Watts v. Jones , 335 F. App'x 718 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
June 18, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CANTRELL E. WATTS,
Petitioner - Appellant,
No. 09-7024
v. (D.C. No. 08-CV-00249-JHP-KEW)
(E.D. Okla.)
JUSTIN JONES, Director of
Department of Corrections,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
Petitioner-Appellant Cantrell E. Watts, a state prisoner appearing pro se,
seeks a certificate of appealability (“COA”) so that he may appeal from the
district court’s denial of his habeas petition filed pursuant to 28 U.S.C. § 2254.
In his petition, Mr. Watts raises claims of ineffective assistance of counsel and
violations of his rights to a speedy trial, due process, and equal protection. The
district court held that the petition was untimely and that Mr. Watts was not
entitled to equitable tolling. Watts v. Jones, No. CIV-08-249-JHP-KEW, 2009
WL 437494, at *3-4 (E.D. Okla. Feb. 20, 2009). Because Mr. Watts has failed to
demonstrate that it is reasonably debatable whether the district court’s procedural
ruling dismissing his petition is correct, see Slack v. McDaniel, 529 U.S. 473,
483-84 (2000), we deny a COA and dismiss the appeal.
Mr. Watts was convicted of indecent exposure on March 3, 2006, in
Oklahoma state district court. 1 R. at 16. On June 2, 2006, he filed a Petition in
Error in the Oklahoma Court of Criminal Appeals (“OCCA”) one day after the
statutory deadline expired. 1 1 R. at 25; see also Okla. Ct. Crim. App. R. 3.1
(ninety-day deadline from date of judgment). The OCCA dismissed Mr. Watts’s
appeal as untimely on September 8, 2006, instructing Mr. Watts, if he wished to
seek further relief, to “file an application for post-conviction relief in the District
Court requesting an appeal out of time.” 1 R. at 47-48. Mr. Watts received
notice of the dismissal on September 11, 2006. 1 R. at 105, 123. As a result, Mr.
Watts had one year from that date in which to file his federal habeas petition, 28
U.S.C. § 2244(d)(1)(A), but the one-year period could be tolled during the
pendency of a properly filed state post-conviction motion, id. § 2244(d)(2).
On September 14, 2006, Petitioner attempted to file an application for state
post-conviction relief, 1 R. at 106, 124; however, he did not file it in the trial
court as required under Okla. Ct. Crim. App. R. 2.1(E). See 1 R. at 106, 124. In
1
As a result of Mr. Watts’s attorney’s failure to file within the statutory
deadline, Mr. Watts requested and appears to have been granted permission to file
an appeal out of time. Pet. Br. Att. (State v. Watts, No. CF-2005-346 (Pittsburg
County Dist. Ct. Mar. 18, 2009)). We have previously held that a state court’s
grant of leave to appeal out of time does not result in tolling of the one-year
statutory limitation on filing for federal habeas relief. Gibson v. Klinger, 232
F.3d 799, 804 (10th Cir. 2000); see also 28 U.S.C. § 2244(d)(1).
-2-
addition, Mr. Watts appears to have filed motions for state post-conviction relief
on June 27, 2008, and July 17, 2008. 1 R. at 103, 127, 129. These two additional
applications clearly fall beyond the September 11, 2007, expiration of the 28
U.S.C. § 2244(d)(1)(A) limitations period, and thus do not require any statutory
tolling. It was not until July 23, 2008, that Mr. Watts filed his federal petition,
nearly a year after the expiration of the limitations period. I R. at 6. This
passage of time well exceeds the applicable one-year statute of limitations, and
thus the district court was correct in concluding that Mr. Watts’s petition was
untimely. 1 R. at 211.
While Mr. Watts does not expressly request equitable tolling, he blames his
trial attorney for his current predicament. Furthermore, in his habeas petition, he
claims that he suffers from a medical condition that makes it difficult for him to
concentrate, that he lacks a complete law library, and that he requires legal
assistance with this petition. 1 R. at 12. We have limited equitable tolling of the
one-year limitations period to “rare and exceptional” circumstances. Gibson v.
Klinger, 232 F.3d 799, 808 (10th Cir. 2000). Equitable tolling is only
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.
Moreover, a petitioner must diligently pursue his federal habeas
claims; a claim of insufficient access to relevant law . . . is not
enough to support equitable tolling.
-3-
Id. (internal citations omitted). Mr. Watts has not shown that any of these
circumstances, or any similar circumstances, exist.
Although Mr. Watts attempted to file a state post-conviction motion on
September 14, 2006, in the wrong court, this motion is not considered “properly
filed” as required by 28 U.S.C. § 2244(d)(2). To satisfy the “properly filed”
requirement of 28 U.S.C. § 2244(d)(2), a petitioner must comply with state
procedural requirements. See Habteselassie v. Novak, 209 F.3d 1208, 1210-11
(10th Cir. 2000). The OCCA and the Oklahoma rules are clear: Mr. Watts was
required to file an application for post-conviction relief in the state district court.
His failure to do so removes him from that rare category of cases warranting
equitable tolling discussed in Gibson. Accordingly, because Mr. Watts has not
alleged facts that indicate equitable tolling is appropriate, no reasonable jurist
could debate the district court’s conclusion that Mr. Watts was not entitled to
such tolling. Mr. Watts’s action was untimely.
We DENY the application for a COA, DENY all pending motions, and
DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-4-