Williams v. Miller , 264 F. App'x 724 ( 2008 )


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  •                                                                         FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS February 8, 2008
    Elisabeth A. Shumaker
    TENTH CIRCUIT                       Clerk of Court
    DANNY JOSEPH WILLIAMS,
    Petitioner-Appellant,
    No. 07-6228
    v.                                               (D.C. No. CIV-07-467-R)
    (W.D. Okla.)
    DAVID C. MILLER,
    Respondent-Appellee.
    ORDER DENYING CERTIFICATE
    OF APPEALABILITY
    Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
    Danny Joseph Williams, a state prisoner proceeding pro se, seeks a
    certificate of appealability (“COA”) to appeal the district court’s denial of his 
    28 U.S.C. § 2254
     habeas petition. For substantially the same reasons set forth by the
    district court, we DENY his request for a COA and DISMISS.
    On April 23, 1992, Williams was convicted in Oklahoma state court on ten
    felony counts. The Oklahoma Court of Criminal Appeals affirmed his conviction
    on December 19, 1994, and Williams did not seek certiorari with the United
    States Supreme Court. On July 21, 2004, Williams applied for state
    post-conviction relief. His application was denied, and Williams’ subsequent
    appeal was dismissed as untimely. Williams then filed several other unsuccessful
    applications for collateral relief in state court.
    Williams brought this petition for habeas relief on April 5, 2007. A
    magistrate judge found that the petition was time barred under the Antiterrorism
    and Effective Death Penalty Act (“AEDPA”) and that no basis existed for
    equitably tolling AEDPA’s one-year time limitation. Over Williams’ objections,
    the district court adopted the magistrate’s recommendation and dismissed
    Williams’ petition. The district court then construed Williams’ subsequent notice
    of appeal as a motion for a COA and denied that motion. 1
    Pursuant to 
    28 U.S.C. § 2244
    (d)(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.” In general, the limitations period
    begins to run from the date on which the state judgment becomes final for
    purposes of direct review. See § 2244(d)(1)(A). However, in the case of
    petitioners whose convictions became final prior to April 24, 1996, AEDPA’s
    effective date, we recognize a one-year grace period beginning on April 24, 1996,
    1
    Because the district court denied Williams a COA, he may not appeal the
    district court’s decision absent a grant of COA by this court. 
    28 U.S.C. § 2253
    (c)(1)(A). A COA may be issued “only if the applicant has made a
    substantial showing of the denial of a constitutional right.” § 2253(c)(2). This
    requires Williams to show “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.” Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000) (quotations
    omitted).
    -2-
    and ending on April 23, 1997. See Hoggro v. Boone, 
    150 F.3d 1223
    , 1225 (10th
    Cir. 1998).
    Williams’ conviction became final for purposes of § 2244(d) on or about
    March 19, 1995, after the ninety-day period for filing a petition for a writ of
    certiorari in the United States Supreme Court had lapsed. See Rhine v. Boone,
    
    182 F.3d 1153
    , 1155 (10th Cir. 1999); Sup. Ct. R. 13(1). Because his conviction
    became final prior to AEDPA’s effective date, he had until April 23, 1997, to file
    a habeas petition. Williams’ habeas petition, filed on April 5, 2007, is therefore
    untimely by almost ten years. 2
    Williams argues that despite the untimeliness of his petition, the one-year
    limitations period should be equitably tolled. We have recognized that equitable
    tolling is “only available when an inmate diligently pursues his claims and
    demonstrates that the failure to timely file was caused by extraordinary
    circumstances beyond his control.” Marsh v. Soares, 
    223 F.3d 1217
    , 1220 (10th
    Cir. 2000); see also Miller v. Marr, 
    141 F.3d 976
    , 978 (10th Cir. 1998). Williams
    cites prison lockdowns, inadequate access to the prison law library, the
    2
    Section 2244(d)(2), which tolls the limitations period for the time during
    which a properly filed application for state post-conviction or collateral review is
    pending, applies to the one-year grace period for convictions predating AEDPA’s
    effective date. See Hoggro, 
    150 F.3d at 1226
    . Williams asserts that he began his
    state post-conviction proceedings before the grace period ended by attempting to
    obtain copies of state-court records. Under § 2244(d)(2), however, collateral
    review is commenced only when an application for relief is filed. See Clark v.
    Oklahoma, 
    468 F.3d 711
    , 714 (10th Cir. 2006). Section 2244(d)(2) therefore does
    not toll Williams’ limitations period.
    -3-
    “incompetent advice of inmate law clerks,” and his inability to hire counsel as
    reasons for the delay. Considering that Williams’ petition was delinquent by
    nearly a decade, however, we cannot agree that these circumstances qualify as
    extraordinary or that he diligently pursued his claims. Nor does actual innocence
    provide a basis to review the untimely petition, as Williams points to no new
    evidence affirmatively demonstrating his innocence. See House v. Bell, 
    126 S. Ct. 2064
    , 2077 (2006) (actual innocence claims require “new reliable
    evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
    accounts, or critical physical evidence-that was not presented at trial” (quotation
    omitted)).
    Accordingly, we DENY Williams’ request for a COA and DISMISS. We
    GRANT Williams’ motion to proceed in forma pauperis.
    ENTERED FOR THE COURT
    Carlos F. Lucero
    Circuit Judge
    -4-