FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 6, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
R OY EA STER WO O D ,
Petitioner - A ppellant, No. 06-7115
v. E.D. Okla.
STEVEN BECK, W arden of the M ack (D.C. No. 04-CV -00370-FHS)
Alford Correctional Center,
Defendant - Appellee.
O RD ER DEN YIN G
CERTIFICATE O F APPEALABILITY
A ND DISM ISSIN G A PPLIC ATIO N
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
Petitioner Roy Easterwood, a state prisoner proceeding pro se, 1 filed a
28 U.S.C. § 2241 petition for a writ of habeas corpus attacking the execution of
his sentence. The district court dismissed the petition as untimely under the
Antiterrorism and Effective Death Penalty Act's (AEDPA ) one-year limitations
period. Easterw ood then filed a request for a certificate of appealability (COA )
and to proceed in form a pauperis (ifp) on appeal. The district court granted
Easterwood’s motion to proceed ifp but denied a CO A. He renews his request for
1
Pro se pleadings are liberally construed. Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir.2003).
COA in this Court. Pursuant to 28 U.S.C. § 2253, we deny Easterw ood’s
application for a certificate of appealability and dismiss his application.
I. Background
In December 1979, Easterwood was convicted of first degree murder in the
District Court for Choctaw County, Oklahoma and sentenced to life
imprisonment, an indeterminate sentence rather than a certain number of years.
In 1997, Oklahoma attempted to revamp its criminal statutes through the Truth in
Sentencing Act. The A ct created m atrices describing the punishment for every
criminal violation. Relevant to this case, Schedule A defined life imprisonment
as “imprisonment for a period of not less than eighteen (18) years nor more than
sixty (60) years . . . .” Oklahoma Truth in Sentencing A ct, 1997 Okla. Sess.
Laws, 1 Reg. Sess., 133 § 4(6) (to be codified at Okla. Stat. tit. 21 § 14(6) (1997
Supp).) The Act was repealed before it w as to take effect. Anderson v. State, 130
P.3d 273, 281 n.19 (O kla. Crim. App. 2006).
In 2001, the Oklahoma legislature passed amendments to several statutes
dealing with pardons and parole. See e.g. Okla. Stat. tit. 57 § 332.7. The
amendments referred to the matrices for the purpose of parole calculations.
Easterwood claims these references “revived” the matrices as law, not only for
parole purposes, but also to make his formerly indeterminate sentence now a
sentence for a certain amount of years. Thus, according to Easterw ood’s
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calculations, his time served combined with his earned credit days 2 requires his
immediate release.
On August 23, 2004, Easterwood filed the instant petition for a writ of
habeas corpus, alleging he had completed his sentence and requesting immediate
release. The district court dismissed his claims concluding they were time-barred
by the one-year statute of limitations. 28 U.S.C. § 2244; See Burger v. Scott, 317
F.3d 1133, 1138 (10th Cir. 2003) (applying the § 2244 limitations period to
claims arising under § 2241). Petitions for a writ of habeas corpus must be filed
within one year of certain dates, including “the date on which the factual
predicate of the claim or claims presented could have been discovered through the
exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). The district court
determined the provisions of the Oklahoma 2001 Truth in Sentencing Act invoked
by Easterwood provided the “factual predicate” for his claims. Because he filed
his petition more than one year after the statutes went into effect on July 1, 2001,
his petition was untimely. The district court also dismissed Easterwood’s second
claim in which he argued the state failed to comply with Oklahoma post-
conviction procedures, as it was purely a matter of state law and in habeas
proceedings, we “are limited to deciding whether a conviction violated the
2
W hile Easterwood recognizes O kla. Stat. tit. 57 § 138 specifically
prohibits the application of earned credits to reduce a life sentence, Easterwood
apparently believes this provision was repealed sub silentio by the 2001
amendments.
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Constitution, laws, or treaties of the United States.” Estelle v. M cGuire, 502
U.S. 62, 68 (1991). Easterwood now seeks permission from this Court to proceed
with his appeal.
II. Certificate of Appealability
A COA is a jurisdictional pre-requisite to our review. M iller-El v.
Cockrell, 537 U.S. 322, 336 (2003). W e will issue a CO A only if Easterwood
makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this showing, he must establish that “reasonable jurists
could debate whether . . . the petition should have been resolved [by the district
court] in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted). Insofar as the district court dismissed his habeas petition on
procedural grounds, Easterwood must demonstrate both 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.” Id. “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. W e review the district court’s factual findings for clear error and its
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legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.
2001).
