Miller v. M.B.C.C. Facility Warden , 495 F. App'x 863 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
August 20, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
REJEANIA LOUISE MILLER,
Petitioner - Appellant, No. 12-6134
v. W. D. Oklahoma
M.B.C.C. FACILITY WARDEN, (D.C. No. 5:11-CV-01500-C)
Millicent Newton Embry,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before MURPHY, EBEL, and HARTZ, Circuit Judges.
Proceeding pro se, Oklahoma state prisoner Rejeania Louise Miller seeks a
certificate of appealability (“COA”) so she can appeal the district court’s denial
of the habeas petition she filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C.
§ 2253(c)(1)(A) (providing that no appeal may be taken from a final order
disposing of a § 2254 petition unless the petitioner first obtains a COA). Miller
was convicted by an Oklahoma jury of trafficking controlled substances,
possessing proceeds derived from the sale of controlled substances, and
possession of marijuana. She was sentenced on April 8, 2005, and the Oklahoma
Court of Criminal Appeals (”OCCA”) affirmed the judgment on June 19, 2006.
Thereafter, Miller filed three motions seeking modification of her sentence. The
first was filed on June 28, 2006, the second on July 26, 2007, and the third on
November 30, 2010. She also filed a state application for post-conviction relief
on December 8, 2008. The OCCA affirmed the district court’s denial of the post-
conviction motion on May 21, 2010.
Miller filed the instant § 2254 petition on December 14, 2011. In the
petition, Miller asserted a double jeopardy claim, a claim the evidence was
insufficient to support her convictions, a claim her sentence is excessive, and
claims both trial and appellate counsel were ineffective. Respondent filed a
limited response, arguing the petition should be dismissed because it was filed
after the expiration of the one-year limitations period established by the AEDPA.
See 28 U.S.C. § 2244(d) (setting forth a one-year statute of limitations for § 2254
applications). The matter was referred to a magistrate judge who recommended
the petition be dismissed because it was untimely and Miller did not meet the
standard for equitable tolling. See Gibson v. Klinger, 232 F.3d 799, 808 (10th
Cir. 2000). Miller filed timely objections to the magistrate judge’s
recommendation and those objections were considered de novo by the district
court. The court, however, adopted the magistrate judge’s recommendation and
dismissed Miller’s § 2254 petition as untimely.
To be entitled to a COA, Miller must show “that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district
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court dismisses a habeas petition on procedural grounds, a petitioner is entitled to
a COA only if he shows both that reasonable jurists would find it debatable
whether he had stated a valid constitutional claim and debatable whether the
district court’s procedural ruling was correct). Our review of the record
demonstrates that the district court’s dismissal of Miller’s § 2254 petition as
untimely is not deserving of further proceedings or subject to a different
resolution on appeal. Because Miller did not petition for a writ of certiorari from
the United States Supreme Court, her convictions became final on September 17,
2006, ninety days after the judgment of conviction was affirmed by the OCCA.
See Fleming v. Evans, 481 F.3d 1249, 1257-58 (10th Cir. 2007). Even if Miller
was entitled to statutory tolling during the entire time her first two motions for
sentence modification were pending in state court, the one-year limitations period
expired no later than July 31, 2008, one year after the second motion was denied
by the state district court. Miller had one year from that date to file her § 2254
petition. 28 U.S.C. § 2244(d)(1)(A). The petition, however, was not filed until
December 14, 2011. The one-year period was not tolled while Miller pursued
state post-conviction relief because she did not seek any such relief until
December 8, 2008, several months after the one-year period of limitation had
expired. 1 Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).
1
Miller’s third motion for sentence modification was not filed until
November 30, 2010, more than two years after the limitations period expired.
(continued...)
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Miller asserts the commencement of the one-year limitations period should
be governed by 28 U.S.C. § 2244(d)(1)(D), not § 2244(d)(1)(A), because she was
not aware of the factual predicate of her ineffective assistance claims until she
obtained an affidavit from her trial attorney stating he believed she “did not
receive an adequate defense.” This affidavit is dated October 22, 2008.
Assuming that is the date on which the evidence contained in the affidavit could
have been discovered through the exercise of due diligence, Miller’s federal
habeas petition is still untimely. Even if the limitations period began on October
22, 2008, and was statutorily tolled from December 8, 2008 to May 21, 2010 (i.e.,
the entire time her state post-conviction application was pending in state court),
Miller’s federal habeas petition was not filed until December 14, 2011, many
months after the end of the one-year period.
We deny Miller’s request for a COA and dismiss this appeal. Miller’s
motion to proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
1
(...continued)
Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).
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