F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 11 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
STEVEN CLARK COOPER,
Petitioner-Appellant,
v. No. 00-2462
(D.C. No. CIV-00-264 JP/RLP)
ERASMO BRAVO, Warden, (D. New Mexico)
Guadalupe County Correctional
Facility; ATTORNEY GENERAL
FOR THE STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.
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.
*
This order and judgment is not binding precedent, except under the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.
Petitioner Steven Clark Cooper, a New Mexico state prisoner appearing
pro se , filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The district court dismissed the petition, concluding it was not filed within the
one-year limitations period set forth in 28 U.S.C. § 2244(d)(1). We granted
Cooper a certificate of appealability (COA) with respect to two issues:
(1) whether the respondent met its burden of demonstrating when Cooper’s
one-year limitations period under § 2244(d) had commenced and expired, and
(2) whether and to what extent the one-year limitations period should be equitably
tolled based on Cooper’s claim that his appointed trial counsel was ineffective for
not filing or properly perfecting his state appeal, and that he did not know for
nearly a year that his direct appeal had been procedurally terminated. We remand
this case to the district court for further proceedings.
I. Background
In January 1998, Cooper pled guilty to thirty counts of criminal sexual
penetration, all involving his minor daughter. On July 27, 1998, he was sentenced
to thirty-six years’ imprisonment on all of the convictions. 1
On August 10, 1998,
1
Cooper’s state court motion for reconsideration indicates, however, that his
judgment and sentence was entered on August 27, 1998. R. Doc. 10, Ex. E. at 1.
We cannot independently ascertain the date judgment was entered because the
docket sheet from Cooper’s state court criminal proceeding was never made part
of the record.
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Cooper filed a notice of appeal. Cooper contends that he requested his court-
appointed counsel to file an appeal, but his counsel failed to take any actions to
perfect the appeal. It is undisputed that neither Cooper nor his counsel filed a
docketing statement, which must be filed within thirty days of the filing of the
notice of appeal in order to perfect the appeal. See N. M. R. App. P. 12-208(B).
There is nothing in the record to indicate, however, how or when Cooper’s
attempted appeal was disposed of by the New Mexico Court of Appeals.
On October 5, 1998, Cooper filed a motion with the trial court for
reconsideration of his sentence, which was dismissed three days later. On
January 27, 1999, he filed an application for post-conviction relief in state court
which was denied on February 25, 1999. He filed a petition for writ of certiorari
appealing the denial to the New Mexico Supreme Court on March 16, 1999, which
was denied on March 30, 1999. On February 23, 2000, Cooper filed his federal
habeas petition.
II. Analysis
A. One-Year Limitations Period
Because Cooper filed his federal habeas petition after April 24, 1996, his
petition is governed by the provisions of the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”). See Hooks v. Ward , 184 F.3d 1206, 1213 (10th Cir.
1999). The district court dismissed Cooper’s petition on the ground that it was
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filed outside of the one-year period of limitations set forth in § 2244(d). Section
2244(d) provides, in relevant part:
(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. The limitation shall run from the latest
of--
(A) the date of which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
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.
This court has held that the limitation period under § 2244(d)(1)(A) commences at
the end of the period in which the prisoner could have sought review of the direct
appeal of his conviction by the United States Supreme Court. Locke v. Saffle ,
237 F.3d 1269, 1273 (10th Cir. 2001).
Adopting the magistrate judge’s report and recommendation, the district
court determined that the one-year limitations period began thirty-four days after
Cooper filed his notice of appeal, on the date when the required docketing
statement was not filed in the New Mexico Court of Appeals. The district court
did not explain the basis of this calculation; apparently, it implicitly treated
Cooper’s attempted appeal as a nullity and determined that Cooper’s conviction
became final at the expiration of the time for seeking direct review. The district
court then tolled the one-year limitations period during the period in which
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Cooper’s state habeas petition was pending. See 28 U.S.C. § 2244(d)(2). With
these allowances, the district court concluded that Cooper’s limitations period
expired three months before he filed his federal habeas petition.
Cooper contends the district court erred in dismissing his petition as
untimely under § 2244(d)(1). Specifically, he claims the limitations period should
be tolled because he instructed his counsel to file a direct appeal and did not
learn for nearly a year that his direct appeal had not been perfected properly.
We review de novo the district court’s interpretation of 28 U.S.C. § 2244(d).
See United States v. Fillman , 162 F.3d 1055, 1056 (10th Cir. 1998). The
respondent bears the burden of proving that the AEDPA limitations period has
expired. Cf. Hooks v. Ward , 184 F.3d at 1216-17 (holding that state bears the
burden of proving the adequacy of a state procedural bar to federal habeas
review).
