IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-01955-BNB

ROBERT J. FREEMAN,

Applicant,

v.

ARISTEDES ZAVARAS, and

THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents.

ORDER OF DISMISSAL

Applicant, Robert J. Freeman, is a prisoner in the custody of the Colorado

Department of Corrections at the Arkansas Valley Correctional Facility in Crowley,

Colorado. Mr. Freeman has filed pro se an application for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 (Doc. #1) challenging the validity of his conviction in

Arapahoe County District Court case number 97CR324.

On August 4, 2011, Magistrate Judge Boyd N. Boland ordered Respondents to

file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness

under 28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28

U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses in

this action. On August 25, 2011, Respondents filed their Pre-Answer Response (Doc.

#7). On September 14, 2011, Mr. Freeman filed a Reply to Respondent[s’] Pre-Answer

Response (Doc. #8). On September 22, 2011, Magistrate Judge Boland entered an

order directing Respondents to file a supplement to their Pre-Answer Response if they

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wish to respond to the equitable tolling and actual innocence arguments raised by Mr.

Freeman in his reply. On October 13, 2011, Respondents filed a Supplement to PreAnswer Response (Doc. #10). On November 2, 2011, Mr. Freeman filed a Reply to

Respondent[s’] Supplement to Pre-Answer Response (Doc. #11).

The Court must construe the application and other documents filed by Mr.

Freeman liberally because he is not represented by an attorney. See Haines v.

Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991). However, the Court should not be an advocate for a pro se litigant. See Hall,

935 F.2d at 1110. For the reasons stated below, the Court will dismiss the action as

untimely.

Mr. Freeman was charged with multiple crimes after attempting to murder his

stepdaughter and her boyfriend by detonating a pipe bomb under their car and shooting

his stepdaughter twice as she ran from the car. He entered a plea of not guilty by

reason of insanity. Following a unitary jury trial, the jury rejected the insanity defense

and convicted Mr. Freeman of attempted first degree murder, two counts of attempted

second degree murder, and one count of conspiracy to commit first degree murder. He

was sentenced to a total term of 144 years in prison. The judgment of conviction was

affirmed on direct appeal. See People v. Freeman, 47 P.3d 700 (Colo. App. 2001). On

June 3, 2002, the Colorado Supreme Court denied Mr. Freeman’s petition for writ of

certiorari on direct appeal. (See Doc. #7-4.)

On August 22, 2002, Mr. Freeman filed in the trial court a postconviction Rule

35(c) motion challenging the restitution portion of his sentence. (See Doc. #7-9 at 3.) 

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The trial court denied that motion on December 23, 2002. (See id.) Mr. Freeman did

not appeal.

On September 18, 2002, Mr. Freeman filed in the trial court a postconviction Rule

35(b) motion to reconsider his sentence. (See id.) The trial court denied the Rule 35(b)

motion on December 24, 2002. (See id.) Mr. Freeman did not appeal.

On June 9, 2003, Mr. Freeman filed in the trial court a motion requesting a loan

of transcripts. (See id.; Doc. #10-1.) That motion was denied on August 3, 2004. (See

Doc. #7-9 at 3; Doc. #10-2.) On September 15, 2004, Mr. Freeman filed in the trial

court a second motion requesting a loan of transcripts. (See Doc. #7-9 at 2-3; Doc.

#10-4.) The second motion for transcripts was denied on November 30, 2004. (See

Doc. #7-9 at 2; Doc. #10-5.)

On March 21, 2005, Mr. Freeman filed in the trial court a second postconviction

motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See Doc.

#7-9 at 2.) On April 26, 2005, the trial court denied the second Rule 35(c) motion

because Mr. Freeman had not used the proper form. (See id.) On May 18, 2005, Mr.

Freeman refiled the second Rule 35(c) motion using the proper form. (See id.) The

trial court denied the second Rule 35(c) motion on November 3, 2008, and the trial

court’s order was affirmed on appeal. See People v. Freeman, No. 08CA2377 (Colo.

