Morello v. State of Utah

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 1 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

RONALD MORELLO,

Petitioner-Appellant,

v. No. 00-4196
(D.C. No. 00-CV-199-C)
STATE OF UTAH, (D. Utah)

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.

Ronald Morello seeks to appeal from the district court’s order denying his

petition for writ of habeas corpus on the basis it was barred by the statute of

*
This order and judgment is not binding precedent, except under the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.
limitations. The matter is before us on his application for a certificate of

appealability pursuant to 28 U.S.C. § 2253(c). To be entitled to a COA on the

issue of whether his petition was timely, Morello must show both that it is

debatable whether the district court was correct in this procedural ruling and that

it is debatable whether the petition states a valid claim of the denial of a

constitutional right. Slack v. McDaniel , 529 U.S. 473, 484 (2000).

In his petition, Morello challenges (1) the validity of his conviction for

aggravated robbery in a Utah state court and (2) the decision of the Utah Board of

Pardons to set his parole date in the year 2008. Morello’s challenge to his

conviction is brought pursuant to 28 U.S.C. § 2254. His challenge to the parole

decision is best viewed as a challenge to the execution of his sentence pursuant to

§ 2241. See Montez v. McKinna , 208 F.3d 862, 865 (10th Cir. 2000); United

States v. Furman , 112 F.3d 435, 438 (10th Cir. 1997). The limitations period

provided by § 2244(d)(1) applies to both types of challenges. See Owens v. Boyd ,

235 F.3d 356, 360 (7th Cir. 2000). Section 2244(d)(1) provides a one-year

limitations period that runs from the date a conviction becomes final or the

factual predicate of the claim could have been discovered, unless those dates

preceded enactment of the Antiterrorism and Effective Death Penalty Act of 1996.

In that situation, the one-year period runs from April 24, 1996. See Hoggro v.

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Boone , 150 F.3d 1223, 1225 (10th Cir. 1998). Section 2244(d)(2) also provides a

tolling provision applicable to post-conviction review.

Morello’s complex conviction and incarceration history is detailed in the

magistrate judge’s report and recommendation, which was adopted by the district

court. For present purposes, we need only note that the dates the one-year

limitations period began to run were December 10, 1996, for the challenge to his

conviction and April 24, 1996, for the challenge to the parole decision. Morello

filed the instant habeas petition on March 7, 2000. Even tolling the limitation

period for the four months an earlier federal habeas petition was pending (but

which was eventually dismissed on exhaustion grounds), see Petrick v. Martin ,

236 F.3d 624, 627 (10th Cir. 2001), Morello filed the instant petition long after

the limitations period expired.

Morello presents two arguments why his petition should not be considered

time-barred. First, he contends there are additional state post-conviction remedies

available and that his petition should be dismissed without prejudice so he can

pursue these remedies. We do not decide here whether he can pursue these state

remedies. But his pursuit of these remedies cannot toll the federal limitations

period because that period has already expired, and it cannot be resurrected.

He also contends he was unaware of the Utah Court of Appeals ruling that

started the clock running on December 10, 1996, because he had been transferred

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to a prison in New York and did not receive notice of the ruling. He thus seeks

equitable tolling of the limitations period, but this form of relief “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), cert. denied , 121 S. Ct.

1195 (2001). Morello did not file his first federal habeas until two-and-a-half

years after the state court’s ruling, and the ruling was sent to his counsel, in

addition to his Utah prison address. Under these circumstances, we cannot say

that he diligently pursued his claims and is entitled to equitable relief.

We thus agree with the district court that Morello’s petition is time-barred.

His request for a COA is DENIED, and the appeal is DISMISSED. His

application to proceed in forma pauperis is GRANTED. The mandate shall issue

forthwith.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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