Easterwood claims the district court erroneously applied the one-year
statute of limitations to his claim. The timeliness issue was raised by the State in
its response to Easterwood’s habeas petition. In his reply, Easterwood argued his
situation renders the statute of limitations inapplicable to his claim for two
reasons. He contended the application of the time-bar violates the Suspension
Clause, U.S. Const. art. I, § 9, cl. 2, the Constitution's prohibition on suspending
the writ. In the alternative, he asserted any limitations period should be equitably
tolled. The district court did not address these arguments in its order dismissing
Easterwood’s petition. However, the arguments are not persuasive.
Easterwood first posits the application of the one-year statute of limitations
to his claims constitutes a violation of the suspension clause because he is not
attacking his conviction. “W hether the one-year limitation period violates the
Suspension Clause depends upon whether the limitation period renders the habeas
remedy ‘inadequate or ineffective’ to test the legality of detention. The burden is
on the petitioner to demonstrate inadequacy and ineffectiveness.” M iller v. M arr,
141 F.3d 976, 977 (10th Cir. 1998) (citations omitted). Easterwood fails this
burden because he has declined to provide the benefit of argument or legal
authority for this proposition. “W e do not consider unsupported and undeveloped
issues.” M oore v. Gibson, 195 F.3d 1152, 1180 n.17 (10th Cir. 1999).
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Easterwood next suggests the statute of limitations should not be applied
because the reasons usually associated with the need for finality do not exist here.
However, he cites no legal precedent which rejects a clear Congressional mandate
for the time limitation of a claim merely because a court determines the situation
does not fit general considerations of finality. The U nited States Supreme Court
has “expressed a clear deference to the rules that Congress has fashioned
concerning habeas.” M iller, 141 F.3d at 978. Easterwood also claims the
Oklahoma Board of Pardon and Parole’s tw o-year delay in promulgating rules in
accordance with the Truth in Sentencing Act suggests we should consider 2003 as
the factual predicate for his claims. Consequently, his petition would be
considered timely filed. However, Easterwood makes no attempt to demonstrate
the promulgation of rules had any effect, let alone cause a delay, preventing the
timely filing of his petition.
Finally, Easterwood claims he is entitled to equitable tolling. “To be
entitled to equitable tolling, [Easterwood] must show ‘(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way’ and prevented timely filing.” Lawrence v. Florida, 127 S.Ct. 1079,
1085 (2007) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
“[E]quitable tolling should not be used to thwart the intention of Congress in
establishing a statute of limitations for habeas claims. Accordingly, we have
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limited equitable tolling of the one-year limitations period to ‘rare and
exceptional’ circumstances.” Burger, 317 F.3d at 1141.
Easterwood points to three factors to demonstrate the equities favor
consideration of his case. First, he argues his claim is akin to a claim of “actual
innocence” because a successful result on his claim will recognize he “has
satisfied the obligation on his sentence, and is currently innocent of any offense
that requires his continued imprisonment.” (R. Vol. I, Tab 9 at 5.) Easterwood
fails to recognize he is challenging his sentence, not his guilt. “‘A person cannot
be actually innocent of a noncapital sentence.’” Reid v. State of Okla., 101 F.3d
628, 630 (10th Cir. 1996) (quoting United States v. Richards, 5 F.3d 1369, 1371
(10th Cir.1993)). Easterwood was convicted of first degree murder and
sentenced to life imprisonment. His situation has not changed. Even if we did
equate his sentencing claim with actual innocence, Easterwood must still show
diligent pursuit of his rights or extraordinary circumstances. He has not done so.
Second, he claims the state has consistently asserted the matrix never
became law. He argues this position misled him somehow and therefore he
should not be penalized for believing these penal “experts.” (R. Vol. I, Doc. 5 at
6.) He argues the result is “the state can imprison someone indefinitely as long as
they keep them ignorant, confused and misled for at least a year.” (Id. at 5.) This
argument is easily rejected. Easterwood does not explain how he learned of the
state’s position prior to filing his petition nor does he identify any instance in
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which state or prison officials misled him or kept him ignorant or confused.
Adverse positions in legal proceedings are hardly extraordinary circumstances
sufficient to equitably toll a filing deadline.
Finally, Easterwood claims we should find there are rare and exceptional
circumstances in this case because no other inmate has managed to initiate
“proceedings of equal stature to Petitioner’s theories[.]” (Id. at 6.) W e decline to
comm ent on the “stature” of Easterwood’s theories other than to say he has failed
to demonstrate jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.
Easterwood’s request for a COA is DENIED and his application
DISM ISSED.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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