UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

ROBERT J. FREEMAN, 

Petitioner - Appellant, 

v. 

ARISTEDES ZAVARAS; THE 

ATTORNEY GENERAL OF THE STATE 

OF COLORADO,

Respondents - Appellees. 

No. 11-1582 

(D.C. No. 1:11-CV-01955-LTB) 

(D. Colo.) 

ORDER DENYING CERTIFICATE OF APPEALABILITY* 

Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges. 

Robert J. Freeman, a Colorado state prisoner proceeding pro se,1

 seeks a certificate 

of appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C. 

§ 2254 petition. We deny his request for a COA and dismiss this matter. 

 

*After examining Appellant’s brief and the appellate record, this panel has 

determined unanimously that oral argument would not materially assist the determination 

of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is 

therefore ordered submitted without oral argument. This order and judgment 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. 

1

Because Mr. Freeman is proceeding pro se, we construe his pleadings liberally. 

See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 9, 2012

Elisabeth A. Shumaker 

Clerk of Court
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I. BACKGROUND 

A. Factual Background 

In 1996, Mr. Freeman was arrested after he attempted to murder his stepdaughter 

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

stepdaughter as she ran away from the car. Shortly after his arrest, Mr. Freeman 

“admitted shooting [his stepdaughter,] . . . building the bomb[,] and placing it under the 

car.” ROA at 40. 

In January 1997, Eddie Johnson, an inmate housed with Mr. Freeman at a 

Colorado jail, contacted law enforcement officials about statements that Mr. Freeman had 

made to him. Mr. Johnson told the officials that Mr. Freeman had expressed regret that 

he had not bought a larger caliber pistol that would have killed his stepdaughter. Mr. 

Johnson also stated that Mr. Freeman had tried to draw him into a plan to kill Mr. 

Freeman’s stepdaughter and her boyfriend so they could not testify against him at trial. 

B. Procedural Background 

On January 3, 1997, Mr. Freeman was charged with multiple crimes, including 

attempted first-degree murder and conspiracy to commit first-degree murder. Initially, an 

attorney was appointed to represent Mr. Freeman. But on June 13, 1997, the state district 

court determined that Mr. Freeman was not indigent and terminated representation by 

appointed counsel. Mr. Freeman then retained a private attorney to represent him. 

 

F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments 

liberally; this rule of liberal construction stops, however, at the point at which we begin 

to serve as his advocate.”).
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In September 1998, Mr. Freeman entered a plea of not guilty by reason of insanity. 

In 1999, Mr. Freeman’s jury trial began. During the State’s case in chief, Mr. Johnson—

the jailhouse informant—testified about the statements that Mr. Freeman had made to 

him. During Mr. Johnson’s testimony, he stated that he did not expect to receive a 

benefit for providing information regarding Mr. Freeman. 

At the conclusion of the trial, the jury rejected Mr. Freeman’s insanity defense and 

found him guilty of one count of attempted first-degree murder, two counts of attempted 

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

state district court sentenced Mr. Freeman to 144 years of imprisonment. 

Mr. Freeman filed a direct appeal, which the Colorado Court of Appeals rejected. 

Mr. Freeman then filed a petition for writ of certiorari in the Colorado Supreme Court, 

which was denied on June 3, 2002. 

On August 22, 2002, Mr. Freeman filed pro se a petition for state post-conviction 

relief pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. On December 

23, 2002, a state district court rejected the motion. Mr. Freeman did not appeal. 

On September 18, 2002, Mr. Freeman filed pro se a petition seeking 

reconsideration of his sentence pursuant to Rule 35(b) of the Colorado Rules of Criminal 

Procedure. On December 24, 2002, a state district court denied the motion. Mr. Freeman 

did not appeal. 

On June 9, 2003, Mr. Freeman filed a motion in state district court requesting a 

loan of his trial transcripts. On August 3, 2004, the state district court denied the motion. 
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On September 15, 2004, Mr. Freeman filed a second motion in state district court 

requesting a loan of transcripts, which also was denied. 

On March 21, 2005, Mr. Freeman filed pro se a second state petition for postconviction relief pursuant to Rule 35(c). On April 26, 2005, a state district court denied 

the petition because Mr. Freeman had not used a proper form. On May 18, 2005, Mr. 

Freeman refiled his second Rule 35(c) petition using the proper form. On November 3, 

2008, a state district court denied the motion. On February 24, 2011, the Colorado Court 

of Appeals affirmed the district court’s ruling. Mr. Freeman filed a petition for writ of 

certiorari in the Colorado Supreme Court seeking to challenge the state court postconviction proceedings. On June 20, 2011, the Colorado Supreme Court denied the 

petition. 

