Tillman v. Bigelow , 672 F. App'x 803 ( 2016 )


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  •                                                                                  FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS                     November 30, 2016
    Elisabeth A. Shumaker
    FOR THE TENTH CIRCUIT                          Clerk of Court
    _________________________________
    ELROY TILLMAN,
    Petitioner - Appellant,
    No. 16-4139
    v.                                                   (D.C. No. 2:13-CV-00201-DB)
    (D. Utah)
    ALFRED BIGELOW,
    Respondent - Appellee.
    _________________________________
    ORDER DENYING CERTIFICATE OF APPEALABILITY
    ______________________________
    Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
    _________________________________
    Defendant Elroy Tillman, a state prisoner proceeding pro se, applied for relief
    under 28 U.S.C. § 2254 more than one year after his state-court conviction and sentence
    became final. The United States District Court for the District of Utah dismissed his
    application as untimely. Defendant now requests a certificate of appealability (COA)
    from this court to appeal the dismissal. See 28 U.S.C. § 2253(c)(1)(A). We deny a COA
    and dismiss the appeal because no reasonable jurist could debate that the district court
    erred in its denial of his claim.
    I.     BACKGROUND
    In 1983 Defendant was convicted of first-degree murder and sentenced to death.
    The Utah Supreme Court initially affirmed the conviction and death sentence. See State
    v. Tillman, 
    750 P.2d 546
    , 577 (Utah 1987). Over the ensuing years, Defendant repeatedly
    sought postconviction relief from state and federal courts without success. But in 2001 a
    state district court granted a petition for postconviction relief, vacating Defendant’s death
    sentence but not his conviction. The Utah Supreme Court affirmed. Defendant was
    resentenced to life imprisonment on December 23, 2005. See Tillman v. Bigelow, 484 F.
    App’x. 286, 287 (10th Cir. 2012). He did not appeal his resentencing.
    In 2013 Defendant initiated his current § 2254 application. The district court
    found it to be a second-or-successive application and dismissed it for lack of
    authorization from this court. But when Defendant sought authorization from this court,
    we dismissed the request as unnecessary because of his 2005 resentencing. We explained
    that Supreme Court precedent treated “the existence of a new judgment [as] dispositive”
    in determining whether a § 2254 application is second or successive. Order, R. at 228
    (quoting Magwood v. Patterson, 
    561 U.S. 320
    , 338 (2010)). The district court
    accordingly vacated its dismissal order and directed the state to file an answer to
    Defendant’s application. In a March 2016 order the district court dismissed the
    application as untimely. Defendant now seeks a COA from us.
    II.    DISCUSSION
    A COA will issue “only if the applicant has made a substantial showing of the
    denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
    demonstration that . . . includes showing that reasonable jurists could debate whether (or,
    for that matter, agree that) the petition should have been resolved in a different manner or
    that the issues presented were adequate to deserve encouragement to proceed further.”
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    Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000) (internal quotation marks omitted). If the
    application was denied on procedural grounds, the applicant faces a double hurdle. Not
    only must the applicant make a substantial showing of the denial of a constitutional right,
    but he must also show “that jurists of reason would find it debatable whether the district
    court was correct in its procedural ruling.” 
    Id. “Where a
    plain procedural bar is present
    and the district court is correct to invoke it to dispose of the case, a reasonable jurist
    could not conclude either that the district court erred in dismissing the petition or that the
    petitioner should be allowed to proceed further.” 
    Id. The Antiterrorism
    and Effective Death Penalty Act (AEDPA) imposes a one-year
    time limit for filing a § 2254 application. The relevant language follows:
    (1) A 1-year period of limitation shall apply to an application for a writ of
    habeas corpus by a person in custody pursuant to the judgment of a State
    court. The limitation period shall run from the latest 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;
    ...
    (2) The time during which a properly filed application for State post-
    conviction or other collateral review with respect to the pertinent judgment
    or claim is pending shall not be counted toward any period of limitation
    under this subsection.
    28 U.S.C. § 2244(d).
    Defendant’s § 2254 application was clearly untimely. Because he failed to appeal
    his resentencing, his judgment became final on January 23, 2005—30 days after his
    resentencing. See Utah R. App. P. 4(a) (notice of appeal shall be filed “within 30 days
    after the date of entry of the judgment or order appealed from”). Absent statutory or
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    equitable tolling, the last day to file his application for federal habeas relief was January
    23, 2006, long before he filed his § 2254 application on March 29, 2013.
    Defendant is not entitled to statutory tolling. Although the one-year limitation
    period may be tolled while a defendant seeks state postconviction relief, the first
    postconviction petition filed by Defendant after his resentencing was in December 2009,
    well after the limitation period had expired. See Fisher v. Gibson, 
    262 F.3d 1135
    , 1142‒
    43 (10th Cir. 2001) (denying statutory tolling for state postconviction petition filed after
    limitation period).
    And we agree with the district court that Defendant is ineligible for equitable
    tolling. Actual innocence, which Defendant invokes here, can justify equitable tolling.
    See Schlup v. Delo, 
    513 U.S. 298
    , 315 (1995) (claim of innocence may serve as “a
    gateway through which a habeas petitioner must pass to have his otherwise barred
    constitutional claim considered on the merits” (internal quotation marks omitted));
    Gibson v. Klinger, 
    232 F.3d 799
    , 808 (10th Cir. 2000). But “[t]o make a credible
    showing of actual innocence, a petitioner must support his allegations of constitutional
    error with new reliable evidence—whether it be exculpatory scientific evidence,
    trustworthy eyewitness accounts, or critical physical evidence—that was not presented at
    trial. This new evidence must be sufficient to show that it is more likely than not that no
    reasonable juror would have convicted the petitioner in the light of the new evidence.”
    Frost v. Pryor, 
    749 F.3d 1212
    , 1231‒32 (10th Cir. 2014) (citations omitted) (internal
    quotation marks omitted). Defendant has failed to provide any new evidence, before this
    court or below.
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    Defendant’s final argument is that our order sending the case to the district court
    required that court to hear the merits of his claim. But the order did not address the
    merits of his petition or whether it was procedurally barred. It merely stated that
    Defendant did not need permission from our court to proceed.
    Defendant fails to identify any other basis for equitable tolling. Hence, no
    reasonable jurist could debate whether Defendant’s § 2254 motion ought to have been
    granted.
    III.   CONCLUSION
    We DENY Defendant’s request for a COA and DISMISS the appeal.
    Entered for the Court
    Harris L Hartz
    Circuit Judge
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