Morris, Jr. v. Ulibarri , 513 F. App'x 777 ( 2013 )


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  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS March 20, 2013
    Elisabeth A. Shumaker
    TENTH CIRCUIT                     Clerk of Court
    HAROLD LEE MORRIS, JR.,
    Plaintiff - Appellant,
    No. 12-2160
    v.                                        (D.C. No. 6:06-CV-01052-MV-SMV)
    (D.N.M.)
    ROBERT ULIBARRI, Warden,
    Defendant - Appellee.
    ORDER
    DENYING CERTIFICATE OF APPEALABILITY
    Before KELLY, HOLMES, and MATHESON, Circuit Judges.
    Harold Lee Morris, Jr., a New Mexico state inmate, seeks a certificate of
    appealability (“COA”) to appeal from the district court’s dismissal of his federal
    habeas corpus petition. 
    28 U.S.C. § 2254
    . Mr. Morris claims that he was
    mentally incompetent at the time he signed his plea agreement. The district court
    denied relief on the merits, adopting a similar recommendation from the
    magistrate judge, who also determined that the petition was time-barred.
    We may only issue a COA if Mr. Morris makes a “substantial showing of
    the denial of a constitutional right.” Miller-El v. Cockrell, 
    537 U.S. 322
    , 336
    (2003) (quotation omitted). If a petition is dismissed on procedural grounds, the
    petitioner must show that reasonable jurists would find it debatable not only
    whether the petition states a valid constitutional claim, but also whether the
    district court’s procedural ruling was correct. 
    28 U.S.C. § 2253
    (c); Slack v.
    McDaniel, 
    529 U.S. 473
    , 484 (2000). A merits dismissal only requires the former
    showing. See 
    id.
     Regardless, we deny a COA and dismiss the appeal.
    A.    Limitations
    Under 
    28 U.S.C. § 2244
    (d)(1)(A), Mr. Morris’s one-year filing deadline
    began to run on October 5, 2002, the day after his conviction became final.
    See N.M. R. App. P. 12-201(A)(2). Under § 2244(d)(2), the limitations period
    was tolled from October 7, 2002 through November 21, 2002, during the
    pendency of Mr. Morris’s properly filed motion for reconsideration of his
    sentence. See Howard v. Ulibarri, 
    457 F.3d 1146
    , 1150 (10th Cir. 2006).
    Accordingly, Mr. Morris had until mid-November 2003 to file his federal habeas
    petition. Because his February 23, 2004 state habeas petition was filed after this
    deadline, it did not toll. See Clark v. Oklahoma, 
    468 F.3d 711
    , 714 (10th Cir.
    2006). Therefore, his federal habeas petition, filed October 26, 2006, was clearly
    untimely unless Mr. Morris is entitled to equitable tolling.
    Mr. Morris argues that equitable tolling is warranted for two reasons: (1)
    his mental incompetence and (2) his lack of access to legal materials. Counsel
    was appointed for Mr. Morris and a magistrate judge held an evidentiary hearing
    on the issue of equitable tolling. Both parties also submitted briefs.
    The magistrate judge concluded that Mr. Morris was not entitled to
    -2-
    equitable tolling. First, the magistrate judge rejected the mental incompetence
    ground, finding that Mr. Morris had failed to establish impairment rising to the
    level of a rare and exceptional circumstance. Alternatively, the judge explained
    that the alleged incompetence, even if believed, would only toll the limitation
    period for a total of seventy-one days. In other words, Mr. Morris’s petition
    would still be untimely. The magistrate judge also declined to apply equitable
    tolling based on lack of access to legal materials, noting that Mr. Morris was able
    to request legal materials through the Supreme Court law library and the Legal
    Access Office. Finally, the magistrate judge addressed Mr. Morris’s allegation
    that officials had confiscated his legal papers. Finding that Mr. Morris failed to
    demonstrate he had diligently pursued his claims, the magistrate judge concluded
    that equitable tolling was not warranted.
    B.    Merits
    In addition to finding Mr. Morris’s petition to be time-barred, the
    magistrate judge also recommended that the petition be denied on the merits. The
    district court dismissed the petition on the merits reasoning that Mr. Morris could
    not overcome the presumption of correctness attendant to a state court finding of
    fact based on a credibility determination, that Mr. Morris was competent at the
    time of his plea. The district court did not reach the limitations issue.
    Discussion
    -3-
    Mr. Morris argues that he was mentally incompetent at the time he signed
    his plea agreement. In particular, he challenges the state court’s credibility
    determinations regarding different doctors’ psychological evaluations. Credibility
    determinations are like findings of fact. State court findings of fact are
    “presumed to be correct” unless the petitioner shows by clear and convincing
    evidence that the state court’s factual determination was erroneous. See 
    28 U.S.C. § 2254
    (e)(1); Schriro v. Landrigan, 
    550 U.S. 465
    , 473–74 (2007). The
    district court concluded that Mr. Morris could not make this showing. Given the
    degree of deference that must be applied, we do not think the district court’s
    conclusion is reasonably debatable. Similarly, the district court correctly denied
    an evidentiary hearing because the state court rejected Mr. Morris’s mental
    incompetence claim on the merits. See Cullen v. Pinholster, 
    131 S. Ct. 1388
    ,
    1398 (2011) (“We now hold that review under § 2254(d)(1) is limited to the
    record that was before the state court that adjudicated the claim on the merits.”).
    Mr. Morris also argues that the district court erred in denying his habeas
    petition on the merits “without any briefing in federal court with the assistance of
    counsel.” Aplt. Br. 3. “[T]he decision to appoint counsel is left to the sound
    discretion of the district court . . . .” Engberg v. Wyoming, 
    265 F.3d 1109
    , 1122
    (10th Cir. 2001). Given the straightforward nature of Mr. Morris’s merits claim,
    along with the fact he was not entitled to an evidentiary hearing, we conclude that
    the district court did not abuse its discretion by denying Mr. Morris’s motion for
    appointed counsel. 
    Id.
     at 1121–22.
    Finally, the magistrate judge’s resolution of the limitations issue is not
    reasonably debatable.
    Accordingly, we DENY Mr. Morris’s request for a COA and DISMISS this
    appeal.
    Entered for the Court
    Paul J. Kelly, Jr.
    Circuit Judge
    -5-
    

Document Info

Docket Number: 12-2160

Citation Numbers: 513 F. App'x 777

Judges: Holmes, Kelly, Matheson

Filed Date: 3/20/2013

Precedential Status: Non-Precedential

Modified Date: 8/6/2023