Ameen v. Clayton ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 29, 2020
TENTH CIRCUIT
Christopher M. Wolpert
Clerk of Court
TODD OLIVER AMEEN,
Petitioner - Appellant,
No. 20-6084
(D.C. No. 5:19-CV-00485-PRW)
v.
(W.D. Okla.)
DEON CLAYTON, Interim Warden,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
This matter is before the court on Todd Ameen’s request for a certificate of
appealability (“COA”) and for permission to proceed on appeal in forma pauperis.
Ameen seeks a COA so he can appeal the dismissal, on timeliness grounds, of his
28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no
appeal may be taken from a final order denying habeas corpus relief unless the
petitioner first obtains a COA); id. § 2244(d) (setting out a one-year limitations
period as to § 2254 habeas corpus petitions). Because Ameen has not “made a
substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), this
court denies his request for a COA and dismisses this matter.
On November 17, 2016, Ameen pleaded guilty, in Oklahoma state court, to
one count of first degree burglary. Ameen’s conviction became final ten days
later, on November 27, 2016, because Ameen did not seek to timely withdraw his
plea or seek a direct appeal to the Oklahoma Court of Criminal Appeals. See
Okla. Stat. tit. 22, Ch.18 App. Rule 4.2; Okla. Stat. tit. 22, § 1051. Pursuant to
28 U.S.C. § 2244(d)(1), the § 2244 limitations period for Ameen to file a § 2254
petition began to run on November 28, 2016, and would normally have expired on
November 28, 2017. See Harris v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th Cir.
2011). In this case, however, the district court assumed, without deciding, that
Ameen was entitled to ninety-four days of statutory tolling, pursuant to 28 U.S.C.
§ 2244(d)(2), while Ameen had pending in state court a motion for judicial review
under Okla. Stat. tit. 22, § 982a. See Randall v. Allbaugh, 662 F. App’x 571, 573
n.3 (10th Cir. 2016) (noting that whether such a motion entitles a petitioner to
statutory tolling is an unresolved question in this circuit); Doby v. Dowling, 632
F. App’x 485, 488 (10th Cir. 2015) (“We can assume that [petitioner’s] limitation
period was tolled while this [§ 982a] motion [for judicial review] was
pending . . . .”). Thus, the limitations period for Ameen to file his § 2254 habeas
petition expired on March 2, 2018. 1
1
Like the district court, this court sees no need to resolve this question.
Ameen’s § 2254 petition is untimely even if we assume his Oklahoma state § 982a
(continued...)
-2-
Ameen filed the instant § 2254 habeas petition on May 28, 2019, almost
fifteen months after the expiration of the limitations period set out in § 2244(d).
The matter was referred to a magistrate judge for initial proceedings. 28 U.S.C.
§ 636(b)(1). In a thorough and well-reasoned Report and Recommendation, the
magistrate judge concluded as follows: (1) Ameen’s attempt to invoke actual
innocence was unavailing because the assertion was really a claim of legal
innocence, rather than factual innocence; (2) Ameen was not entitled to equitable
tolling because, inter alia, he failed to demonstrate he diligently pursued his
rights, see Lawrence v. Florida, 549 U.S. 327, 336 (2007); and (3) the delayed
accrual provision set out in § 2244(d)(1)(D) was not applicable because Ameen
was well aware of the factual basis of his substantive habeas claim at the time he
committed the burglary. In a lengthy order that considered a whole series of
objections and supplements filed by Ameen, the district court adopted the
magistrate judge’s Report and Recommendation and dismissed Ameen’s § 2254
habeas petition as untimely.
Ameen seeks a COA so he can appeal the district court’s dismissal of his
§ 2254 petition. The granting of a COA is a jurisdictional prerequisite to
Ameen’s appeal from the denial of his § 2254 petition. Miller-El v. Cockrell, 537
1
(...continued)
motion entitles him to ninety-four days of statutory tolling.
-3-
U.S. 322, 336 (2003). To be entitled to a COA, Ameen must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is,
he must demonstrate “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.” Id.
(quotations omitted). When a district court dismisses a § 2254 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. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). In evaluating
whether Ameen has satisfied his burden, this court undertakes “a preliminary,
though not definitive, consideration of the [legal] framework” applicable to each
of his claims. Miller-El, 537 U.S. at 338. Although Ameen need not demonstrate
his appeal will succeed to be entitled to a COA, he must “prove something more
than the absence of frivolity or the existence of mere good faith.” Id.
Having undertaken a review of Ameen’s appellate filings, the magistrate
judge’s Report and Recommendation, the district court’s order, and the entire
record before this court pursuant to the framework set out by the Supreme Court
in Miller-El, we conclude Ameen is not entitled to a COA. The district court’s
resolution of Ameen’s petition is not reasonably subject to debate. Indeed, in
-4-
denying Ameen’s request for a COA, this court sees no need to recapitulate the
cogent analyses set out in both the magistrate judge’s Report and
Recommendation and the district court’s order. Accordingly, this court DENIES
Ameen’s request for a COA and DISMISSES this matter. Ameen’s request to
proceed on appeal in forma pauperis is GRANTED. All other pending motions,
specifically including Ameen’s requests for an evidentiary hearing and for
appointment of counsel are hereby DENIED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-5-