Craig v. McCollum , 590 F. App'x 723 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 22, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
BENNERD JAMES CRAIG,
Petitioner - Appellant,
v. No.14-5068
(D.C. No. 4:13-CV-00701-GFK-PJC)
TRACY McCOLLUM, (N.D. of Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
Bennerd Craig is an Oklahoma state prisoner proceeding pro se. 1 He
requests a Certificate of Appealability (COA) to challenge the district court’s
dismissal of his 28 U.S.C. § 2254 petition as time-barred under 28 U.S.C.
§ 2244(d). We agree with the district court that Craig fails to meet § 2244(d)’s
timeliness requirements. We also agree that neither statutory nor equitable tolling
allows him to overcome the timeliness bar. Exercising jurisdiction under
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Craig is proceeding pro se, we review his petition liberally. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
28 U.S.C. §§ 2253(a) and 1291, we DENY the COA application and DISMISS
this appeal.
I. Background
Craig was convicted in April 2009 after pleading guilty to First Degree
Burglary and Obstructing an Officer and sentenced to fifteen years in prison.
Craig did not file a motion to withdraw his guilty pleas or perfect a certiorari
appeal with the Oklahoma Court of Criminal Appeals (OCCA).
Craig’s first court filing after sentencing was not until September 2010,
when the state district court received Craig’s motion for sentence modification,
for which he was ineligible. In May 2012, Craig filed a separate application for
post-conviction relief in state district court, which that court denied. The OCCA
affirmed.
Craig filed a habeas petition in the Northern District of Oklahoma in
October 2013. He raised three challenges to the validity of his conviction: (1)
that the trial court erroneously accepted his guilty plea to First Degree Burglary
without a sufficient factual basis; (2) that he is factually innocent of First Degree
Burglary; and (3) that he received ineffective assistance of counsel. 2 In May
2
Craig asserts that he placed his petition in the prison mailing system on
October 15, 2013, so the petition may be treated as filed on October 15, 2013.
See Marsh v. Soares, 223 F.3d 1217, 1218 & n.1 (10th Cir. 2000). But this has no
effect on the untimeliness of Craig’s claims.
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2014, the district court dismissed the petition with prejudice as untimely
(declining to reach the merits), and denied a COA.
II. Analysis
The Antiterrorism and Effective Death Penalty Act (AEDPA) conditions a
state prisoner’s right to appeal a denial of habeas relief on a grant of a COA,
which requires the applicant to demonstrate a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(1)(A), (c)(2). When the district
court denies a habeas petition on procedural grounds, we issue a COA only when
the prisoner shows 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 reason would find it debatable whether the district court was correct in
its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Craig
cannot make that showing.
AEDPA provides a one-year limitations period for habeas corpus petitions
filed by state prisoners. See 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides
four separate potential dates from which to begin counting, but only one is
implicated here—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).
Because Craig neither timely filed a motion to withdraw his guilty pleas
nor perfected a timely certiorari appeal with the OCCA, his conviction became
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final under Oklahoma law on April 16, 2009, ten days after his sentence was
pronounced on April 6. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir.
2001) (noting applicable Oklahoma law). Thus, any federal habeas petition filed
after April 19, 2010 is untimely—and this petition was not filed until October
2013.
Consequently, we will only consider Craig’s petition if the limitations
period was either statutorily or equitably tolled. We address each in turn.
First, statutory tolling only tolls the limitations period during the pendency
of any “properly filed application for State post-conviction or other collateral
review.” 28 U.S.C. § 2244(d)(2). But “[o]nly state petitions for post-conviction
relief filed within the one year allowed by AEDPA” toll the statute of limitations.
Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006). Craig filed no petition
for any state relief before April 19, 2010, so statutory tolling is inapplicable.
Second, to receive equitable tolling, a petitioner must generally show that
“he has been pursuing his rights diligently” and that “some extraordinary
circumstance stood in his way” that prevented timely filing. Lawrence v. Florida,
549 U.S. 327, 336 (2007). It is a “rare remedy to be applied in unusual
circumstances,” Wallace v. Kato, 549 U.S. 384, 396 (2007), and a petitioner must
show “specific facts to support his claim of extraordinary circumstances and due
diligence.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008).
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Craig’s COA application presents no arguments or facts showing due
diligence or extraordinary circumstances. Instead, he asserts an entitlement to
“equitable tolling on the grounds of actual innocence.” Aplt. Br. 3.
As a general matter, a prisoner seeking equitable tolling on actual
innocence grounds need not demonstrate a diligent pursuit. See Lopez v. Trani,
628 F.3d 1228, 1230–31 (10th Cir. 2010). But equitable tolling on these grounds
is still “rare” and only appropriate “in the extraordinary case.” Id. In fact,
equitable tolling on these grounds requires that “it is more likely than not that no
reasonable juror would have convicted [petitioner] in light of” new evidence, and
“unexplained delay” still bears on whether a petitioner has met his burden. See
McQuiggin v. Perkins, 133 S. Ct. 1924, 1935 (2013). Finally, an innocence
argument must be a “factual innocence” argument—not a “legal innocence”
argument—to justify equitable tolling. United States v. Gabaldon, 522 F.3d 1121,
1124 n.2 (10th Cir. 2008).
Because Craig “failed to make any argument or cite any authority to
support” any entitlement to equitable tolling on the grounds of extraordinary
circumstances and due diligence, he has waived those arguments. See Scott v.
Franklin, 122 F. App’x 980, 983 (10th Cir. 2005) (citing United States v.
Hardwell, 80 F.3d 1471, 1492 (10th Cir. 1996)). We decline to “manufacture”
them for him. See Craven v. Univ. of Colo. Hosp. Auth., 260 F.3d 1218, 1226
(10th Cir. 2001). Our liberal construction of pro se petitions does not exempt
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them from the rules of procedure binding the petitions of other litigants. See
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Craig’s conclusory allusion to the diligence arguments he made before the district
court cannot prevent abandonment. See Ariz. Pub. Serv. Co. v. EPA, 562 F.3d
1116, 1130 (10th Cir. 2009) (“We need not address unsupported, conclusory
arguments.”). 3
Craig’s actual innocence argument also fails. Citing Jackson v. Virginia,
443 U.S. 307 (1979), Craig alleges a “failure to establish factual basis for every
element of the crime.” Aplt. Br. 2. But Jackson was a legal insufficiency case,
see Jackson, 443 U.S. at 309–10, and Craig makes a legal insufficiency claim. It
is well established that “[a]ctual innocence means factual innocence, not mere
legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998); see also
Gabaldon, 522 F.3d at 1124 n.2. Consequently, Craig is not entitled to equitable
tolling on actual innocence grounds.
3
Even if Craig had not abandoned his claims for equitable tolling based on
extraordinary circumstances and due diligence, the district court properly rejected
those claims. Most significantly, Craig claimed he first became aware of the
limitations period during May 2012. But “ignorance of the law, even for an
incarcerated pro se petitioner, generally does not excuse prompt filing.” Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). And none of his arguments
alleging lack of access to legal materials provide the “specific facts” needed to
make this showing. See Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008).
The district court found that “nothing in the record suggests that Craig took any
action to challenge his convictions during the one-year limitations period.” R.,
Vol. I at 125. That finding is not clearly erroneous.
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III. Conclusion
Because jurists of reason would not debate the district court’s conclusion
that Craig’s petition was time-barred, we DENY his COA application and
DISMISS this matter.
ENTERED FOR THE COURT,
Timothy M. Tymkovich
Circuit Judge
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