Austin v. Saffle , 10 F. App'x 695 ( 2001 )


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  •                                                                          F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAY 2 2001
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    JOHNNY AUSTIN,
    Petitioner-Appellant,
    No. 00-6453
    v.                                                 (W. District of Oklahoma)
    (D.C. No. 00-CV-1302-M)
    JAMES L. SAFFLE, Warden,
    Respondent-Appellee.
    ORDER AND JUDGMENT *
    Before HENRY, BRISCOE, and MURPHY, 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 matter is before the court on Johnny Austin’s   pro se request for a
    certificate of appealability (“COA”). Austin seeks a COA so he can appeal the
    *
    This order and judgment is not binding precedent, except under the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.
    district court’s dismissal of his 
    28 U.S.C. § 2254
     petition.   See 
    28 U.S.C. § 2253
    (c)(1)(A) (providing that no appeal may be taken from a final order
    disposing of a § 2254 petition unless the petitioner first obtains a COA). Austin
    also seeks to proceed in forma pauperis on appeal. Because Austin has not made
    a substantial showing of the denial of a constitutional right, he is not entitled to a
    COA and his appeal is dismissed.       See id. § 2253(c)(2).
    Austin was convicted in Oklahoma state court of manslaughter in the first
    degree and child beating. It is clear from the record that Austin’s conviction
    became final before April 24, 1996. Austin filed an application for post-
    conviction relief with the state district court on December 26, 1995. The state
    district court denied the application and the Oklahoma Court of Criminal Appeals
    affirmed the denial on May 13, 1996. Austin did not file the instant § 2254
    habeas petition until July 26, 2000. The petition was referred to a magistrate
    judge for initial proceedings pursuant to 
    28 U.S.C. § 636
    (b)(1)(B).
    On September 21, 2000, Respondent filed a motion to dismiss Austin’s
    habeas petition and a brief in support thereof. Because Austin’s Oklahoma state
    conviction became final prior to the enactment of the Antiterrorism and Effective
    Death Penalty Act ("AEDPA"), Respondent argued that Austin’s § 2254 petition
    should have been filed prior to April 24, 1997.      See Adams v. LeMaster , 
    223 F.3d 1177
    , 1180 (10th Cir. 2000) (reiterating that a state prisoner generally has one
    -2-
    year from the effective date of the AEDPA to file a § 2254 habeas petition).
    Respondent conceded that the one-year limitations period was tolled for a period
    of nineteen days while Austin’s application for state post-conviction relief was
    pending before the Oklahoma Court of Criminal Appeals, but argued that the §
    2254 petition should, therefore, have been filed no later than May 12, 1997.     See
    Hoggro v. Boone , 
    150 F.3d 1223
    , 1226 (10th Cir. 1998) (holding that one-year
    limitations period is tolled during the period of time petitioner spends properly
    pursuing state post-conviction relief). Respondent then argued that Austin’s
    petition was time-barred because it was not filed until July 26, 2000.
    Austin filed a response to the motion to dismiss. In that response, he did
    not assert that his petition was timely, but argued that the one-year AEDPA
    statute of limitations should be equitably tolled because he had no access to
    necessary legal materials until he was transferred to the Lawton Correctional
    Facility in December 1999. Austin also made an unsupported allegation that he
    was actually innocent of the crimes to which he pleaded guilty.
    In her report and recommendation, the magistrate judge relied, in part, on
    this court’s decision in   Miller v. Marr , 
    141 F.3d 976
    , 978 (10th Cir. 1998), to
    conclude that Austin had failed to identify any circumstances that would support
    an equitable tolling of the limitations period. The report and recommendation
    also noted that Austin’s § 2254 petition was filed more than seven months after
    -3-
    he obtained access to the legal materials at the Lawton Correctional Facility. The
    magistrate concluded that Austin had not diligently pursued his federal claims
    and, therefore, was not entitled to equitable tolling.   See Marsh v. Soares , 
    223 F.3d 1217
    , 1220 (10th Cir. 2000) (holding equitable tolling “is only available
    when an inmate diligently pursues his claims and demonstrates that the failure to
    timely filed was caused by extraordinary circumstances beyond his control”).
    Austin filed timely objections to the report and recommendation. Although
    the district court considered Austin’s objections, the court adopted the report and
    recommendation and dismissed Austin’s § 2254 petition.
    In his application for a COA, Austin does not argue that the magistrate
    judge miscalculated the one-year period. Instead, Austin renews the argument
    made in his objection to the report and recommendation that his inability to
    access legal materials supports the tolling of the one-year limitations period.
    Before he is entitled to a COA, Austin must make a “substantial showing
    of the denial of a constitutional right.” 
    28 U.S.C. § 2253
    (c)(2). Austin may
    make this showing by demonstrating the issues raised are debatable among
    jurists, a court could resolve the issues differently, or that the questions presented
    deserve further proceedings.     See Slack v. McDaniel , 
    529 U.S. 473
    , 483-84
    (2000). This court has reviewed Austin’s application for a COA, his appellate
    brief, the magistrate judge’s report and recommendation, the district court’s order
    -4-
    dated December 8, 2000, and the entire record on appeal. That review clearly
    demonstrates the district court’s dismissal of Austin’s § 2254 petition as untimely
    is not deserving of further proceedings or subject to a different resolution on
    appeal. Accordingly, this court     denies Austin’s request for a COA for
    substantially those reasons set forth in the district court’s order and the
    magistrate’s report and recommendation and        dismisses this appeal. Austin’s
    request to proceed on appeal      in forma pauperis is granted .
    ENTERED FOR THE COURT:
    Michael R. Murphy
    Circuit Judge
    -5-
    

Document Info

Docket Number: 00-6453

Citation Numbers: 10 F. App'x 695

Judges: Briscoe, Henry, Murphy

Filed Date: 5/2/2001

Precedential Status: Non-Precedential

Modified Date: 8/3/2023