Hill v. Workman , 141 F. App'x 754 ( 2005 )


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  •                                                                          F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    July 27, 2005
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    NOAH Q. HILL,
    Petitioner-Appellant,                      No. 04-6351
    v.                                             (W.D. Oklahoma)
    RANDY WORKMAN, Warden,                           (D.C. No. CIV-04-894-F)
    Respondent-Appellee.
    ORDER
    Before EBEL, MCKAY, and HENRY, Circuit Judges.
    Noah Q. Hill, an Oklahoma state prisoner proceeding pro se, seeks a
    certificate of appealability (“COA”) to appeal the district court’s decision
    dismissing as untimely his 
    28 U.S.C. § 2254
     petition for a writ of habeas corpus.
    He also seeks leave to proceed in forma pauperis (“IFP”). We deny Mr. Hill’s
    application for a COA, deny his request to proceed IFP, and dismiss this appeal.
    I. BACKGROUND
    On November 20, 1995, Mr. Hill pleaded guilty in Oklahoma County
    district court to first-degree murder and robbery with firearms. On November 20,
    1995, the court sentenced him to a term of life imprisonment without parole and a
    consecutive term of fifteen years’ imprisonment. Mr. Hill did not appeal his
    convictions or sentences. However, on April 21, 2004, he filed an application for
    post-conviction relief in the Oklahoma County district court. The Oklahoma
    County court denied the application, and, on June 22, 2004, the Oklahoma Court
    of Criminal Appeals affirmed that decision.
    On July 14, 2004, Mr. Hill delivered to prison officials a federal petition
    for a writ of habeas corpus pursuant to 
    28 U.S.C. § 2254
    . In the petition, he
    alleged that he had received ineffective assistance of counsel in violation of his
    Sixth Amendment rights because his attorney had failed to present mitigating
    evidence at sentencing and had failed to file a direct appeal.
    The federal district court received Mr. Hill’s petition on July 19, 2004,
    and referred the matter to a magistrate judge. The magistrate judge concluded
    that Mr. Hill’s petition was untimely and recommended dismissal. Mr. Hill
    objected to that recommendation, but the district court agreed with the magistrate
    judge and dismissed Mr. Hill’s petition as time-barred.
    II. DISCUSSION
    To obtain a COA, Mr. Hill must make “a substantial showing of the denial
    of a constitutional right.” 
    28 U.S.C. § 2253
    (c)(2). Mr. Hill may make this
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    showing by demonstrating 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.” Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003) (internal
    quotation marks omitted). “[A] claim can be debatable even though every jurist
    of reason might agree, after the COA has been granted and the case has received
    full consideration, that [the] petitioner will not prevail.” 
    Id. at 338
    .
    Mr. Hill also seeks to proceed IFP in this appeal. In order to succeed on a
    motion to proceed IFP, Mr. Hill must show a financial inability to pay the
    required filing fees, as well as the existence of a reasoned, nonfrivolous argument
    on the law and facts in support of the issues raised in the action. See
    DeBardeleben v. Quinlan, 
    937 F.2d 502
    , 505 (10th Cir. 1991) (addressing IFP
    status requirements on appeal).
    Here, the decision whether to grant a COA turns on the application the one-
    year statute of limitations for § 2254 actions, established by the Anti-Terrorism
    and Effective Death Penalty Act (“AEDPA”). See 
    28 U.S.C. § 2244
    (d)(1). Under
    § 2244(d)(1), a habeas corpus petition must be filed within one year of the latest
    of:
    (A) the date on which the judgment became final by the
    conclusion of direct review or the expiration of the time
    for seeking such review;
    (B) the date on which the impediment to filing an
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    application created by State action in violation of the
    Constitution or laws of the United States is removed, if the
    applicant was prevented from filing by such State action;
    (C) the date on which the constitutional right asserted was
    initially recognized by the Supreme Court, if the right has
    been newly recognized by the Supreme Court and made
    retroactively applicable to cases on collateral review; or
    (D) the date on which the factual predicate of the claim or
    claims presented could have been discovered through the
    exercise of due diligence.
    
