kan. Stat. Ann. § 60-1507 alleging ineffective assistance

of trial and appellate counsel. Zurita-Cruz’s motion was denied on May 17, 2017.

Zurita-Cruz did not appeal from that ruling.

On February 2, 2021, Zurita-Cruz initiated these federal proceedings by filing a

pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In Ground One of

his petition, Zurita-Cruz alleged that his constitutional due process rights were violated

when the state trial court denied his motion to file a late notice of appeal. In Ground Two

of his petition, Zurita-Cruz alleged that Eckelman was ineffective for failing to file a

direct appeal. In Ground Three of his petition, Zurita-Cruz alleged that he received

ineffective assistance of appellate counsel from the attorney who represented him in

appealing the state trial court’s denial of his motion to file a notice of appeal out of time.

In Ground Four of his petition, Zurita-Cruz alleged that his constitutional due process

rights were violated at trial in two respects: (a) because the state trial court failed to

obtain a unanimous poll from the jury regarding their verdict; and (b) because the

prosecutor lied to Eckelman and told her that Zurita-Cruz “would go to prison and do

time” if Zurita-Cruz testified at trial, but that if Zurita-Cruz did not testify, “the

prosecutor would let him go.” Id. at 44.

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The district court directed respondent to file a pre-answer response “addressing (1)

the affirmative defense of timeliness under 28 U.S.C. § 2244(d) and (2) whether

[Zurita-Cruz] defaulted his appeal from his post-conviction motion.” Id. at 70.

Respondent filed a pre-answer response arguing that Zurita-Cruz’s habeas petition

was “time-barred by the statute of limitations.” Id. at 72. In support, respondent argued

that “[u]nder the law in effect at the time of . . . conviction, [Zurita-Cruz] had ten days

(not including weekends) from the date of sentencing to file a notice of appeal.” Id. at 75

(citing Kan. Stat. Ann. § 22-3608(c) (2007)). “Because he did not do so,” respondent

argued, “his conviction became final on that date,” i.e., “April 8, 2008.” Id. Respondent

noted that Zurita-Cruz thereafter “took no action in his case for roughly five years,” and

thus “[t]he one-year statute of limitations for seeking federal relief . . . expired on April 9,

2009.” Id. Respondent argued that “[b]ecause [Zurita-Cruz] did not appeal his

conviction, and because his attempt to appeal out of time was rejected by the state courts,

there were no state proceedings to toll the federal statute of limitations.” Id. at 76.

Finally, respondent argued that Zurita-Cruz did not diligently pursue his claims and

therefore was not entitled to equitable tolling of the statute of limitations.

On August 4, 2021, the district court issued a memorandum and order dismissing

Zurita-Cruz’s petition as untimely. The district court noted that Zurita-Cruz’s petition

was subject to the one-year limitation period set forth in 28 U.S.C. § 2244(d). The

district court in turn concluded that the five-year period between the date his convictions

and sentence became final and the date he notified the state trial court that he wished to

appeal out of time was “sufficient to support a finding that [he] failed to timely present

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this habeas corpus action.” Id. at 132. The district court further concluded that “even if

[it] found that [Zurita-Cruz] w[as] entitled to equitable tolling following his sentence, the

record showe[d] that following the denial of relief in his action under [Kan. Stat. Ann. §]

60-1507,” Zurita-Cruz “did not appeal and waited almost four years before he filed the

present federal petition.” Id. “Either of these delays,” the district court concluded, was

“sufficient to persuade [it] that th[e] petition was not timely filed.” Id. And, the district

court noted, Zurita-Cruz “had not advanced any grounds to support equitable tolling or to

excuse the failure to timely file.” Id. Lastly, the district court concluded that Zurita-Cruz

was not entitled to a COA. Final judgment was entered in the case that same day.

Zurita-Cruz filed a motion to reopen the case. Zurita-Cruz alleged that, due to

Covid-related prison transfers, he had been unaware of respondent’s pre-answer response

and he asked the district court for an opportunity to respond to it. On October 19, 2021,

the district court issued a show cause order granting Zurita-Cruz one month in which to

file a response to respondent’s pre-answer response.