App. Feb. 24, 2011) (unpublished) (Doc. #7-6). On June 20, 2011, the Colorado

Supreme Court denied Mr. Freeman’s petition for writ of certiorari in the state court

postconviction proceedings. (See Doc. #7-8.)

Mr. Freeman filed the instant application on July 28, 2011, asserting seven

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Mr. Freeman’s first two claims are numbered 1(a) and 1(b) in the application. (See Doc. #1 at

11-12.) He asserts two claims identified as claim 5 in the application, the second of which is an ineffective

assistance of counsel claim. (See id. at 19-22.) Respondents identify the ineffective assistance of

counsel claim as claim 6 in their Pre-Answer Response (see Doc. #7 at 15) and Mr. Freeman does the

same in his reply (see Doc. #8 at 11). The Court also will refer to the ineffective assistance of counsel

claim as claim 6.

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claims for relief.1

 He specifically claims that:

1(a). The trial court erred in failing to instruct the jury regarding the limited

purpose for admission of Mr. Freeman’s statements to Dr. Miller during a

court-ordered sanity examination.

1(b). The trial court erred in admitting the expert testimony of Dr. Miller because

it was based on false information.

2. The trial court erred in admitting statements obtained by jailhouse

informant Eddie Johnson in violation of Mr. Freeman’s right to counsel.

3. The trial court erred in admitting statements obtained from Mr. Freeman

during police interrogations.

4. The trial court erred in admitting evidence of Mr. Freeman’s character in

violation of Rule 404 of the Colorado Rules of Evidence.

5. The prosecution committed misconduct by improperly influencing Dr.

Miller’s opinion and testimony, knowingly presenting false testimony of

Eddie Johnson, knowingly presenting false testimony of Charles Spink,

and destroying the exculpatory portion of the interrogation tape.

6. Trial and/or appellate counsel were ineffective by failing to properly

investigate witnesses Eddie Johnson, Charles Spink, and Dr. Miller; failing

to properly investigate the circumstances surrounding Mr. Freeman’s

statements to the police; failing to hire an explosives expert; and failing to

raise the issue of illegal sentences on appeal.

Respondents first assert that the instant action is barred by the one-year

limitation period in 28 U.S.C. § 2244(d). That statute provides as follows:

(1) 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 latest of–

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(A) the date on which the judgment became

final by the conclusion of direct review or the

expiration of the time for seeking such review;

(B) the date on which the impediment to filing

an application created by State action in

violation of the Constitution or laws of the

United States is removed, if the applicant was

prevented from filing by such State action;

(C) the date on which the constitutional right

asserted was initially recognized by the

Supreme Court, if the right has been newly

recognized by the Supreme Court and made

retroactively applicable to cases on collateral

review; or

(D) the date on which the factual predicate of

the claim or claims presented could have been

discovered through the exercise of due

diligence.

(2) The 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).

In order to apply the one-year limitation period, the Court first must determine the

date on which Mr. Freeman’s conviction became final. See 28 U.S.C. § 2244(d)(1)(A). 

In general, a conviction becomes final following a decision by the state court of last

resort on direct appeal when the United States Supreme Court denies review, or, if no

petition for writ of certiorari is filed, when the time for seeking such review expires. See

Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Pursuant to Rule 13.1 of the

Rules of the Supreme Court of the United States, Mr. Freeman had ninety days to seek

review in the United States Supreme Court after the Colorado Supreme Court denied

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The ninetieth day after June 3, 2002, was Sunday, September 1, 2002, and the next day was a

federal legal holiday. Therefore, the filing period extended until Tuesday, September 3, 2002. See Sup.

Ct. R. 30.1.

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his petition for writ of certiorari on direct appeal on June 3, 2002, but he did not do so. 