In October 2008—after Mr. Freeman filed his second Rule 35(c) petition in state 

court, but before the Colorado courts had ruled on the petition—Mr. Freeman discovered 

a letter written by Mr. Johnson on January 13, 1997, (the “Johnson Letter”) to the district 

attorney’s office that prosecuted Mr. Freeman. In the letter, Mr. Johnson stated that he 

felt that Frank Moschetti, one of the prosecutors in Mr. Freeman’s case “needed some 

help. RE: Mr. Freeman.” Freeman v. Zavaras, No. 11-cv-01955-BNB, slip op. at 8 (D. 

Colo. Nov. 22, 2011). Mr. Johnson also stated that the last time he had seen Mr. 

Moschetti, Mr. Moschetti “said he would see my sentence halved. That was after Mr. 

Fred Nichols was convicted in the Lori Ann Lowe Murders.” Id. at 8-9.2

 

 2 Fred Nichols was not a defendant in the instant case, and Mr. Freeman was not 

involved in the murder of Lori Ann Lowe. 
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On July 28, 2011, Mr. Freeman filed a petition for writ of habeas corpus in the 

United States District Court for the District of Colorado pursuant to 28 U.S.C. § 2254. In 

his § 2254 petition, Mr. Freeman asserted seven claims for relief. In one claim, Mr. 

Freeman contended that the State had suppressed, in violation of Brady v. Maryland, 373 

U.S. 87 (1963), evidence relating to an alleged deal between Mr. Johnson and the State 

for testifying against Mr. Freeman. The State argued that Mr. Freeman’s § 2254 petition 

was time-barred. It also contended that the Johnson Letter did not support a Brady claim 

because the deal referenced in the Johnson Letter related to the prosecution of Fred 

Nichols and not the prosecution of Mr. Freeman. 

The federal district court denied Mr. Freeman’s petition, concluding that his 

petition was time-barred under the one-year statute of limitations for filing a § 2254 

petition. Freeman, slip op. at 18. The federal district court also concluded that Mr. 

Freeman did not demonstrate a basis to equitably toll the one-year statute of limitations. 

See id. at 14-17. 

Mr. Freeman filed a timely notice of appeal and a request for a COA seeking to 

challenge the district court’s denial of his § 2254 petition. Mr. Freeman also filed a 

motion to proceed in forma pauperis. 

II. DISCUSSION

A COA is a jurisdictional prerequisite to this court’s review of a § 2254 petition. 

28 U.S.C. § 2253(c)(1)(A); accord Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). 

To receive a COA, a petitioner must make a “substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here, a district court denies a 
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habeas petition on procedural grounds, a COA may issue only when the petitioner shows 

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) (emphasis added). 

The federal district court concluded that Mr. Freeman’s conviction became final 

on September 3, 2002, the date on which his time for filing a petition for writ of certiorari 

to the United States Supreme Court expired. Freeman, slip op. at 6. Mr. Freeman does 

not dispute that conclusion. But he argues that the one-year period for filing his § 2254 

petition should be statutorily tolled either because the State impeded him from filing a 

claim until 2004 or because he did not discover the factual predicate on which his claims 

are based until 2008. Additionally, Mr. Freeman argues that, even if statutory tolling 

does not apply, the district court should have equitably tolled the period in which he 

could file a timely § 2254 petition. We address each of Mr. Freeman’s arguments in turn. 

A. Statutory Tolling 

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) established a oneyear statute of limitation to bring habeas petitions under 28 U.S.C. § 2254. See 28 U.S.C. 

§ 2244(d). In relevant part, § 2244(d)(1) states that the one-year period for filing a 

petition shall run from the latest of: 

(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; 
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(B) the date on which [an] 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; . . . 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. 

Mr. Freeman contends that his § 2254 petition was timely under either 

§ 2244(d)(1)(B) or § 2244(d)(1)(D). The federal district court rejected both of these 

arguments. For the reasons explained below, we hold that Mr. Freeman has failed to 

demonstrate that reasonable jurists would debate the correctness of the district court’s 

procedural conclusions. 

1. Withholding of Documents 

Title 28 U.S.C. § 2244(d)(1)(B) provides that the one-year period for filing a 

habeas petition begins to run on “the date on which [an] 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.” 

(Emphases added). 

Mr. Freeman contends that he was prevented from filing a timely action because 

the attorneys who represented him during trial and on direct appeal refused to provide 

him with documents from their files, despite several requests for the documents 

beginning in June 2002. Additionally, he argues that he was impeded from filing a 

timely action because the state district court denied his June 2003 and September 2004 

requests to borrow his trial transcripts. Mr. Freeman therefore argues that under 
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§ 2244(d)(2)(B), the one-year period for filing his habeas petition did not begin to run 

until sometime in 2004 when he received the documents relating to his trial and appeal. 

