FILED
United States Court of Appeals
Tenth Circuit
December 11, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ANTONIO LEON ELLIS,
Petitioner–Appellant,
No. 08-5119
v. (D.C. No. 4:07-CV-00505-GKF-FHM)
(N.D. Okla.)
JUSTIN JONES,
Respondent–Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.
Antonio Ellis requests a certificate of appealability (“COA”) following the
district court’s denial of his 28 U.S.C. § 2254 application for a writ of habeas
corpus based on actual innocence and ineffective assistance of counsel. The
district court denied Ellis’s application because it was time barred under
§ 2244(d)(1). For the same reason, we deny Ellis’s application for a COA.
Ellis pleaded guilty to one count of attempted robbery and two counts of
robbery with a firearm. A jury then convicted him of first degree murder.
Judgment and sentence were entered on November 30, 2004. 1 Ellis did not move
to withdraw his plea or file notice to appeal his conviction. Over a year later, on
June 7, 2006, he filed for post-conviction relief in state court. Both this and a
second application for state post-conviction relief were denied, and both denials
were affirmed by the Oklahoma Court of Criminal Appeals.
On September 6, 2007, Ellis filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254 in the United States District Court for the Northern
District of Oklahoma. The district court denied his petition as time barred, see
§ 2244(d)(1), considering and rejecting Ellis’s argument that the statute of
limitations should be tolled. Following the dismissal, Ellis moved for
reconsideration, reasserting that he was entitled to tolling due to his lack of
access to legal materials at Cimarron Correctional Facility. Construing this as a
Federal Rule of Civil Procedure Rule 59(e) motion, the court denied
reconsideration.
Because the district court denied his habeas petition and Ellis did not
receive a COA from that court, Ellis may not appeal the district court’s decision
absent a grant of a COA by this court. § 2253(c)(1)(A). To obtain a COA, Ellis
must make a “substantial showing of the denial of a constitutional right.”
§ 2253(c)(2). When the district court denies a habeas petition on procedural
1
In his federal habeas petition, Ellis incorrectly stated that he was
sentenced on November 23, the date of conviction. The district court echoed this
error.
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grounds without reaching the underlying constitutional claims, as it did here, a
petitioner is not entitled to a COA unless it can be shown 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.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). An appellate court has discretion to resolve
either the procedural or the substantive issue first. Id. at 485.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a
one-year statute of limitations on § 2254 habeas claims. § 2244(d)(1). In an
ordinary case such as this one, the period begins to run from “the date on which
the judgment became final by the conclusion of direct review or the expiration of
the time for seeking such review.” § 2244(d)(1)(A). Ellis’s judgment and
sentence were entered on November 30, 2004, and he brought no direct appeal.
Under Oklahoma law, Ellis had ten days to move to withdraw his plea or file a
notice to appeal his jury conviction. Clark v. Oklahoma, 468 F.3d 711, 713 (10th
Cir. 2006); see Okla. Stat. tit. 22, § 1051; Okla. Stat. tit. 22, Ch. 18, App., Rules
2.5(A), 4.2(A). Ellis did neither, and the statute of limitations began to run on
December 10, 2004. It expired on December 10, 2005. Thus, Ellis’s habeas
petition was time barred unless he is to be credited with more than 21 months of
tolling.
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Ellis argues the statute of limitations did not begin to run until he was
transferred to a correctional facility with a law library. As the district court did,
we liberally construe this argument, see Haines v. Kerner, 404 U.S. 519, 520
(1972), as urging that there was a state-created impediment preventing him from
filing under § 2244(d)(1)(B). Ellis cites Easterwood v. Champion, 213 F.3d 1321
(10th Cir. 2000), for the proposition that the AEDPA statute of limitations is
tolled until the relevant case law is available to the prisoner. Easterwood actually
stands for a much narrower proposition: when the factual predicate for a
prisoner’s claim appears in case law unavailable to him, the statute of limitations
is tolled until such case law becomes available. Id. at 1323. 2 That is not Ellis’s
situation; he asserts only that he was unfamiliar with the legal basis for his
claims. 3 To justify tolling under AEDPA, “[i]t is not enough to say that the
[correctional] facility lacked all relevant statutes and case law.” Miller v. Marr,
141 F.3d 976, 978 (10th Cir. 1998). Moreover, Ellis did not lack access to all
legal materials at Cimarron Correctional Facility because, as he acknowledges, he
had access to counsel. Under our case law, reasonable jurists could not debate
2
In Easterwood, a witness for the prosecution was later determined to be
unreliable by this Circuit. 213 F.3d at 1323.
3
Although Ellis includes a claim of actual innocence in his underlying
petition, he does not assert that he discovered the factual predicate for this claim
after the statute of limitations ran. Thus, he is not entitled to tolling under
§ 2244(d)(1)(D).
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whether Ellis’s lack of access to legal materials constituted a state-created
impediment entitling him to tolling of the AEDPA statute of limitations.
Although Ellis would be entitled to tolling during the pendency of his state
post-conviction proceedings, § 2244(d)(2), he did not file his first such
application until June 7, 2006, after the limitations period had already run. Thus,
he cannot benefit from tolling on this ground. Fisher v. Gibson, 262 F.3d 1135,
1142-43 (10th Cir. 2001).
Because jurists of reason would not find debatable the district court’s
conclusion that Ellis’s claim was time barred, Ellis’s application for a COA is
DENIED and his appeal is DISMISSED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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