F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 2 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
SHAWN EUGENE CORNTASSEL,
Petitioner - Appellant,
v. No. 02-5038
D.C. No. 01-CV-122-H
CHARLES RAY, Warden of Davis (N.D. Oklahoma)
Correctional Center; DREW
EDMONDSON, Attorney General for
the State of Oklahoma; JAMES
SAFFLE,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before EBEL, LUCERO, and O’BRIEN, 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.
*
This order and judgment is not binding precedent except under the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.
Shawn E. Corntassel applies pro se for a certificate of appealability 1 of the
district court’s denial of his petition for writ of habeas corpus filed under 28
U.S.C. § 2254. The district court denied the habeas petition as time-barred 2 and
denied the certificate. Exercising jurisdiction conferred by 28 U.S.C. §
2253(c)(1), we agree the petition was untimely filed, deny the renewed request for
a certificate of appealability 3, and dismiss the appeal.
Mr. Corntassel was convicted by an Oklahoma jury in October 1992 of two
felony counts: (1) assault and battery with a dangerous weapon, and (2) second
degree murder. He was sentenced to consecutive terms of imprisonment: ten
years for the assault, and thirty-five years for the murder. The Oklahoma Court of
Criminal Appeals affirmed his convictions on April 4, 1995. Mr. Corntassel then
invoked state post-conviction review through three successive applications for
post-conviction relief (all denied, two appealed, both appeals denied) and one
petition for writ of habeas corpus (denied, appealed, appeal denied). Finally, he
filed for federal habeas review on February 20, 2001.
Petitioners have one year in which to file a federal habeas petition from a
1
See 28 U.S.C. § 2253(c)(1).
2
It is clear from the record the district court could have declined issuance
of a writ on the grounds of failure to exhaust state remedies, 28 U.S.C. §
2254(b)(1), and adjudication on the merits in state court, 28 U.S.C. § 2254(d).
3
We grant Mr.Corntassel’s motion to correct his application for a
certificate of appealability and consider his corrective material.
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state court judgment pursuant to 28 U.S.C. § 2244(d). The year commences with
the date on which the state judgment becomes final, and is tolled while state court
post-conviction proceedings are pending. 4 The district court calculated the
deadline to petition for federal habeas relief to be August 5, 1997. While Mr.
Corntassel does not contest this calculation, he argues § 2244(d) should still not
bar his claim for three reasons we are able to construe from his pleadings 5: (1) he
should benefit from equitable tolling; (2) § 2244(d) violates the Suspension
Clause of the U.S. Constitution; and (3) § 2244(d) does not apply to habeas
petitions challenging the jurisdiction of the state court to render judgment on a
criminal conviction. 6
We issue a certificate of appealability “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). When a district court has dismissed a § 2254 petition on procedural
grounds, a certificate will issue when “jurists of reason would find it debatable
4
Mr. Corntassel’s state habeas corpus petition and his third application for
post-conviction relief were both filed outside the one-year limitation period and
thus do not toll as pending state collateral review actions under 28 U.S.C. §
2244(d)(2). Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001), cert.
denied, 122 S. Ct. 1789 (2002).
5
We construe a pro se pleading liberally. Haines v. Kerner, 404 U.S. 519,
520-21 (1972).
6
Mr. Corntassel contends he was actually innocent of the offense of
second degree murder of which he was convicted on a lesser-included offense
instruction.
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whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Equitable tolling is a doctrine providing safety-valve relief from rigid
application of the one-year limitation rule of § 2244(d). It is only available in
“rare and exceptional circumstances,” Gibson v. Klinger, 232 F.3d 799, 808 (10th
Cir. 2000) (internal citation omitted), such as “when a prisoner is actually
innocent [or] when an adversary’s conduct–or other uncontrollable
circumstances–prevents a prisoner from timely filing . . . .” Id. (internal citations
omitted). “Moreover, a petitioner must diligently pursue his federal habeas
claims . . . .” Id. Since Mr. Corntassel waited more than three and one-half years
after the federal deadline to file his claim, we agree with the district judge’s
decision to deny him equitable tolling relief. He was not diligent. Furthermore,
there is no evidence in the record to suggest he is actually innocent of the charges
of which he stands convicted, or that other uncontrollable circumstances impeded
him from timely filing his federal claim.
Mr. Corntassel next argues the one-year limitation in § 2244(d) violates the
Suspension Clause, U.S. Const. art. I, § 9, cl. 2. 7 To succeed, Mr. Corntassel
must demonstrate the one-year limitation of § 2244(d) renders the habeas remedy
7
“The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require it.”
U.S. Const. art. I, § 9, cl. 2.
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“inadequate or ineffective to test the legality of [his] detention.” Miller v. Marr,
141 F.3d 976, 977 (10th Cir.) (internal quotation marks and citation omitted),
cert. denied, 525 U.S. 891 (1998). He has not met his burden since his own lack
of diligence, not § 2244(d), foreclosed his ability to proceed with federal habeas
action.
Finally, Mr. Corntassel argues § 2244(d) does not bar habeas review of a
proceeding conducted without jurisdiction and, hence, in violation of his due
process rights. We construe this argument as another request for equitable
tolling, this time on the basis of actual innocence. Mr. Corntassel reasons his
conviction for second degree murder is void since he was charged with first
degree murder, but convicted of second degree murder on a lesser-included
offense instruction. He argues a trial court loses subject matter jurisdiction when
the judge gives an arguably erroneous instruction. 8 He offers no authority in
support of this proposition; we find none, and so this basis of his claim fails. See
Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992) (dismissing an
argument unsupported by cogent authority).
We conclude no reasonable jurist would debate the district court was
8
Mr. Corntassel raised the same argument in his third state application for
post-conviction relief, filed after the federal habeas deadline. In affirming the
denial of the application, the Oklahoma Court of Criminal Appeals found no error
in the trial court instruction on second degree murder as a lesser-included offense
of first degree murder.
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correct in its procedural ruling, we decline to issue a certificate of appealability,
and DISMISS the appeal.
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
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