Therefore, the Court finds that Mr. Freeman’s conviction became final on September 3,

2002, when the time for filing a petition for writ of certiorari in the United States

Supreme Court expired.2

 Mr. Freeman’s argument that the state court proceedings did

not end until the Colorado Supreme Court issued its mandate on direct appeal on June

14, 2002, does not alter the date on which his conviction became final because,

pursuant to Rule 13.3 of the Rules of the Supreme Court of the United States, the time

to file a petition for writ of certiorari runs from the date of entry of the judgment or order

sought to be reviewed and not the date on which the mandate issues.

Mr. Freeman contends that the one-year limitation period did not begin to run

when his conviction became final because it began to run on a later date as provided in

§ 2244(d)(1)(B) and § 2244(d)(1)(D). The potential starting date in § 2244(d)(1)(B) is

“the date on which the impediment to filing an application created by State action in

violation of the Constitution or laws of the United States is removed, if the applicant was

prevented from filing by such State action.” Mr. Freeman specifically argues that he

was prevented from filing a timely action because his trial and direct appeal attorneys

did not provide him with documents from their files until October 2004 despite several

requests for those documents beginning in June 2002, and because the trial court

denied the motions he filed in June 2003 and September 2004 seeking a loan of

transcripts. Mr. Freeman maintains that access to the documents in his attorneys’ files

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and the transcripts was necessary to pursue postconviction relief in both state and

federal court.

The Court is not persuaded by these arguments because § 2244(d)(1)(B) only

applies in the context of an impediment created by unconstitutional state action. Mr.

Freeman fails to demonstrate the existence of any unconstitutional state action because

his attorneys are not state actors, see Polk County v. Dodson, 454 U.S. 312, 325

(1981), and he fails to demonstrate that the trial court’s denial of his motions for a loan

of transcripts violated his rights under the Constitution or federal law.

The Court also is not persuaded that a lack of access to the documents in his

attorneys’ files or the transcripts actually prevented Mr. Freeman from filing a federal

habeas petition. See Lloyd v. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002) (stating

“that whatever constitutes an impediment [under § 2244(d)(1)(B)] must prevent a

prisoner from filing his petition”); see also Heinemann v. Murphy, 401 F. App’x 304,

309-10 (10th Cir. 2010) (“Courts have unanimously rejected the proposition that the

absence of transcripts automatically triggers statutory tolling under § 2244(d)(1)(B).”). 

Mr. Freeman maintains that a lack of access to the documents in his attorneys’ files and

the transcripts prevented him from presenting his claims properly in state court

postconviction proceedings and that this impediment to pursuing postconviction relief in

state court necessarily impeded his ability to file a federal petition because he is

required to exhaust state remedies before filing a federal petition. However, some of

Mr. Freeman’s claims already had been exhausted on direct appeal. In addition, the

motions for transcripts, which Mr. Freeman filed prior to his receipt of the documents

from his attorneys and obviously without access to the requested transcripts, outlined

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the claims he sought to raise in the state court postconviction proceedings. (See Doc.

#10-1 at 2-3; Doc. #10-4 at 1-2.) Under Colorado law, “[a] defendant need not set forth

the evidentiary support for his allegations in his initial Crim. P. 35 motion; instead, a

defendant need only assert facts that if true would provide a basis for relief under Crim.

P. 35.” White v. Denver Dist. Court, 766 P.2d 632, 635 (Colo. 1988). Therefore, the

Court cannot conclude that Mr. Freeman was prevented from filing either a state

postconviction motion or a federal habeas petition as required under § 2244(d)(1)(B). 

To the extent Mr. Freeman asserts these same arguments in support of equitable tolling

of the one-year limitation period, the arguments will be addressed in that context below.

Finally, the Court will address one other issue that may be relevant to §

2244(d)(1)(B), even though Mr. Freeman does not specifically raise the argument. Mr.