Under New Mexico law, it is the responsibility of an appellant’s trial
counsel, unless relieved of such obligation by the court, to file a docketing
statement within thirty days of filing a notice of appeal in the New Mexico Court
of Appeals. N. M. R. App. P. 12-208(A) and (B). The New Mexico Court of
Appeals requires a docketing statement in order to perfect an appeal. Cf. Schmitz
v. Smentowski , 785 P.2d 726, 732 (N.M. 1990). The docketing statement must
include a concise and accurate statement of all the material facts and a statement
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of the issues presented by the appeal, including how they arose and how they were
preserved in the trial court. Rule 12-208(D). The court may grant an extension of
time within which to file the docketing statement upon a showing of good cause.
Johnson v. School Bd. of Albuquerque Pub. Sch. Sys. , 823 P.2d 917, 918
(N.M. Ct. App. 1991).
As noted, it is undisputed that Cooper’s counsel failed to file the required
docketing statement. No records from the New Mexico Court of Appeals relating
to Cooper’s attempted direct appeal were provided to the district court.
Therefore, there is no evidence in the record indicating how or when Cooper’s
appeal was ultimately terminated. Although the district court assumed that the
appeal was terminated thirty-four days after the notice of appeal was filed, it is
also possible that some longer period of time elapsed after the docketing
statement deadline passed before the appellate court dismissed or otherwise
disposed of Cooper’s appeal. Nor can we accept the district court’s assumption
that Cooper’s appeal was never docketed or was otherwise a nullity. The appeal
might, instead, have been dismissed by the New Mexico Court of Appeals, in
which case Cooper’s one-year limitation period would not have begun to run until
the time for filing a certoriari petition expired. See Locke , 237 F.3d at 1273.
In the absence of any record, we simply do not know when or how Cooper’s state
appeal was terminated. The district court lacked any evidentiary support for its
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conclusion that Cooper’s conviction became final thirty-four days after he filed
his notice of appeal. On this basis alone, a remand is necessary for a factual
determination in the first instance of how and when the New Mexico Court of
Appeals disposed of Copper’s direct appeal. See Cowles v. Dow Keith Oil & Gas,
Inc. , 752 F.2d 508, 511 (10th Cir. 1985) (holding that a finding of fact is clearly
erroneous if it is without factual support in the record).
Moreover, under § 2244(d)(1)(D), Cooper’s one-year limitations period
may not even have begun until after he learned that his attorney had failed to file
a direct appeal, at least with respect to his ineffective assistance of counsel claim.
Cooper alleged in his § 2254 habeas petition that his counsel was ineffective
because he failed to follow Cooper’s instructions to file a direct appeal. R. Doc.
1, at 6(f). If that allegation is true, then “the date on which the factual predicate
of [this particular ineffective assistance of counsel claim] could have been
discovered through the exercise of due diligence,” § 2244(d)(1)(D), would be the
day on which Cooper could have reasonably discovered that his counsel failed to
follow his instructions to appeal his guilty plea. See Powell v. Williams ,
981 F. Supp. 1409, 1412 (D.N.M. 1997) (concluding that, under § 2244(d)(1)(D),
the limitations period on an ineffective assistance of counsel claim based on the
failure to file a direct appeal began to run “when [the petitioner] discovered or
should have discovered through the exercise of due diligence [that] his attorney
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had failed to file a direct appeal” and rejecting the argument that the statute of
limitations began to run when the petitioner’s judgment and sentence became
final). On remand, the district court should consider the application of
§ 2244(d)(1)(D) to Cooper’s ineffective assistance of counsel claim.
III. Equitable Tolling
The district court also failed to consider adequately Cooper’s claim that the
limitations period should be equitably tolled. The one-year statute of limitations
may be equitably tolled, although only “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). Cooper has the burden of
demonstrating that equitable tolling should apply. See Miller v. Marr , 141 F.3d
976, 978 (10th Cir. 1998) (refusing to apply equitable tolling because the
petitioner “provided no specificity regarding the alleged lack of access and the
steps he took to diligently pursue his federal claims”).
Cooper contends that § 2244(d)(1)’s limitations period should be equitably
tolled because he instructed his attorney to file a direct appeal, had a right to
expect his attorney would file the docketing statement and perfect the appeal on
his behalf, and waited for nearly a year before he learned that his state appeal had
not been perfected. His allegation is supported, to some degree, by earlier
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statements in his state pleadings. In his January 1999 state habeas petition,
Cooper informed the court that he had filed a notice of appeal but did not know
the status of his appeal. R. Doc. 10, Ex. G, at 2. He further explained that he
assumed the New Mexico Court of Appeals would notify him when the appeal
was concluded. Id.
