F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 18 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
TONY ROBINSON,
Petitioner-Appellant, Nos. 02-6366, 02-6391
v. (D.C. No. CIV-01-1683-A)
DAYTON J. POPPELL, Warden, (W. D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and HARTZ , Circuit Judges.
Petitioner pro se Tony Robinson is a prisoner in the custody of the state of
Oklahoma. He received his prison sentence in 1999, after pleading guilty to two
counts of shooting with intent to kill and one count of possession of a firearm
after a felony conviction. On October 25, 2001, Petitioner filed an application for
a writ of habeas corpus under 28 U.S.C. § 2254. Following the recommendation
of a United States Magistrate Judge, the district court dismissed the petition as
untimely in an order entered October 25, 2002. Petitioner now seeks a Certificate
*
This order and judgment is not binding precedent, except under the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.
of Appealability (COA), so that he may appeal the district court’s decision. He
also seeks leave to proceed in forma pauperis (IFP). We deny his request for a
COA and his request to proceed IFP.
In his original § 2254 application, and in his briefs on appeal, Petitioner
offers several arguments why his petition should not be considered time-barred.
Under 28 U.S.C. § 2244(d)(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.” This “limitations period generally runs from the date
on which the state judgment became final after direct appeal, see 28 U.S.C.
§ 2244(d)(1)(A).” Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001). In
this case Petitioner does not seem to dispute that he failed to file his § 2254
application within one year of his judgment becoming final. He contends,
however, that (1) several opinions issued by the United States Supreme Court
have changed the law concerning the rights that he asserts, (2) his attorney failed
to comply with his request to file an appeal in state court, and (3) he has
established grounds justifying equitable tolling of the limitations period.
In reviewing whether Petitioner’s § 2254 application was timely, the
magistrate judge considered the allegation that certain Supreme Court opinions
had created changes in the law affecting Petitioner’s claims. The magistrate
judge construed Petitioner’s claim as an argument that the one-year limitations
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period did not start to run until these opinions were issued. Under 28 U.S.C.
§ 2244(d)(1)(C), the limitations period may be measured from “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.”
Petitioner cited three Supreme Court cases as reflecting changes in the law
applicable to his case—Williams v. Taylor, 529 U.S. 362 (2000), Roe v. Flores-
Ortega, 528 U.S. 470 (2000), and Lackawanna County District Attorney v. Coss,
532 U.S. 394 (2001). The magistrate judge noted that even if Williams and Roe
extended the limitations period under 28 U.S.C. § 2244(d)(1)(C), Petitioner did
not file his § 2254 application within a year of the Supreme Court’s rulings. The
Court issued its opinion in Roe on February 23, 2000, and its opinion in Williams
on April 18, 2000. Petitioner did not commence post-conviction proceedings in
state court until May 16, 2001, and he did not file his federal habeas application
until October 25, 2001. With respect to Lackawanna, 532 U.S. 394, the
magistrate judge pointed out that the Supreme Court’s holding concerned the
circumstances under which a prisoner can use a § 2254 petition to challenge an
earlier state conviction on which a sentencing enhancement was based.
Lackawanna thus did not signify the recognition of a new right relating to either
of the two substantive claims asserted in Petitioner’s § 2254 application—his
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claim that he had received ineffective assistance of counsel when his attorney
failed to file an appeal or his claim that his conviction violated the Double
Jeopardy Clause.
The magistrate judge next discussed whether Petitioner’s allegation that his
attorney refused to follow his instructions to file an appeal supported his
contention that his petition should be considered timely. The record indicates that
after the state trial court sentenced Petitioner, Petitioner filed a pro se motion to
withdraw his guilty pleas. The trial court denied the motion during a hearing on
November 24, 1999, at which defense counsel was present. Petitioner maintains
that after the hearing, he asked his attorney to file an appeal. His attorney
refused, stating that there were no grounds for an appeal.
The magistrate judge examined whether these circumstances suggested that
the limitations period should be calculated as having started on the date Petitioner
learned, or should have learned, that his attorney had not filed an appeal. Under
28 U.S.C. § 2244(d)(1)(D), in some cases the limitations period may begin
running from “the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.”
Rejecting the idea that this provision applied to Petitioner’s § 2254 application,
however, the magistrate judge stressed that “it appears that Petitioner was aware
or with reasonable diligence should have been aware on November 24, 1999, of
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the factual basis for his claim”; that “Petitioner presents no argument or evidence
as to when or how he may have discovered that a certiorari appeal had not been
filed”; and that “Petitioner waited nearly 18 months before seeking an appeal out
of time.” Report and Recommendation, at 8.
Finally, the magistrate judge turned to an analysis of whether Petitioner had
established grounds for equitable tolling. Such tolling is appropriate only under
“rare and exceptional circumstances.” Burger v. Scott, 317 F.3d 1133, 1141 (10th
Cir. 2003) (internal quotation marks omitted). “Equitable tolling would be
appropriate, for example, when a prisoner is actually innocent, when an
adversary's conduct—or other uncontrollable circumstances—prevents a prisoner
from timely filing, or when a prisoner actively pursues judicial remedies but files
a defective pleading during the statutory period. Simple excusable neglect is not
sufficient.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (internal
citations omitted). Here, the magistrate judge found that Petitioner had failed to
show exceptional circumstances supporting equitable tolling. The magistrate
judge observed that Petitioner had not diligently pursued his claims. Petitioner
did not initiate any state post-conviction proceedings until almost a year-and-a-
half after his conviction became final, and he has not provided any explanation
justifying his failure to seek federal habeas relief until the time that he did.
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In adopting the magistrate judge’s conclusion that Petitioner’s habeas
petition was untimely under 28 U.S.C. § 2244(d), the district court relied on a
procedural ground to dismiss the action. The United States Supreme Court has
instructed that
“[w]hen the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional
claim, a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct
in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Slack court went on to note
that “[w]here a plain procedural bar is present and the district court is correct to
invoke it to dispose of the case, a reasonable jurist could not conclude either that
the district court erred in dismissing the petition or that the petitioner should be
allowed to proceed further.” Id. We recognize that in determining whether to
issue a COA, we should not undertake a “full consideration of the factual or legal
bases adduced in support of the claims.” Miller-El v. Cockrell, 123 S. Ct. 1029,
1039 (2003). Rather, “[t]he COA determination under § 2253(c) requires an
overview of the claims in the habeas petition and a general assessment of their
merits.” Id. (emphasis added).
We find that the district court’s procedural ruling would not be debatable
among jurists of reason. Therefore, for substantially the same reasons set forth in
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the magistrate judge’s Report and Recommendation of September 6, 2002, and the
district court’s order of October 25, 2002, we DENY Movant’s request for a
COA. We also DENY his request to proceed IFP.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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