Freeman asserts that his constitutional rights under Brady v. Maryland, 373 U.S. 87

(1963), were violated because the prosecution withheld exculpatory evidence that Eddie

Johnson, a jailhouse informant who testified for the prosecution, was a paid government

agent. At Mr. Freeman’s trial, Eddie Johnson testified that he did not expect to receive

a benefit for providing information regarding Mr. Freeman. The specific Brady material

at issue is a letter addressed to an individual in the district attorney’s office that is

purportedly signed by Eddie Johnson and dated January 13, 1997. (See Doc. #7-5 at

39-42.) The letter refers to the consequences of again doing the right thing while in jail

and states “Mr. Stephen Lee and Frank Moschetti I felt needed some help. RE: Mr.

Freeman.” (Doc. #7-5 at 39.) The letter also states “[t]he last time I saw Frank

Moschetti of your office. He said he would see my sentence halfed [sic]. That was after

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Mr. Fred Nichols was convicted in the Lori Ann Lowe murders.” (Id. at 41.) The record

indicates that Frank Moschetti was a prosecuting attorney in Mr. Freeman’s case. Mr.

Freeman contends that he discovered this letter in October 2008 and that the letter is

exculpatory because the letter demonstrates Eddie Johnson, contrary to his trial

testimony, did receive a benefit in exchange for his testimony.

Mr. Freeman primarily relies on the Eddie Johnson letter in support of equitable

tolling of the one-year limitation period, an issue that will be addressed below. The

Court rejects the argument that the Eddie Johnson letter could be construed as an

argument for delaying commencement of the one-year limitation period in the context of

§ 2244(d)(1)(B). First, it is not clear that § 2244(d)(1)(B) applies to Brady claims, see

Wood v. Spencer, 487 F.3d 1, 6 (1st Cir. 2007) (declining to resolve the “vexing

question” of whether § 2244(d)(1)(B) applies to Brady claims), because a different

statutory provision, § 2244(d)(1)(D), specifically relates to the discovery of the factual

basis for a claim. More importantly, and assuming § 2244(d)(1)(B) does apply to Brady

claims, there is no allegation or indication that the alleged Brady violation prevented Mr.

Freeman from filing a federal habeas petition. Although any federal habeas petition Mr.

Freeman filed prior to his discovery of the alleged Brady material would not have

included a claim based on suppression of the Brady material, the alleged Brady

violation did not prevent Mr. Freeman from pursuing any claims unrelated to the alleged

Brady violation. Furthermore, the federal habeas corpus statutes do not prohibit a

claim raised in a second or successive habeas corpus petition when the factual

predicate “could not have been discovered previously through the exercise of due

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diligence.” 28 U.S.C. § 2244(b)(2)(B)(i).

Mr. Freeman next argues that his discovery of the alleged Brady material in

October 2008 delays commencement of the one-year limitation period until that time

pursuant to § 2244(d)(1)(D). Pursuant to § 2244(d)(1)(D), the one-year limitation period

does not begin to run until the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due diligence. The

Court is not persuaded by Mr. Freeman’s § 2244(d)(1)(D) argument because he fails to

demonstrate that the Eddie Johnson letter, which is dated January 13, 1997, could not

have been discovered prior to October 2008 through the exercise of due diligence. It is

Mr. Freeman’s burden to demonstrate due diligence in the context of § 2244(d)(1)(D). 

See Shabazz v. Filion, 402 F. App’x 629, 630 (2d Cir. 2010). The Court finds that Mr.

Freeman fails to satisfy this burden because he fails to explain the circumstances of his

alleged discovery of the letter in October 2008. As a result, the Court is unable to

conclude that Mr. Freeman could not have discovered the letter earlier through the

exercise of due diligence.

For all of these reasons, the Court finds that the one-year limitation period began

to run on September 3, 2002, when Mr. Freeman’s conviction became final.

The next question the Court must answer is whether any of the postconviction

proceedings Mr. Freeman initiated tolled the one-year limitation period. Pursuant to 28

U.S.C. § 2244(d)(2), a properly filed state court postconviction motion tolls the one-year

limitation period while the motion is pending. An application for postconviction review is

properly filed within the meaning of § 2244(d)(2) “when its delivery and acceptance are

in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett,

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531 U.S. 4, 8 (2000). These requirements include:

(1) the place and time of filing; (2) the payment or waiver of

any required filing fees; (3) the obtaining of any necessary

judicial authorizations that are conditions precedent to filing,

such as satisfying any filing preconditions that may have

been imposed on an abusive filer; and (4) other conditions

precedent that the state may impose upon the filing of a

post-conviction motion.

Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000).

The issue of whether a state court postconviction motion is pending for the

purposes of § 2244(d)(2) is a matter of federal law, but “does require some inquiry into

relevant state procedural laws.” See Gibson v. Klinger, 232 F.3d 799, 806 (10th Cir.

2000). The term “pending” includes “all of the time during which a state prisoner is

attempting, through proper use of state court procedures, to exhaust state court

remedies with regard to a particular post-conviction application.” Barnett v. Lemaster,

167 F.3d 1321, 1323 (10th Cir. 1999). Furthermore, “regardless of whether a petitioner

actually appeals a denial of a post-conviction application, the limitations period is tolled

during the period in which the petitioner could have sought an appeal under state law.” 

Gibson, 232 F.3d at 804.

Mr. Freeman contends that the first Rule 35(c) motion filed on August 22, 2002,

challenging the restitution portion of his sentence, and the Rule 35(b) motion for

sentence reconsideration filed on September 18, 2002, were properly filed and tolled

the one-year limitation period in accordance with § 2244(d)(2). The Court will assume

that both motions were properly filed. As noted above, the trial court denied the first

Rule 35(c) motion on December 23, 2002, and denied the Rule 35(b) motion on

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December 24, 2002. Although Mr. Freeman did not appeal from the denial of either

motion, the one-year limitation period was tolled until the time for filing a notice of

appeal expired forty-five days later. See Colo. App. R. 4(b). Therefore, the one-year

limitation period was tolled pursuant to § 2244(d)(2) from September 3, 2002, when it

began to run, until February 7, 2003, when the time for filing an appeal from the trial

court’s December 24, 2002 order expired.

Mr. Freeman argues that the one-year limitation period also was tolled pursuant

to § 2244(d)(2) while his postconviction motions seeking a loan of transcripts were

pending. As noted above, the first motion for transcripts was filed June 9, 2003, and

denied on August 3, 2004. The second motion for transcripts was filed September 15,

2004, and denied on November 30, 2004. The Court finds that the motions for a loan of

transcripts did not toll the one-year limitation period pursuant to § 2244(d)(2). See, e.g.,

May v. Workman, 339 F.3d 1236, 1237 (10th Cir. 2003) (finding that postconviction

motions for transcripts and petitions for writs of mandamus relating to those motions do

not toll the one-year limitation period pursuant to § 2244(d)(2)). Mr. Freeman’s reliance

on Rothaermel v. Zavaras, No. 09-cv-00965-ZLW, 2009 WL 1810838 (D. Colo. June

24, 2009), in support of this argument is misplaced. In Rothaermel, the court did not

reach the issue of whether the prisoner’s motions requesting free transcripts tolled the

one-year limitation period in accordance with § 2244(d)(2) because the first such motion

was filed after the one-year limitation period already had expired. See id. at *3.

Finally, the state court proceedings relevant to Mr. Freeman’s second

postconviction Rule 35(c) motion, which was filed on the proper form on May 18, 2005,

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also did not toll the one-year limitation period in accordance with § 2244(d)(2) because

the second Rule 35(c) motion was filed after the one-year limitation period already had

expired in February 2004. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006)

(stating that properly filed state court postconviction motions toll the one-year limitation

period only if they are filed within the one-year limitation period). Therefore, this action

is time-barred in the absence of some other reason to toll the one-year limitation period.

The one-year limitation period in § 2244(d) is not jurisdictional and may be tolled

for equitable reasons. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Generally,

equitable tolling is appropriate if the petitioner shows both “that he has been pursuing

his rights diligently” and “that some extraordinary circumstance stood in his way” and

prevented him from filing in a timely manner. Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005); see Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). A showing of excusable

neglect is not sufficient to justify equitable tolling. See Gibson, 232 F.3d at 808. 