The federal district court rejected this argument, stating: “§ 2244(d)(1)(B) . . . 

applies [only] in the context of an impediment caused by unconstitutional state action.” 

Freeman, slip op. at 7. The district court concluded that Mr. Freeman had failed to 

demonstrate the existence of any unconstitutional state action because his attorneys were 

not state actors and because the denial of his motions for a loan of transcripts did not 

violate his constitutional rights. 

Additionally, the district court determined that, even if it were unconstitutional to 

deny Mr. Freeman access to his court records and transcripts, Mr. Freeman had failed to 

establish that lack of access actually prevented him from filing a timely § 2254 petition or 

a timely petition for state post-conviction relief. The latter would have tolled the time 

period for filing a § 2254 petition. See 28 U.S.C. § 2244(d)(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.”). In support of this conclusion, the district court noted 

that some of the claims asserted in Mr. Freeman’s § 2254 petition were exhausted on 

direct appeal. Additionally, the district court noted that in Mr. Freeman’s requests for 

transcripts, which he filed before receiving any documents from his attorneys, he 

“outlined the claims his sought to raise in [his] . . . postconviction proceedings.” 

Freeman, slip op. at 7-8. Finally, the district court noted that “[u]nder Colorado law, ‘[a] 

defendant need not set forth the evidentiary support for his allegations in his initial Crim. 
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P. 35 motion; instead, a defendant need only assert facts that if true would provide a basis 

for relief under Crim. P. 35.’” Id. at 8 (quoting White v. Denver Dist. Crt., 766 P.2d 632, 

635 (Colo. 1988)). 

In his application for COA, Mr. Freeman contends that the district court erred in 

concluding that his attorneys were not state actors. But Mr. Freeman has not 

demonstrated that his attorneys’ conduct or the denials of his motions for transcripts by 

the state district court constituted unconstitutional state action. Additionally, Mr. 

Freeman has not demonstrated how this alleged unconstitutional state action impeded 

him from filing a timely habeas petition or a petition for state post-conviction relief. Mr. 

Freeman has therefore failed to establish that § 2244(d)(1)(B) should apply to his claims. 

See, e.g., Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (rejecting a habeas 

petitioner’s § 2244(d)(1)(B) argument because the petitioner “failed to explain why the 

documents held by the State were necessary to pursue his federal claim and . . . did not 

show diligent pursuit of his claims even after receiving the material”); see also Miller v. 

Marr, 141 F.3d 976, 978 (10th Cir. 1998) (placing the burden on the petitioner to 

“provide[] . . . specificity regarding the alleged lack of access [to legal materials] and the 

steps he took to diligently pursue his federal claims”). 

Accordingly, we hold that Mr. Freeman has failed to demonstrate that reasonable 

jurists would debate the correctness of the district court’s conclusion that § 2244(d)(1)(B) 

does not apply in this case. 

2. Discovery of the Johnson Letter 
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Mr. Freeman next argues that, pursuant to 28 U.S.C. § 2244(d)(1)(D), he had one 

year from the day he discovered the Johnson Letter to file a habeas petition in federal 

court. As noted above, § 2244(d)(1)(D) provides that the one-year period for filing a 

§ 2254 petition begins to run on “the date on which the factual predicate of the claim or 

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

The federal district court concluded that Mr. Freeman was not entitled to statutory 

tolling under § 2241(d)(1)(D). The district court first noted that the Johnson Letter was 

dated January 13, 1997. The court then explained that Mr. Freeman had not “explain[ed] 

the circumstances of his alleged discovery of the [Johnson] [L]etter in October 2008.” 

Freeman, slip op. at 10. The court stated that it was therefore “unable to conclude that 

Mr. Freeman could not have discovered the [Johnson] [L]etter earlier through the 

exercise of due diligence.” Id. 

In his application for a COA, Mr. Freeman argues that when he filed his § 2254 

petition, he did not understand that he needed to explain the circumstances of discovering 

the Johnson Letter to qualify for statutory tolling pursuant to § 2244(d)(1)(D). But even 

after the district court explained its basis for denying Mr. Freeman’s § 2244(d)(1)(D) 

argument, Mr. Freeman has not attempted to clarify how he discovered the Johnson 

Letter or attempted to explain why he could not have discovered the Johnson Letter at an 

earlier date. Thus, it is unclear whether the Johnson Letter could have been discovered at 

an earlier date through the exercise of due diligence. We therefore hold that Mr. Freeman 

has failed to demonstrate that reasonable jurists would debate the correctness of the 

district court’s conclusion that § 2244(d)(1)(D) does not apply in this case. 
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B. Equitable Tolling

Finally, Mr. Freeman contends that the time period for filing his § 2254 petition 

should be equitably tolled. 

