Berry v. Ray , 229 F. App'x 697 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 11, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
R ICKY LEE B ER RY ,
Petitioner-A ppellant,
v.
No. 06-6375
CHARLES RAY, W arden, (D.C. No. CIV-06-0856-HE)
(W .D. of Oklahoma)
Respondent-Appellee.
OR DER DENYING CERTIFICATE O F APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Petitioner-Appellant Ricky Lee Berry, an Oklahoma state prisoner
proceeding pro se, seeks a certificate of appealability (“COA”) to appeal the
district court’s dismissal of his petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. On January 7, 1993, a jury found M r. Berry guilty of five counts
of rape in the second degree for which he was sentenced to 5 consecutive terms of
15 years each in prison. On M arch 15, 1995, the Oklahoma Court of Criminal
Appeals dismissed his direct appeal and affirmed his convictions.
M r. Berry’s pursuit of overturning his convictions lay dormant for nearly
eleven years until, on January 5, 2006, he sought post-conviction relief in
Oklahoma state court. The state district court denied relief on February 16, 2006;
on July 5, 2006, the Oklahoma Court of Criminal Appeals affirmed the lower
court’s denial of his post-conviction relief. M r. Berry next sought post-
conviction relief from the federal courts by filing a writ of habeas corpus on
August 15, 2006, with the United States District Court for the W estern District of
Oklahoma. A magistrate judge issued a report and recommendation urging
dismissal of M r. Berry’s petition as time-barred. The district court adopted the
magistrate judge’s report and dismissed M r. Berry’s petition on December 6,
2006.
On M arch 12, 2007, petitioner filed an opening brief with this Court
asserting his bases of appeal, which we construe as an application for a COA, and
moved for leave to proceed in form a pauperis. M r. Berry raises in his opening
brief the same arguments he presented to the district court – namely, that he
received ineffective assistance of trial counsel and appellate counsel; his trial was
permeated with evidentiary errors (including failure to use rape examination
reports and other forms of physical evidence); and his confession was improperly
admitted.
t t t
In his papers filed with this Court, petitioner does not address the
timeliness of this action and offers no reason why the district court erred in
finding his appeal untimely. However, in papers he filed with the district court,
petitioner claimed that he lacked access to a law library and “adequate legal
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assistance” in the state prison facility where he was housed. See Petitioner’s Br.
at ¶¶ 4, 5 (Sept. 14, 2006). He also asserted that M assaro v. United States, 538
U.S. 500 (2003), constituted a new rule of constitutional law made retroactive to
cases on collateral review. Petitioner’s W rit of Habeas Corpus at ¶ 14 (Aug. 15,
2006). W ith these arguments in mind, we address the timeliness of Petitioner’s
action.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA ”)
provides a one-year period of limitations for habeas petitioners in state custody.
28 U.S.C. § 2244(d)(1). 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 ;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) 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; 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.M r. Berry’s judgment became final 90 days after M arch 15, 1995, the date
the Oklahoma Court of Criminal Appeals affirmed his conviction on direct
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appeal. See Sup. Ct. R. 13 (a certiorari petition to the United States Supreme
Court must be filed w ithin 90 days of entry of judgment by a state court of last
resort); see also United States v. M artin, 357 F.3d 1198, 1200 (10th Cir. 2004)
(“If a prisoner does not file a petition for writ of certiorari with the United States
Supreme Court after his direct appeal, the one-year limitation period begins to run
when the time for filing a certiorari petition expires.”). Because this date
occurred before the effective date of AEDPA , M r. Berry had until April 24, 1997,
in which to file his petition; he missed this deadline by over nine years. See
Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998) (“[F]or prisoners whose
convictions became final before A pril 24, 1996 [the effective date of A EDPA],
the one-year statute of limitation does not begin to run until A pril 24, 1996.”).
M r. Berry’s habeas petition asserts that his one-year clock should start
running from April 23, 2003, the date the Supreme Court decided M assaro and
allegedly recognized a constitutional right made retroactively applicable to cases
on collateral review. W e are constrained to disagree. This Court has already
concluded that M assaro did not purport to recognize a constitutional right hitherto
unrecognized but, instead, simply provided that the failure to raise a claim of
ineffective assistance of counsel on direct appeal does not cause a procedural
default preventing review of the issue on collateral appeal. See Ayala v.
Workman, 116 Fed. Appx. 989, 992 (10th Cir. Dec. 2, 2004) (unpub.) (“M assaro
announces a federal procedural rule, not a ‘newly recognized’ constitutional
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right.”); see also M assaro, 538 U.S. at 503-04; Gomez v. Jaimet, 350 F.3d 673,
678 (7th Cir. 2003) (“M assaro was not a constitutional decision.”); Sweet v.
Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (same).
M r. Berry’s appeal to tolling principles is also unavailing. Section
2244(d)(2) provides that the limitations period is tolled while “a properly filed
application for State post-conviction or other collateral review . . . is pending.”
However, under our precedents this statutory tolling provision is inapplicable to
M r. Berry because his application for state post-conviction relief was filed after
the limitations period under Section 2244(d) had expired. See Clark v. Oklahom a,
468 F.3d 711, 714 (10th Cir. 2006) (“Only state petitions for post-conviction
relief filed within the one year allowed by AEDPA will toll the statute of
limitations.”); see also Hansell v. LeM aster, 182 F.3d 931 (table), 1999 W L
258335, at *2 (10th Cir. 1999) (same).
Equitable tolling doctrine is no more helpful to M r. Berry. He argues that
we should suspend normal application of the statute of limitations because his
prison lacks a law library and he received no adequate appellate counsel. But w e
have already expressly rejected arguments along these lines. In M arsh v. Soares,
we held that “‘ignorance of the law , even for an incarcerated pro se petitioner,
generally does not excuse prompt filing.’” 223 F.3d 1217, 1220 (10th Cir. 2000)
(quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)). M r. Berry offers
us no reason to devise an exception to the general rule in his case. In fact, M r.
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Berry claims he has been housed in the same prison with the same (inadequate)
legal facilities since 1996. He was, we know, able to marshal the resources to file
post-conviction relief in state and federal court in 2006 but offers us no
explanation as to w hat changed in the decade between 1996 and 2006 and, thus,
why he could not have filed his petition sooner. See M iller v. M arr, 141 F.3d
976, 978 (10th Cir. 1998) (“[Petitioner] has provided no specificity regarding the
alleged lack of access and the steps he took to diligently pursue his federal
[habeas] claims. It is not enough to say that the [state prison] facility lacked all
relevant statutes and case law . . . . It is apparent that [petitioner] simply did not
know about the limitation in the AEDPA until it was too late.” (citations
omitted)).
Because we find “no jurists of reason would find it debatable whether the
district court was correct in its procedural ruling,” w e deny M r. Berry’s
application for a COA. See Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (where
a district court dismisses a habeas petition on procedural grounds, “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 reasons would find it debatable whether the district court
was correct in its procedural ruling” (emphasis added)).
t t t
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W e grant M r. Berry’s motion to proceed in form a pauperis, deny his
application for a COA, and dismiss his appeal.
ENTERED FOR THE COURT
Neil M . Gorsuch
Circuit Judge
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