Taylor v. Martin , 757 F.3d 1122 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH July 8, 2014
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
LAWRENCE JAMIR TAYLOR,
Petitioner - Appellant,
No. 14-5030
v.
TERRY MARTIN, Warden,
Respondent - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 13-CV-00363-TCK-FHM)
Submitted on the briefs: *
M. Michael Arnett of Arnett Law Firm, Oklahoma City, Oklahoma, for Petitioner
- Appellant.
Joshua L. Lockett of Office of the Attorney General for the State of Oklahoma,
Oklahoma City, Oklahoma, for Respondent - Appellee (did not file a brief in this
proceeding pursuant to 10th Cir. R.22.1(B).)
Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.
*
After examining the briefs and 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); 10th Cir. R. 34.1 (G). The cause therefore
is ordered submitted without oral argument.
KELLY, Circuit Judge.
Petitioner–Appellant Lawrence Jamir Taylor seeks a certificate of
appealability (COA) to appeal the district court’s dismissal of his petition for writ
of habeas corpus under 28 U.S.C. § 2254. Taylor v. Martin, No. 13-cv-363-TCK-
FHM, 2014 WL 357083 (N.D. Okla Jan. 31, 2014). We deny his request and
dismiss his appeal.
Background
On May 19, 2009, an Oklahoma jury found Mr. Taylor guilty of first degree
murder and shooting with intent to kill. App. 6; Taylor, 2014 WL 357083, at *1.
He was sentenced to consecutive life terms of imprisonment. Taylor, 2014 WL
357083, at *1. On February 16, 2011, the Oklahoma Court of Criminal Appeals
(OCCA) affirmed his convictions and sentences. Taylor v. State, 248 P.3d 362,
380 (Okla. Crim. App. 2011). He did not seek a writ of certiorari from the United
States Supreme Court. Taylor, 2014 WL 357083, at *3.
On September 16, 2011, Mr. Taylor filed an application for post-conviction
relief in state district court. Id. at *4. The focus of his claim was that a
government witness, Jason Cheatham, lied at trial when he testified that Mr.
Taylor had confessed that he shot the two victims. Id. To back up this claim, Mr.
Taylor offered an affidavit executed by Mr. Cheatham, in which Mr. Cheatham
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recanted his testimony that Mr. Taylor had confessed to him. Id. On December
29, 2011, the state district court denied post-conviction relief. Id. Mr. Taylor
appealed to the OCCA, alleging that procedural inadequacies and evidentiary
rulings in the post-conviction proceedings violated his constitutional rights. Id.The OCCA affirmed the denial of post-conviction relief. Id.On June 19, 2013, Mr. Taylor filed a petition under 28 U.S.C. § 2254 in
federal district court. Id. The government responded with a motion to dismiss
Mr. Taylor’s petition as time barred. Id. The district court agreed and dismissed
Mr. Taylor’s petition with prejudice and denied a certificate of appealability. Id.
at *9. Mr. Taylor appealed to this court.
Discussion
A COA requires that an applicant make a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district
court denied a § 2254 petition on procedural grounds, the petitioner must
demonstrate that it is reasonably debatable whether (1) the petition states a valid
claim of the denial of a constitutional right and (2) the district court’s procedural
ruling in correct. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Without both
showings, no appeal is warranted.
The Antiterrorism and Effective Death Penalty Act imposes a one-year
limitation period on petitions filed under 28 U.S.C. § 2254. 28 U.S.C. §
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2244(d)(1). Relevant here, the limitation period runs from the later 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; . . . 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.
Id. § 2244(d)(1)(A), (D). The district court found that Mr. Taylor’s petition was
time barred under either of these provisions. Taylor, 2014 WL 357083, at *5.
First, it found that under § 2244(d)(1)(A), Mr. Taylor’s convictions became final
on May 17, 2011, after the OCCA concluded its direct review and after the 90-day
period for petitioning the United States Supreme Court for a writ of certiorari had
lapsed. Id. Given statutory tolling for his post-conviction proceedings—which
lasted from September 16, 2011, to August 3, 2012—Mr. Taylor had until April 5,
2013, to file his petition; he filed it on June 19, 2013, more than two months too
late. Id. at *6.