AEDPA’s one-year statute of limitations is subject to equitable tolling. See 

Holland v. Florida, 130 S. Ct. 2549, 2560 (2010) (“[L]ike all 11 Courts of Appeals that 

have considered the question, we hold that § 2244(d) is subject to equitable tolling in 

appropriate cases.”). However, equitable tolling is only available in those “rare and 

exceptional circumstances,” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) 

(quotations omitted), in which application of the limitations period might render the 

habeas remedy “inadequate and ineffective,” Miller, F.3d at 978. For example, we have 

explained that equitable tolling is appropriate “when a prisoner is actually innocent, when 

an adversary’s conduct—or other uncontrollable circumstances—prevents a prisoner 

from timely filing, or when a prisoner actively pursues judicial remedies but files a 

defective pleading during the statutory period.” Gibson, 232 F.3d at 808 (citations 

omitted). 

When a habeas petitioner seeks equitable tolling on actual innocence grounds, he 

must “show that a constitutional violation has probably resulted in the conviction of one 

who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (quotations 

omitted). “To establish the requisite probability, the petitioner must show that it is more 

likely than not that no reasonable juror would have convicted him in the light of . . . new 

evidence [of actual innocence] . . . that was either excluded or unavailable at trial.” Id. at 

327-28. 
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Mr. Freeman contends that the one-year time period for filing his § 2254 petition 

should be equitably tolled because the Johnson Letter “evidences an [a]ctual [i]nnocence 

claim.” Aplt. Br. at 2. The district court rejected this argument, stating: 

The [c]ourt is not persuaded that the . . . Johnson [L]etter is 

new, reliable, evidence that demonstrates that 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) (quotations omitted). Mr 

Freeman does not contend that he is factually innocent of the 

crimes for which he was convicted . . . Instead, Mr. Freeman 

contends that the . . . Johnson [L]etter would bolster his 

insanity defense and would have led to his acquittal on some 

of the charges. . . . However, any evidence that [Mr.] Johnson 

actually received a benefit for his testimony would be merely 

impeaching evidence that does not demonstrate that Mr. 

Freeman is factually innocent. Furthermore, an insanity 

defense, even if justified, does not demonstrate factual 

innocence. See DeLalio v. Wyoming, 363 Fed. Appx. 626, 

628 (10th Cir. 2010) (finding that a valid legal defense based 

on cognitive impairment does not suffice for factual 

innocence). 

Freeman, slip op. at 14-15 (emphasis added). 

Additionally, the district court stated that “even if the . . . Johnson [L]etter was 

relevant to the question of factual innocence, the [c]ourt finds that the letter does not 

demonstrate that it is more likely than not that no reasonable juror would have convicted 

Mr. Freeman in light of the new evidence.” Id. at 15 (quotations omitted). 

In his application for a COA, Mr. Freeman repeats the same equitable tolling 

arguments that he asserted in the district court. Although he characterizes his arguments 

concerning the Johnson Letter as an “actual innocence claim,” he does not argue that he 

is factually innocent of the crimes for which he was convicted. See Bousley, 523 U.S. at 
-13- 

623 (“[A]ctual innocence means factual innocence, not mere legal insufficiency.”); 

United States v. Gabaldon, 522 F.3d 1121, 1124 n.2 (10th Cir. 2008) (noting that 

“[a]ctual (factual) innocence is a ground for applying equitable tolling,” but that “legal 

innocence” is not); see also Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000) (noting 

that legal defenses relate to legal, not factual innocence). Thus, Mr. Freeman has not 

demonstrated entitlement to equitable tolling based on actual innocence. 

After reviewing Mr. Freeman’s § 2254 petition, Mr. Freeman’s appellate filings, 

and the entire record before us, we conclude that this case does not present one of the 

“rare and exceptional circumstances” in which the untimely filing of a § 2254 petition 

should be equitably excused. We therefore hold that reasonable jurists would not debate 

the district court’s conclusion that Mr. Freeman has failed to demonstrate he is entitled to 

equitable tolling. 

III. CONCLUSION

Mr. Freeman has failed to demonstrate that reasonable jurists would debate the 

correctness of the district court’s conclusion that his § 2254 petition is time-barred. We 

therefore deny Mr. Freeman’s application for a COA and dismiss this matter. We also 

deny Mr. Freeman’s motion to proceed in forma pauperis. 

ENTERED FOR THE COURT 

Scott M. Matheson, Jr. 

Circuit Judge