Furthermore, in order to demonstrate he pursued his claims diligently, the petitioner

must “allege with specificity ‘the steps he took to diligently pursue his federal claims.’” 

Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008) (quoting Miller, 141 F.3d at 978).

Equitable tolling also may be appropriate if the petitioner actually is innocent. 

See Gibson, 232 F.3d at 808. An actual innocence argument “is premised on the same

fundamental miscarriage of justice exception that was discussed by the Supreme Court”

in Schlup v. Delo, 513 U.S. 298 (1995), and Coleman v. Thompson, 501 U.S. 722

(1991). Therefore, in the rare and extraordinary case in which a habeas petitioner can

demonstrate equitable tolling is appropriate on actual innocence grounds, the petitioner

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is not required to demonstrate he diligently pursued the actual innocence claim. See

Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010). However, to be credible, a

claim of actual innocence requires a petitioner “to support his allegations of

constitutional error with new reliable evidence--whether it be exculpatory scientific

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

presented at trial.” Schlup, 513 U.S. at 324. The petitioner then must demonstrate

“that it is more likely than not that no reasonable juror would have convicted him in the

light of the new evidence.” Id. at 327. The Court emphasizes that a “substantial claim

that constitutional error has caused the conviction of an innocent person is extremely

rare.” Id. at 324.

Mr. Freeman primarily argues that equitable tolling of the one-year limitation

period is appropriate because he is actually innocent. The factual premise for Mr.

Freeman’s actual innocence argument is the letter purportedly written by Eddie Johnson

and dated January 13, 1997, that, according to Mr. Freeman, contradicts Eddie

Johnson’s trial testimony that he did not receive any benefit for testifying against Mr.

Freeman. As noted above, Mr. Freeman alleges that the Eddie Johnson letter was

suppressed by the government until October 2008, but he provides no details regarding

the circumstances of his discovery of that letter.

The Court is not persuaded that the Eddie Johnson letter is new, reliable

evidence that demonstrates Mr. Freeman is actually innocent because “actual

innocence means factual innocence, not mere legal insufficiency.” Bousley v. United

States, 523 U.S. 614, 623 (1998) (internal quotation marks omitted). Mr. Freeman does

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not contend that he is factually innocent of the crimes for which he was convicted. In

other words, Mr. Freeman does not contend that he did not plant and attempt to

detonate the pipe bomb under the car his stepdaughter and her boyfriend were in and

he does not contend that he did not shoot his stepdaughter while she was running away

from the car. Instead, Mr. Freeman contends that the Eddie Johnson letter would

bolster his insanity defense and would have led to his acquittal on some of the charges. 

Mr. Freeman specifically contends that the Eddie Johnson letter would have supported

his insanity defense because the prosecution expert who opined that Mr. Freeman was

sane relied in part on statements made by Eddie Johnson in reaching that conclusion. 

However, any evidence that Eddie Johnson actually received a benefit for his testimony

would be merely impeaching evidence that does not demonstrate Mr. Freeman is

factually innocent. Furthermore, an insanity defense, even if justified, does not

demonstrate factual innocence. See DeLalio v. Wyoming, 363 F. App’x 626, 628 (10th

Cir. 2010) (finding that a valid legal defense based on cognitive impairment does not

suffice for factual innocence).

Finally, even if the Eddie Johnson letter was relevant to the question of factual

innocence, the Court finds that the letter does not demonstrate “that it is more likely

than not that no reasonable juror would have convicted [Mr. Freeman] in the light of the

new evidence,” Schlup, 513 U.S. at 327, because the Court does not agree with Mr.

Freeman’s interpretation of the statements in that letter. Instead, the Court agrees with

Respondents that the specific reference in the letter to a reduced sentence appears to

relate to assistance provided by Eddie Johnson in a different case and not in Mr.

Freeman’s case. For all of these reasons, the Court finds that equitable tolling is not

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appropriate on the grounds of actual innocence.

