F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 30, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
BILLY JOE PRICE,
Petitioner - A ppellant, No. 07-4094
v. (D. Utah)
CLIN T FRIEL, W arden, Utah State (D.C. No. 2:05-CV-800-DB)
Prison,
Respondent - Appellee.
OR DER DENY ING CERTIFICATE O F APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Billy Price, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the denial by the United States District Court for
the District of Utah of his application for relief under 28 U.S.C. § 2254. See 28
U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2254 application).
The district court ruled that the application was untimely. W e deny a COA and
dismiss the appeal.
M r. Price was sentenced on April 5, 1993, in Utah state court to an
indeterminate term of five years to life imprisonment for first-degree murder. His
petition for a writ of certiorari from the Utah Supreme Court was denied on
April 9, 1996; and on M ay 12, 1997, the trial court entered an amended judgment
of conviction nunc pro tunc, correcting M r. Price’s sentence with respect to a
firearms enhancement. It appears from the record that M r. Price did not seek
certiorari review from the United States Supreme Court.
On September 26, 2005, M r. Price filed his § 2254 application. The district
court denied his application because it had not been filed within the one-year
limitations period established by the Antiterrorism and Effective Death Penalty
Act of 1996, 28 U.S.C. § 2244(d)(1). The court computed that the limitations
period began to run on July 3, 1996, when M r. Price’s time for seeking review in
the United States Supreme Court expired, see Rhine v. Boone, 182 F.3d 1153,
1155 (10th Cir. 1999); Sup. Ct. R. 13(1) (petition for writ of certiorari must be
filed within 90 days of entry of judgment). It further found that even assuming
that the limitations period had not begun to run until the trial court had entered its
nunc pro tunc order in 1997 (or 30 days afterwards, when the time for seeking
review by the Utah Supreme Court had expired), M r. Price’s 2005 application had
still been filed over seven years after the limitations period had expired. Also,
the district court denied equitable tolling. It rejected M r. Price’s contention that
he had discovered new evidence showing that he was actually innocent, ruling
that the evidence was not new because it had been available and known to
M r. Price before his trial.
“W hen the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA should
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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. M cDaniel, 529 U.S. 473, 484
(2000). M r. Price does not, and could not, challenge the district court’s
determination that he failed to file his § 2254 application within the one-year
limitations period. He does argue, however, that he has provided sufficient
grounds for requiring equitable tolling. W e disagree. Equitable tolling for
habeas corpus relief may be available in extraordinary circumstances, such as
when “a constitutional violation has resulted in the conviction of one who is
actually innocent.” M iller v. M arr, 141 F.3d 976, 978 (10th Cir. 1998). Prisoners
asserting actual innocence must produce “new evidence” establishing that “it is
more likely than not that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.” House v. Bell, 126 S. Ct. 2064, 2076–77 (2006).
M r. Price contends that a psychological report finding him mentally
incapable of forming the necessary intent for first-degree murder is new evidence
of his actual innocence. W e do not agree that this evidence is new. M r. Price
was told at the time of the psychological interview that a report of the evaluation
would be made and sent to the court for use by both the prosecution and the
defense. Although he may not have read its ultimate conclusion until well after
trial, he certainly knew of the report’s existence before trial.
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M r. Price also contends in this court that he did not discover until 2005 that
his sentence had been amended in 1997, and that he filed his § 2254 application
within one year of this discovery. But even if we assume that the one-year
limitations period should be calculated from the 1997 amendment, his application
was untimely by several years. And he fails to explain how not being aware of
the sentence amendment caused him to delay filing his application.
Finally, M r. Price argues that his application should not be barred by the
one-year limitations period because W arden Friel waived an untimeliness defense.
But there was no such waiver. The passage in W arden Friel’s district-court brief
upon which M r. Price relies merely says that M r. Price’s claim of ineffective
assistance of appellate counsel is not procedurally barred by failure to raise the
claim on direct appeal in state court.
No reasonable jurist could debate the district court’s conclusion that
M r. Price’s application was untimely. W e DENY a COA, GRANT his request to
proceed in form a pauperis, and DISM ISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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