    28 U.S.C. § 2244
    (d)(1).
    As we have noted, Mr. Hill pleaded guilty on November 20, 1995. He did
    not seek to withdraw the guilty pleas or otherwise appeal his convictions. Thus,
    his convictions became final on November 30, 1995, ten days after the entry of
    judgment and sentence. See O KLA . S TAT . tit. 22, § 1051. Absent the removal of
    some impediment to filing, a Supreme Court decision made retroactive to cases on
    collateral review, the discovery of a factual predicate, see 
    28 U.S.C. § 2244
    (d)(1)(B)–(D), or the tolling of the limitations period, see 
    28 U.S.C. § 2244
    (d)(2), Mr. Hill had until April 24, 1997 (one year after AEDPA’s effective
    date) to timely file his § 2254 petition. See United States v. Hurst, 
    322 F.3d 1256
    , 1260 (10th Cir. 2003) (establishing April 24, 1997 as end of statutory grace
    period); United States v. Simmonds, 
    111 F.3d 737
    , 746 (10th Cir. 1997) (creating
    grace period beginning on April 24, 1996), overruled on other grounds by Hurst,
    
    111 F.3d at 1260
    . However, Mr. Hill did not file his § 2254 petition until over
    seven years later.
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    As in the district court proceedings, Mr. Hill argues that the one-year
    limitations period should be equitably tolled. He contends that a copy of 
    28 U.S.C. § 2244
     was not available to him in any of the facilities in which he was
    incarcerated and that as a result, he was not aware of AEDPA’s statute of
    limitations. He adds that it was not until he received the magistrate judge’s report
    and recommendation that he learned that there were time limits on the filing of a
    habeas corpus petition.
    Mr. Hill also invokes the Fifth Circuit’s decision in Egerton v. Cockrell,
    
    334 F.3d 433
     (5th Cir. 2005). There, the court concluded that “[t]he State’s
    failure to make available to a prisoner the AEDPA, which sets forth the basic
    procedural rules the prisoner must follow in order to avoid having his habeas
    petition summarily thrown out of court [constituted] an impediment” under §
    2244(d)(1)(B). Id. at 438. Accordingly, the court held that the one-year
    limitations period did not begin to run until the petitioner was transferred to a
    facility where a copy of AEDPA was available.
    In this circuit, equitable tolling is only warranted in “rare and exceptional
    circumstances.” York v. Galetka, 
    314 F.3d 522
    , 527 (10th Cir. 2003). For
    example, “[e]quitable tolling would be appropriate . . . when a prisoner is actually
    innocent” or “when an adversary’s conduct–or other uncontrollable
    circumstances–prevents a prisoner from timely filing.” Gibson v. Klinger, 232
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    F.3d 799, 808 (10th Cir. 2000). However, “[s]imple excusable neglect is not
    sufficient.” 
    Id.
     Moreover, equitable tolling applies only “when an inmate
    diligently pursues his claims.” Marsh v. Soares, 
    223 F.3d 1217
    , 1220 (10th Cir.
    2000). Absent such diligence, “a claim of insufficient access to relevant law,
    such as AEDPA, is not enough to support equitable tolling.” Gibson, 232 F.3d at
    808; Miller v. Marr, 
    141 F.3d 976
    , 978 (10th Cir. 2000) (noting that “[the
    petitioner] has provided no specificity regarding the alleged lack of access [to
    AEDPA]” and that “[i]t is not enough to say that [a particular correctional]
    facility lacked all relevant statutes and case law or that the procedure to request
    specific materials was inadequate” and therefore concluding that equitable tolling
    of the limitations period was not warranted).
    We agree with the district court that Mr. Hill has not met this circuit’s
    standard for equitable tolling. More than eight years elapsed between the
    imposition of Mr. Hill’s sentence in November 1995 and the filing of his state
    post-conviction action in April 2004, and he offers no explanation of this long
    delay. Moreover, by Mr. Hill’s own account, he filed his state post-conviction
    action when he was still unaware of AEDPA, and the fact that he was able to do
    so undermines the proposition that a lack of access to AEDPA caused the delay in
    filing his § 2254 petition. See id. (noting that “the claims [the petitioner] sought
    to raise are similar to those raised in his direct appeal and motion for state
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    postconviction relief, thereby undercutting his argument that lack of access
    caused his delay”). 1
    II. CONCLUSION
    Accordingly, we DENY Mr. Hill’s application for a COA, DENY his
    request to proceed IFP, and DISMISS this appeal.
    Entered for the Court
    Robert H. Henry
    Circuit Judge
    1
    We also note that the Fifth Circuit case on which Mr. Hill relies is
    distinguishable in important respects. There, the petitioner alleged that within the
    eight an a half month period following the imposition of his sentence, he filed
    numerous requests for legal materials but was informed by prison officials to
    cease filing these requests because law library privileges were unavailable to
    prisoners in his housing unit. Egerton, 334 F.3d at 435. Moreover, unlike Mr.
    Hill, the petitioner did not file a state post-conviction proceeding until after he
    learned about AEDPA. Id. Thus, the prejudicial effect of the lack of access to
    AEDPA was supported by the record in a manner that is lacking here.
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