On November 4, 2021, Zurita-Cruz filed a response alleging that his petition

should not be dismissed on statute of limitations grounds because he “is ‘actually

innocent’ of rape . . . and sodomy,” and because he “received ineffective assistance of

trial counsel, direct appeal counsel, post conviction [sic] counsel, and appellate counsel,

who all refused and failed to argue [his] ‘actual innocence.’” Id. at 213. Zurita-Cruz also

argued that “exceptional circumstances” existed “that prevent[ed] him from being

procedurally barred.” Id. In support, Zurita-Cruz repeated his allegations that he asked

Eckelman to file an appeal and that she failed to do so, and he also argued that the

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attorney who represented him on appeal from the state trial court’s denial of his motion to

file an appeal out of time was ineffective due to the manner in which she argued the

appeal. Zurita-Cruz also complained that the state trial court refused to appoint him

counsel to represent him in appealing from the denial of his motion for state

post-conviction relief. Finally, Zurita-Cruz argued that he was entitled to equitable

tolling of the limitations period because he had diligently pursued his claims in the

Kansas state courts.

On November 29, 2021, the district court issued a memorandum and order

denying Zurita-Cruz’s motion to reopen the case. In doing so, the district court

considered and rejected each of the grounds cited by Zurita-Cruz in his response. In

particular, the district court noted that Zurita-Cruz failed to “identify any new, reliable

evidence that supports a finding of factual innocence,” and thus there was no merit to his

claim of actual innocence. Id. at 227. The district court also considered and rejected

each of the grounds for equitable tolling that were cited by Zurita-Cruz.

Zurita-Cruz filed a timely notice of appeal and has since filed an application for

COA with this court.

“A state prisoner whose petition for a writ of habeas corpus is denied by a federal

district court does not enjoy an absolute right to appeal.” Buck v. Davis, 137 S. Ct. 759,

773 (2017). Rather, “[f]ederal law requires that he first obtain a COA from a circuit

justice or judge.” Id. (citing 28 U.S.C. § 2253(c)(1)). To obtain a COA, a state prisoner

must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(2). This requires the prisoner to “sho[w] that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were ‘adequate to deserve encouragement to

proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (alteration in original)

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). To do so, the prisoner must

show that the district court’s resolution of the claims was “debatable or wrong.” Slack,

529 U.S. at 484. When a district court dismisses a Section 2254 claim on procedural

grounds, a petitioner is entitled to a COA only if he shows both that reasonable jurists

would find it debatable whether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct. Id. at 484–85.

Here, the district court dismissed Zurita-Cruz’s petition as untimely. As the

district court noted, 28 U.S.C. § 2244(d)(1)(A) provides, in pertinent part, that “[a] 1-year

period of limitation shall apply to an application for a writ of habeas corpus by a person

in custody pursuant to a judgment of a State court” and “shall run from the latest of . . .

the date on which the judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review.” Under Kansas state law, Zurita-Cruz had

ten days “after the judgment of the [state trial] court to appeal.” Kan. Stat. Ann.

§ 22-3608(c) (2007). Because Zurita-Cruz did not file a direct appeal, the judgment in

his case became final on or about April 9, 2008, following the expiration of his ten-day

period for filing a notice of appeal. From that point, the one-year limitations period ran

unabated and expired on or about April 9, 2009.

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To be sure, Zurita-Cruz asserts that he is entitled to equitable tolling of the

limitations period. A state prisoner may be entitled to equitable tolling of the one-year

limitations period if he establishes that (1) he diligently pursued his federal claims, but

(2) extraordinary circumstances prevented him from filing a timely federal habeas

petition. Holland v. Florida, 560 U.S. 631, 649 (2010). The district court in this case

concluded, in pertinent part, that Zurita-Cruz could not establish diligent pursuit of his

federal claims because he waited approximately five years from the date his convictions

became final before he contacted the state trial court about filing a notice of appeal out of

time. Our review of the record on appeal persuades us that reasonable jurists could not

disagree as to this conclusion.

III

The application for COA is therefore DENIED and the matter is DISMISSED.

Entered for the Court

Mary Beck Briscoe
Circuit Judge