Mr. Freeman also appears to argue that equitable tolling is appropriate based on

the lack of access to documents in his attorneys’ files prior to October 2004 and the trial

court’s denials of his motions for transcripts. As discussed above, Mr. Freeman

maintains that access to the documents in his attorneys’ files and the transcripts was

necessary to pursue postconviction relief in both state and federal court.

Mr. Freeman fails to demonstrate that equitable tolling is appropriate based on

the alleged failure of his attorneys to provide him with documents from their files until

October 2004. It is true that “sufficiently egregious misconduct on the part of a habeas

petitioner’s counsel may justify equitable tolling of the AEDPA limitations period.” 

Fleming v. Evans, 481 F.3d 1249, 1256 (10th Cir. 2007); see also Holland, 130 S. Ct.

at 2564 (stating that one-year limitation period is subject to equitable tolling when

“serious instances of attorney misconduct” have occurred). In Fleming, the petitioner’s

substantiated allegations that he had been actively misled by counsel to believe a

habeas petition had been prepared and would be filed were sufficient to warrant an

evidentiary hearing to consider whether equitable tolling was appropriate. See id. at

1256-57. In Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003), a case cited by Mr.

Freeman, the Ninth Circuit addressed this same issue and concluded that misconduct of

the petitioner’s attorney “was sufficiently egregious to justify equitable tolling of the oneyear limitations period.” The particular misconduct in Spitsyn was the following:

Though he was hired nearly a full year in advance of the

deadline, [the attorney] completely failed to prepare and file

a petition. Spitsyn and his mother contacted [the attorney]

numerous times, by telephone and in writing, seeking action,

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but these efforts proved fruitless. Furthermore, despite a

request that he return Spitsyn’s file, [the attorney] retained it

for the duration of the limitations period and more than two

months beyond.

Id.

In the instant action, Mr. Freeman fails to demonstrate that the failure of his

attorneys to provide him with documents from their files between June 2002 and

October 2004 was sufficiently egregious. Unlike the allegations in Fleming and

Spitsyn, Mr. Freeman does not allege that his attorneys were hired to file a federal

habeas petition or that his attorneys actively misled him or somehow caused him to

believe that they were pursuing his claims in either state or federal court. In fact, Mr.

Freeman concedes that direct appeal counsel was permitted to withdraw from

representing Mr. Freeman on January 17, 2003, when he still had a full year to file a

federal habeas petition. In addition, the Court finds that Mr. Freeman fails to

demonstrate equitable tolling is appropriate because he fails to specify what documents

he sought from his attorneys and he fails to explain how his lack of those documents

prevented him from filing a timely habeas petition. Therefore, the Court finds that

equitable tolling is not appropriate on this basis.

Mr. Freeman also fails to demonstrate that equitable tolling is appropriate based

on the trial court’s denials of his motions for transcripts. See Lloyd, 296 F.3d at 634

(stating that “equitable tolling does not excuse [the petitioner’s] late filing simply

because he was unable to obtain a complete trial transcript before he filed his § 2254

application.”); Donovan v. Maine, 276 F.3d 87, 93 (1st Cir. 2002) (concluding that “the

state court’s delay in furnishing the petitioner with the transcript did not establish a basis

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for equitable tolling.”); Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001) (finding that

“lack of access to a trial transcript does not preclude a petitioner from commencing

post-conviction proceedings and therefore does not warrant equitable tolling.”).

For all of these reasons, the Court finds that this action is barred by the one-year

limitation period. Because the Court has determined that the entire action is timebarred, the Court need not address Respondents’ alternative arguments that some of

Mr. Freeman’s claims are unexhausted and procedurally barred. Accordingly, it is

ORDERED that the habeas corpus application is denied and the action is

dismissed as barred by the one-year limitation period in 28 U.S.C. § 2244(d). It is

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FURTHER ORDERED that no certificate of appealability will issue because

Applicant has not made a substantial showing of the denial of a constitutional right.

DATED at Denver, Colorado, this 22nd day of November , 2011.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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