Rawlins v. Newton-Embry , 352 F. App'x 273 ( 2009 )


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  •                                                                         FILED
    United States Court of Appeals
    Tenth Circuit
    November 4, 2009
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    LISA RAWLINS,
    Petitioner-Appellant,                   No. 09-6162
    v.                                            (W.D. of Okla.)
    MILLICENT NEWTON-EMBRY,                        (D.C. No. 5:09-CV-00269-HE)
    Respondent-Appellee.
    ORDER DENYING CERTIFICATE OF APPEALABILITY *
    Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **
    Lisa Rawlins was convicted by an Oklahoma jury of first degree murder in
    the death of her two-year-old daughter. O KLA . S TAT . tit. 21, § 701.7(C). She is
    currently serving a life sentence without the possibility of parole. Proceeding pro
    se, 1 Rawlins seeks a certificate of appealability (COA) to challenge the district
    *
    This order is not binding precedent except under the doctrines of law of
    the case, res judicata and collateral estoppel. It may be cited, however, for its
    persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    **
    After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
    1
    Because Rawlins proceeds pro se, we construe her pleadings and filings
    liberally. See Haines v. Kerner, 
    404 U.S. 519
    , 520–21 (1972); Brown v. Perrill,
    
    21 F.3d 1008
    , 1009 (10th Cir. 1994).
    court’s dismissal of her federal habeas corpus petition as time-barred. Rawlins
    argues that the court should have equitably tolled the limitations period due to her
    illiteracy and a nervous breakdown.
    After carefully reviewing the record, we conclude Rawlins is not entitled to
    equitable tolling. Exercising jurisdiction under 
    28 U.S.C. § 2253
    , we therefore
    DENY her COA request, DISMISS her appeal, and DENY her request to proceed
    in forma pauperis.
    I. Background
    Rawlins was convicted of first degree murder in 1993. She appealed to the
    Oklahoma Court of Criminal Appeals, and on November 30, 1994, the OCCA
    affirmed her conviction. The conviction became final on February 28, 1995,
    when the statutory period during which she could have applied for certiorari
    review expired. In her opening brief in this court, Rawlins states that in 1996 she
    was raped by a fellow inmate, was “harrase[d] and taunted” by fellow inmates,
    and suffered a nervous breakdown. She also states that she was illiterate at the
    time of her conviction.
    Rawlins filed for state post-conviction relief on October 29, 2008. The trial
    court denied her claim, and the OCCA affirmed. She then filed for federal habeas
    relief under 
    28 U.S.C. § 2254
     on March 3, 2009. The district court denied her
    federal habeas claim, and she requested a COA from this court.
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    II. Discussion
    A § 2254 petitioner must obtain a COA before appealing from a final order.
    