Second, the court found that Mr. Taylor did not benefit from a later accrual
date under § 2244(d)(1)(D). Id. at *5. The “factual predicate” underlying his
claim—that Mr. Cheatham perjured himself at trial—was discovered, or could
have been discovered, on May 6, 2009, the day Mr. Cheatham testified. Id. That
is, Mr. Taylor knew or should have known that Mr. Cheatham’s testimony was
false when he heard Mr. Cheatham testify to something Mr. Taylor knew to be
untrue. See id. The fact that Mr. Taylor first obtained an affidavit from Mr.
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Cheatham to this effect in August 2011 did not change this conclusion. Id.
On appeal, Mr. Taylor, through his attorney, only challenges the second of
these holdings. Aplt. Br. 7. Mr. Taylor argues that Mr. Cheatham’s affidavit was
“newly discovered evidence,” and, “even though he knew that Mr. Cheatham lied
at trial,” he needed an affidavit saying that to avail himself of post-conviction
relief. Id. at 10. He also invokes Mr. Cheatham’s “Fifth Amendment right to
remain silent,” id. at 8, and “the state rules of evidence,” id. at 10.
Our unpublished case, Craft v. Jones, 435 F. App’x 789 (10th Cir. 2011)
(unpublished), 1 is persuasive. There, the petitioner sought to avail himself of §
2244(d)(1)(D) because he had “new evidence in the form of an affidavit.” Id. at
791. The affiant claimed that he was present during the stabbing for which the
petitioner was convicted, and that the petitioner had committed the stabbing in
self-defense. Id. This court held that the “date on which the factual predicate of
the claim . . . could have been discovered” was the date of the stabbing, not the
date of the affidavit. Id. (quoting 28 U.S.C. § 2244(d)(1)(D)). If the affiant was
present at the stabbing, as he claimed, then the petitioner would have been aware
that the affiant was a witness to the event long before the affidavit. Id.The same is true here. The “factual predicate” of Mr. Taylor’s claim is that
Mr. Cheatham lied when he testified on May 6, 2009, not that he swore out an
1
This unpublished opinion is cited for its persuasive value only. 10th Cir.
R. 32.1(A).
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affidavit to that effect in August 2011. This fact was apparent much sooner than
May 17, 2011—the date on which Mr. Taylor’s convictions became final. Mr.
Taylor’s assertion that “he was dependant [sic] on Chatham’s [sic] decision to
waive his Fifth Amendment Rights and prepare an affidavit,” Aplt. Br. 8, is
without support. See United States v. Wong, 431 U.S. 174, 178 (1977) (“[T]he
Fifth Amendment privilege does not condone perjury.”); Bellis v. United States,
417 U.S. 85, 90 (1974) (“[T]he Fifth Amendment privilege is a purely personal
one.”). Mr. Taylor’s assertion that “[w]ith no affidavit, no cause would have been
available under the state law,” Aplt. Br. 9, is unavailing absent a demonstration of
what state law requires. The same goes for his assertion that he “could not have
complied with the state rules of evidence without” an affidavit, id. at 10; Mr.
Taylor leaves us guessing as to how the evidence rules barred him from pursuing
his claim absent sworn testimony from Mr. Cheatham.
We are persuaded that reasonable jurists would not debate whether Mr.
Taylor’s § 2254 petition was time barred. He has not made a substantial showing
that the district court erred by finding that “the date on which the factual
predicate of the claim . . . could have been discovered” was earlier than May 17,
2011, “the date on which the judgment became final.” 28 U.S.C. § 2244(d)(1)(A),
(D). We need not reach the district court’s alternative holding concerning the
availability of a federal right to state post-conviction review. See Taylor, 2014
WL 357083, at *8.
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We DENY a COA and DISMISS this appeal.
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