Robinson v. Poppell , 66 F. App'x 152 ( 2003 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    APR 18 2003
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    TONY ROBINSON,
    Petitioner-Appellant,               Nos. 02-6366, 02-6391
    v.                                     (D.C. No. CIV-01-1683-A)
    DAYTON J. POPPELL, Warden,                             (W. D. Okla.)
    Respondent-Appellee.
    ORDER AND JUDGMENT            *
    Before EBEL , HENRY , and HARTZ , Circuit Judges.
    Petitioner pro se Tony Robinson is a prisoner in the custody of the state of
    Oklahoma. He received his prison sentence in 1999, after pleading guilty to two
    counts of shooting with intent to kill and one count of possession of a firearm
    after a felony conviction. On October 25, 2001, Petitioner filed an application for
    a writ of habeas corpus under 
    28 U.S.C. § 2254
    . Following the recommendation
    of a United States Magistrate Judge, the district court dismissed the petition as
    untimely in an order entered October 25, 2002. Petitioner now seeks a Certificate
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    of Appealability (COA), so that he may appeal the district court’s decision. He
    also seeks leave to proceed in forma pauperis (IFP). We deny his request for a
    COA and his request to proceed IFP.
    In his original § 2254 application, and in his briefs on appeal, Petitioner
    offers several arguments why his petition should not be considered time-barred.
    Under 
    28 U.S.C. § 2244
    (d)(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.” This “limitations period generally runs from the date
    on which the state judgment became final after direct appeal, see 
    28 U.S.C. § 2244
    (d)(1)(A).” Fisher v. Gibson, 
    262 F.3d 1135
    , 1142 (10th Cir. 2001). In
    this case Petitioner does not seem to dispute that he failed to file his § 2254
    application within one year of his judgment becoming final. He contends,
    however, that (1) several opinions issued by the United States Supreme Court
    have changed the law concerning the rights that he asserts, (2) his attorney failed
    to comply with his request to file an appeal in state court, and (3) he has
    established grounds justifying equitable tolling of the limitations period.
    In reviewing whether Petitioner’s § 2254 application was timely, the
    magistrate judge considered the allegation that certain Supreme Court opinions
    had created changes in the law affecting Petitioner’s claims. The magistrate
    judge construed Petitioner’s claim as an argument that the one-year limitations
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    period did not start to run until these opinions were issued. Under 
    28 U.S.C. § 2244
    (d)(1)(C), the limitations period may be measured from “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.”
    Petitioner cited three Supreme Court cases as reflecting changes in the law
    applicable to his case—Williams v. Taylor, 
    529 U.S. 362
     (2000), Roe v. Flores-
    Ortega, 
    528 U.S. 470
     (2000), and Lackawanna County District Attorney v. Coss,
    
    532 U.S. 394
     (2001). The magistrate judge noted that even if Williams and Roe
    extended the limitations period under 
    28 U.S.C. § 2244
    (d)(1)(C), Petitioner did
    not file his § 2254 application within a year of the Supreme Court’s rulings. The
    Court issued its opinion in Roe on February 23, 2000, and its opinion in Williams
    on April 18, 2000. Petitioner did not commence post-conviction proceedings in
    state court until May 16, 2001, and he did not file his federal habeas application
    until October 25, 2001. With respect to Lackawanna, 
    532 U.S. 394
    , the
    magistrate judge pointed out that the Supreme Court’s holding concerned the
    circumstances under which a prisoner can use a § 2254 petition to challenge an
    earlier state conviction on which a sentencing enhancement was based.
    Lackawanna thus did not signify the recognition of a new right relating to either
    of the two substantive claims asserted in Petitioner’s § 2254 application—his
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    claim that he had received ineffective assistance of counsel when his attorney
    failed to file an appeal or his claim that his conviction violated the Double
    Jeopardy Clause.
    The magistrate judge next discussed whether Petitioner’s allegation that his
    attorney refused to follow his instructions to file an appeal supported his
    contention that his petition should be considered timely. The record indicates that
    after the state trial court sentenced Petitioner, Petitioner filed a pro se motion to
    withdraw his guilty pleas. The trial court denied the motion during a hearing on
    November 24, 1999, at which defense counsel was present. Petitioner maintains
    that after the hearing, he asked his attorney to file an appeal. His attorney
    refused, stating that there were no grounds for an appeal.
    The magistrate judge examined whether these circumstances suggested that
    the limitations period should be calculated as having started on the date Petitioner
    learned, or should have learned, that his attorney had not filed an appeal. Under
    
    28 U.S.C. § 2244
    (d)(1)(D), in some cases the limitations period may begin
    running from “the date on which the factual predicate of the claim or claims
    presented could have been discovered through the exercise of due diligence.”
    Rejecting the idea that this provision applied to Petitioner’s § 2254 application,
    however, the magistrate judge stressed that “it appears that Petitioner was aware
    or with reasonable diligence should have been aware on November 24, 1999, of
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    the factual basis for his claim”; that “Petitioner presents no argument or evidence
    as to when or how he may have discovered that a certiorari appeal had not been
    filed”; and that “Petitioner waited nearly 18 months before seeking an appeal out
    of time.” Report and Recommendation, at 8.
    Finally, the magistrate judge turned to an analysis of whether Petitioner had
    established grounds for equitable tolling. Such tolling is appropriate only under
    “rare and exceptional circumstances.” Burger v. Scott, 
    317 F.3d 1133
    , 1141 (10th
    Cir. 2003) (internal quotation marks omitted). “Equitable tolling would be
    appropriate, for example, 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. Simple excusable neglect is not
    sufficient.” Gibson v. Klinger, 
    232 F.3d 799
    , 808 (10th Cir. 2000) (internal
    citations omitted). Here, the magistrate judge found that Petitioner had failed to
    show exceptional circumstances supporting equitable tolling. The magistrate
    judge observed that Petitioner had not diligently pursued his claims. Petitioner
    did not initiate any state post-conviction proceedings until almost a year-and-a-
    half after his conviction became final, and he has not provided any explanation
    justifying his failure to seek federal habeas relief until the time that he did.
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    In adopting the magistrate judge’s conclusion that Petitioner’s habeas
    petition was untimely under 
    28 U.S.C. § 2244
    (d), the district court relied on a
    procedural ground to dismiss the action. The United States Supreme Court has
    instructed that
    “[w]hen the district court denies a habeas petition on procedural
    grounds without reaching the prisoner’s underlying constitutional
    claim, a COA should issue when the prisoner shows, at least, 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). The Slack court went on to note
    that “[w]here 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.
     We recognize that in determining whether to
    issue a COA, we should not undertake a “full consideration of the factual or legal
    bases adduced in support of the claims.” Miller-El v. Cockrell, 
    123 S. Ct. 1029
    ,
    1039 (2003). Rather, “[t]he COA determination under § 2253(c) requires an
    overview of the claims in the habeas petition and a general assessment of their
    merits.” Id. (emphasis added).
    We find that the district court’s procedural ruling would not be debatable
    among jurists of reason. Therefore, for substantially the same reasons set forth in
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    the magistrate judge’s Report and Recommendation of September 6, 2002, and the
    district court’s order of October 25, 2002, we DENY Movant’s request for a
    COA. We also DENY his request to proceed IFP.
    ENTERED FOR THE COURT
    Harris L Hartz
    Circuit Judge
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