    28 U.S.C. § 2253
    (c)(1)(A). A prisoner is entitled to a COA only if she has made
    a “substantial showing of the denial of a constitutional right.” 
    28 U.S.C. § 2253
    (c)(2); Miller-El v. Cockrell, 
    537 U.S. 322
    , 327 (2003). When, as here, the
    district court denies the petition on procedural grounds, the petitioner must
    demonstrate that “reasonable jurists” would find it “debatable whether the petition
    states a valid claim of the denial of a constitutional right” and “whether the
    district court was correct in its procedural ruling.” Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000). We are encouraged to address the procedural question first, only
    proceeding to the constitutional question if necessary. 
    Id. at 485
    .
    A.     AEDPA Statute of Limitations
    The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
    establishes that state prisoners have a one-year period from the date their
    conviction becomes final in which to file a federal habeas petition. See 
    28 U.S.C. § 2244
    (d)(1)(A). For convictions that became final before the effective date of
    AEDPA—April 24, 1996—the Tenth Circuit recognizes a one-year grace period
    in which to file a federal habeas claim. Hoggro v. Boone, 
    150 F.3d 1223
    ,
    1225–26 (10th Cir. 1998). This one-year period is tolled when the prisoner is
    seeking post-conviction relief through the state courts. 
    28 U.S.C. § 2244
    (d)(2);
    Hoggro, 
    150 F.3d at 1226
    .
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    Rawlins’s one-year period in which to seek federal habeas review began on
    April 24, 1996, the effective date of AEDPA, and expired on April 24, 1997. Her
    state post-conviction proceedings did not begin until October 2008, more than
    eleven years after the Tenth Circuit’s grace period had ended. Therefore,
    Rawlins’s habeas petition is time-barred, unless the AEDPA filing period is
    equitably tolled.
    B.     Equitable Tolling
    Even if the habeas petition otherwise would be time-barred, a district court
    may equitably toll the statute of limitations if the petitioner “diligently pursues
    [her] claims and demonstrates that the failure to timely file was caused by
    extraordinary circumstances beyond [her] control.” Fleming v. Evans, 
    481 F.3d 1249
    , 1254 (10th Cir. 2007) (quoting Marsh v. Soares, 
    223 F.3d 1217
    , 1220 (10th
    Cir. 2000)). We review the district court’s refusal to equitably toll a limitations
    period for an abuse of discretion, and therefore we will grant a COA only if
    reasonable jurists would debate whether the court’s decision was an abuse of
    discretion. See Fleming, 
    481 F.3d at
    1254 (citing Burger v. Scott, 
    317 F.3d 1133
    ,
    1137–38 (10th Cir. 2003)).
    Liberally construed, Rawlins’s appeal brief argues that her illiteracy and
    her nervous breakdown resulting from prison abuse justify equitable tolling. She
    also claims that she is “factually innocent of first-degree murder,” Pet’r’s Br. at 5,
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    which, if true, would entitle her to equitable tolling. See Burger, 
    317 F.3d at 1141
     (quoting Gibson v. Klinger, 
    232 F.3d 799
    , 808 (10th Cir. 2000)).
    A prisoner’s illiteracy is insufficient to toll the statute of limitations. See
    Yang v. Archuleta, 
    525 F.3d 925
    , 929–30, n.7 (10th Cir. 2008) (rejecting the
    claim that a lack of proficiency in the English language is an extraordinary
    circumstance, and citing with approval unpublished cases rejecting illiteracy as an
    extraordinary circumstance). The district court did not abuse its discretion in
    denying equitable tolling on this theory.
    Furthermore, Rawlins provides insufficient evidence that her nervous
    breakdown was an extraordinary circumstance. Other than saying that she was
    attacked by a fellow inmate in 1996—she does not provide a date or even a month
    to narrow the time frame—she does not state when this nervous breakdown began,
    how long it lasted, or describe her level of impairment during this period. The
    Tenth Circuit has stated in several unpublished opinions that equitable tolling
    because of mental illness is only warranted in circumstances such as “adjudication
    of incompetence, institutionalization for mental incapacity, or evidence that the
    individual is not ‘capable of pursuing [her] own claim’ because of mental
    incapacity.” Hendricks v. Howard, 284 F. App’x 590, 591 (10th Cir. July 17,
    2008) (quoting Reupert v. Workman, 45 F. App’x 852, 854 (10th Cir. Sep. 3,
    2002)). Rawlins’s claim that she suffered from a nervous breakdown does not
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    allege any of the above circumstances, therefore it was not an abuse of discretion
    for the district court to deny her equitable tolling based on this theory.
    Finally, Rawlins’s claim of actual innocence similarly fails. She asserts
    that she did not have the intent to commit murder, and therefore can be convicted,
    at most, of manslaughter. This is a claim that should have been asserted on direct
    appeal, and, in any event, fails on the merits. The statute under which she was
    convicted reads as follows: “A person commits murder in the first degree when
    the death of a child results from the willful or malicious injuring, torturing,
    maiming or using of unreasonable force by said person or who shall willfully
    cause, procure or permit any of said acts to be done upon the child.” O KLA . S TAT .
    tit. 21, § 701.7(C). Since this statute does not require intent to kill, her argument
    that she lacked specific intent is unavailing. She also claims that her husband was
    actually the one who killed their daughter, but the statute allows for conviction of
    a person who “permit[s]” these actions to be done, and therefore this claim also
    fails to assert actual innocence.
    III. Conclusion
    For the foregoing reasons, we conclude that reasonable jurists could not
    debate the correctness of the district court’s dismissal of Rawlins’s habeas
    petition as time-barred. Accordingly, we DENY Rawlins’s request for a COA,
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    DISMISS her appeal, and DENY her request to proceed in forma pauperis on
    appeal.
    Entered for the Court,
    Timothy M. Tymkovich
    Circuit Judge
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