Cooper’s allegations might constitute the type of extraordinary
circumstances warranting the application of equitable tolling. See Woodward v.
Williams , 263 F.3d 1135, 1143 (10th Cir. 2001) (holding that “a prisoner’s lack of
knowledge that the state courts have reached a final resolution of his case can
provide grounds for equitable tolling if the prisoner has acted diligently in the
matter”). The respondent counters that the attempted state appeal should have no
effect on § 2244(d)’s one-year limitations period because Cooper waived his right
to any direct appeal by pleading guilty and not reserving any issues for direct
appeal. Under New Mexico law, a voluntary guilty plea, made with full
understanding of the consequences, ordinarily waives a defendant’s right to
appeal on any grounds other than jurisdictional unless a conditional plea
agreement reserves the issue for appeal. State v. Hodge , 882 P.2d 1, 5 (1994).
The limited record before this court does not reveal that Cooper reserved any
issues for appellate review in his plea agreement or plea proceedings.
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Cooper, however, claims that he did not knowingly or voluntarily enter into
his plea agreement or any implied waiver of appellate rights contained therein. 2
In this regard, we note that neither the plea agreement nor the record of the plea
proceedings make any reference to a waiver of appellate rights, see R. Doc. 10,
Exs. B and C, and that the judgment and sentence entered by the trial court
expressly states that Cooper was notified of his right to appeal and his right to
have court-appointed counsel pursue that appeal if he was indigent, id. Ex. A,
at 6-7. Thus, on the face of the record before us, it is not entirely clear that
Cooper waived his right to appeal.
Moreover, even if Cooper did enter a knowing, voluntary, unconditional
guilty plea waiving his right to appeal, his counsel would remain obligated under
New Mexico law to file an appeal and related docketing statement if Cooper
wanted to appeal his guilty plea. Though his counsel might have correctly
concluded such an appeal would be frivolous, he would be obligated under
New Mexico law to “advance all points for reversal requested to be advanced by
2
Respondent asserts that Cooper is not claiming that his guilty plea was
involuntary. Cooper asserted in his state habeas petition that his plea agreement
was not knowingly entered into because his trial counsel did not present viable
alternatives to pleading guilty. R. Doc. 10, Ex. G. at 3. He further alleges in his
§ 2254 petition that his plea was not entered into knowingly and intelligently.
R. Doc. 1, at 6(e). Finally, Cooper states in his federal habeas petition that the
state trial court specifically informed him that he had a right to file an appeal.
Id. at 6(f).
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defendant, even if counsel had no confidence in them or if he could not in good
faith support them.” State v. Boyer , 712 P.2d 1, 4 (N.M. Ct. App. 1985) (citing
State v. Franklin , 428 P.2d 982 (N.M. 1967) and its progeny). Even where
counsel believes an appeal to be frivolous, he remains obligated “to prepare a
docketing statement of sufficient completeness to afford adequate appellate
review.” State v. Talley , 702 P.2d 353, 359 (N.M. Ct. App. 1985); see also
Boyer , 712 P.2d at 4 (requiring counsel, in a case where counsel believes the
requested appeal to be frivolous, to prepare a docketing statement that states the
contentions advanced by a defendant, includes a statement of all facts material to
those contentions, informs the court whether and how the contentions were raised
in the trial court, and informs the court whether the contentions or facts would
appear in the record).
As noted, Cooper has alleged that he instructed his counsel to file an
appeal. If true, his counsel would have been statutorily and ethically obligated to
file the required docketing statement, in which case Cooper’s direct appeal would
not have been deemed abandoned, as respondent claims it was. If true, the
limitations period of Cooper’s ineffective assistance of counsel claim in his
habeas petition might not begin to run under § 2244(d)(1)(D) until the date when
Cooper discovered, or could have discovered with the exercise of due diligence,
that his counsel did not follow his instructions to appeal his guilty plea. And,
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if true, Cooper could reasonably have believed for a year that his state appeal was
still pending, as he claims, which might justify equitable tolling.
The district court did not address these allegations. We therefore remand
this case to the district court with instructions to develop the facts further, to
assess their legal significance, and to assess the balance of equities in this case in
the first instance. We suggest no outcome on remand. We hold only that the
present state of the record does not permit an informed decision on when and how
Cooper’s direct appeal was terminated, when § 2244(d)’s limitation period
commenced, and whether equitable tolling is appropriate in this case.
The district court’s judgment that Mr. Cooper’s habeas petition was
untimely under § 2244(d)(1) is VACATED, and the case is REMANDED with
instructions for further proceedings. Respondent’s motion to supplement the
record is DENIED. The mandate shall issue forthwith.
Entered for the Court
Deanell Reece Tacha
Chief Judge
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