Ellis v. Martin ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 6 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL DON ELLIS,
Petitioner - Appellant, No. 98-6450
v. (W.D. Oklahoma)
TOM C. MARTIN, Warden, and (D.C. No. CV-98-625-L)
DREW EDMONDSON,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before ANDERSON , KELLY , and BRISCOE , 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)(2); 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This order and judgment is not binding precedent, except under the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. 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.
Michael Don Ellis applies for a certificate of appealability to appeal the
district court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas
corpus as time barred under the one-year statute of limitations provided in 28
U.S.C. § 2244(d). On appeal, Ellis argues that the district court should have
equitably tolled the one-year statute of limitations, and alternatively, that the
statute of limitations for federal habeas petitions (1) violates the Suspension
Clause of the United States Constitution, (2) denies him substantive due process,
and (3) denies him the rights provided under the Oklahoma Post Conviction
Relief Act. We deny a certificate of appealability, and dismiss the appeal.
BACKGROUND
In 1986, Ellis was convicted of first-degree murder in Oklahoma state court
and sentenced to life imprisonment. On June 29, 1990, the Oklahoma Court of
Criminal Appeals affirmed both his conviction and sentence. Nearly seven years
later, on April 23, 1997, Ellis sought post-conviction relief in the District Court
of Oklahoma County, which denied his request on May 5, 1997. Ellis elected not
to appeal the denial, later stating that “the outcome was obvious.” Petitioner’s
Amd. Brief to Dist. Ct. at 2. On May 5, 1998, one year after his state post-
conviction request was denied, Ellis filed this federal habeas petition.
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DISCUSSION
On April 24, 1996, Congress amended what had been “the long-standing
prior practice in habeas corpus litigation that gave a [state] prisoner virtually
unlimited amounts of time to file a habeas petition in federal court” by passing
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Hoggro v.
Boone , 150 F.3d 1223, 1225 (10th Cir. 1998). The AEDPA established a one-
year limitations period in which prisoners must file their federal habeas petitions.
See 28 U.S.C. § 2244(d)(1).
By statute, the one-year period of limitations generally begins running from
“the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). For prisoners whose convictions became final prior to the
AEDPA’s effective date, April 24, 1996, we have determined that the limitations
period commences on April 24, 1996, and expires one year later. See Hoggro ,
150 F.3d at 1225-26. Under the AEDPA, the one-year limitations period is tolled
while the defendant pursues state post-conviction relief, see 28 U.S.C.
§ 2244(d)(2), and we have held that the one-year limitations period “may be
subject to equitable tolling” as well. Miller v. Marr , 141 F.3d 976, 978 (10th
Cir.), cert. denied , 119 S. Ct. 210 (1998).
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A review of the record in this case demonstrates that Ellis’s federal habeas
petition was untimely. Because Ellis’s conviction became final prior to the
effective date of the AEDPA, his one-year period of limitations for filing a
federal habeas petition began running on April 24, 1996. On the final day of the
limitations period, April 23, 1997, Ellis filed an application for state post-
conviction relief, tolling the limitations period for the twelve days while his
application was pending in state court. When his application for post-conviction
relief was denied on May 5, the limitations period briefly resumed running until it
expired the following day, May 6, 1997. Ellis’s federal habeas petition, filed one
year later on May 5, 1998, was thus untimely.
A.
Ellis argues that the statute of limitations should be equitably tolled to
allow him to proceed on the merits of his habeas petition. 1
We held in Miller v.
Marr that the one-year statute of limitations “may be subject to equitable tolling”
when the inmate has diligently pursued his claim. See Miller v. Marr , 141 F.3d at
978; see also Davis v. Johnson , 158 F.3d 806, 811 (5th Cir. 1998) (AEDPA's
one-year limitation period will be equitably tolled only “in rare and exceptional
Ellis appears to make this argument in his Pro Se Motion to Supplement
1
the Record. Because we construe pro se pleadings liberally, see Haines v. Kerner,
404 U.S. 519, 520-21 (1972), we address his contention.
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circumstances”), cert. denied , 119 S. Ct. 1474 (1999); Miller v. New Jersey State
Dept. of Corrections , 145 F.3d 616, 618-19 (3d Cir. 1998) (equitable tolling
applies only where prisoner has diligently pursued claims and has in some
“extraordinary way” been prevented from asserting his rights). After his direct
appeal failed in 1990, Ellis waited nearly seven years until the last day of the
limitations period under the AEDPA before filing his state court request for post-
conviction relief. After that request was denied, he waited an additional year
before filing his federal habeas petition.
Ellis argued below (and appears to argue here) that the delay in filing his
petition was attributable to his reliance on his attorney’s good faith miscalculation
of the statute of limitations. To the extent this may be construed as a claim of
ineffective assistance of counsel it fails since there is no constitutional right to
counsel in collateral proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555
(1987). Further, neither Ellis’s misunderstanding nor his attorney’s mistake
excuses the delay. See Miller v. Marr , 141 F.3d at 978 (petitioner’s lack of
awareness of limitation period insufficient basis for equitable tolling); Taliani v.
Chrans , 189 F.3d 597 (7th Cir. 1999) (lawyer's mistake in calculating habeas
limitations period not a valid basis for equitable tolling). In short, it was not the
one-year limitation period that prevented Ellis from obtaining federal review of
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the legality of his conviction, but rather his own lack of diligence. Thus, the
district court properly refused to equitably toll the statute of limitations.
B.
Ellis also contends that the AEDPA’s imposition of a one-year limitations
period for filing a petition for a writ of habeas corpus is unconstitutional either
because the limitations period violates the Suspension Clause, U.S. Const. art. I,
§ 9, cl. 2, or is a violation of substantive due process. We reject these arguments.
The AEDPA, including its limitations period, is constitutional. Cf. Felker v.
Turpin , 518 U.S. 651, 664 (1996); Miller v. Marr , 141 F.3d at 978 . In particular,
the limitations period (which is not jurisdictional but is subject to equitable
tolling) does not prohibit habeas petitions but simply requires that they be filed
within a reasonable time. The one-year limitations period has the rational purpose
of encouraging the timely and efficient disposition of habeas claims. Thus,
Ellis’s constitutional claims fail.
Ellis also contends that the limitations period in the AEDPA interferes with
the Oklahoma Post Conviction Relief Act. Specifically, he argues that the
Oklahoma law has no limitations period and that federal law now, as a practical
matter, imposes one. To the extent this argument is directed to the adequacy of
state law, it is inappropriate for federal habeas review. See Estelle v. McGuire ,
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502 U.S. 62, 67 (1991). To the extent it may be interpreted as a constitutional
argument, we have disposed of that contention above.
CONCLUSION
For the reasons stated, we conclude that the district court did not err in
applying the one-year time limitation to bar Ellis’s petition. Accordingly, because
Ellis has failed to make a “substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), we DENY his application for a certificate of
appealability and DISMISS the appeal. Ellis’s pro se motion to supplement the
record is GRANTED in part; his pro se requests for an evidentiary hearing and for
court-appointed new counsel are DENIED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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