FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 13, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
BIGLER JOBE STOUFFER, II,
Petitioner - Appellant,
No. 14-7006
v. (D.C. No. 6:12-CV-00329-RAW-KEW)
(E. D. Oklahoma)
ANITA TRAMMELL, Warden,
Respondent - Appellee.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
Petitioner and appellant, Bigler Jobe Stouffer, II, a state prisoner
proceeding pro se, seeks a Certificate of Appealability (“COA”) to enable him to
appeal the district court’s dismissal of his amended petition for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2241. Having concluded that he fails to meet the
standards for issuance of a COA, we deny Mr. Stouffer’s request for a COA and
dismiss this matter.
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
In 1985, Mr. Stouffer was convicted of first degree murder and of shooting
with intent to kill. He was sentenced to death on the first conviction and life
imprisonment on the second. See Stouffer v. Reynolds, 168 F.3d 1155, 1158
(10th Cir. 1999). In 2000, we affirmed the grant of habeas relief. See Stouffer v.
Reynolds, 214 F.3d 1231, 1232 (10th Cir. 2000). Mr. Stouffer was retried in
February 2003 and a jury again found him guilty of first degree murder and
shooting with intent to kill. See Stouffer v. State, 147 P.3d 245, 255-56 (Okla.
Crim. App. 2006). He was sentenced to death for the first offense and a
consecutive sentence of 100 years’ imprisonment for the second offense. He is
currently awaiting execution.
The district court below characterized Mr. Stouffer’s claims in the instant
habeas petition as “vague, unclear and repetitive” but discerned the following
grounds for Mr. Stouffer’s petition:
Ground I: Petitioner’s Eighth Amendment right to be free from cruel
and unusual punishment is deliberately ignored by respondent’s
unauthorized enforcement of Okla. State. tit. 57, § 138/OP-060107,
Class Level Systems on death-sentenced petitioner.
Ground II: Petitioner’s Fourteenth Amendment rights to due process
and for equal protection are withheld or denied by respondent’s
unauthorized enforcement of Okla. Stat. tit. 57, § 138/OP-060107
upon death-sentenced petitioner.
The court further noted:
Petitioner specifically challenges respondent’s legal authority
to (1) initially commit death-sentenced petitioner into the class level
system, OP-060107, (2) the prefunctory [sic] evaluations therein, and
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(3) the indefinite withholding/denials of petitioner’s rights,
privileges, and immunities, without providing petitioner a meaningful
mechanism to receive the fundamental elements of due process and
finality.
Opinion & Order at 1-2; R. Vol. 1 at 62-63. 1
Mr. Stouffer apparently seeks reversal and expungement of all prior
enforcement of Okla. Stat. tit., § 138/OP-060107 against him.
The Warden/Respondent sought dismissal of the petition on various
grounds, one of which was that Mr. Stouffer’s petition was filed beyond the one-
year statute of limitations imposed by the Antiterrorism and Effective Death
Penalty Act of 1996, 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. The limitation period shall run from the
latest of . . .
1
Mr. Stouffer refers to Okla. Stat. tit. 57, § 138(A), which provides in
pertinent part: “[E]very inmate of a state correctional institution shall have their
term of imprisonment reduced monthly, based upon the class level to which they
are assigned . . . . Each earned credit is equivalent to one (1) day of incarceration
. . . .” The statute directs the Oklahoma Department of Corrections (“ODOC”) to
“develop a written policy and procedure whereby inmates shall be assigned to one
of four class levels . . . .” Okla. Stat. tit. 57, § 138(B). In one of the many prior
proceedings in our court involving Mr. Stouffer, we described Mr. Stouffer’s
situation as follows: “The ODOC has developed an internal regulation pursuant
to which inmates are assigned to a class level which determines the rate at which
credits are earned and the degree to which privileges are afforded. See OP-
060107(II). On August 1, 2007, Stouffer was demoted from Level 4 to Level 1.
He claims this demotion resulted in the loss of earned credits and the loss of his
ability to earn such credits.” Stouffer v. Workman, No. 09-7029, slip op. at 2-3
(10th Cir. Oct. 8, 2009) (unpublished).
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(D) 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). As the district court correctly noted, the one-year
period also applies to § 2241 habeas corpus actions. Burger v. Scott, 317 F.3d
1133, 1138 (10th Cir. 2003).
Mr. Stouffer claims he is entitled to relief because he has been sentenced to
death and, therefore, the state statute concerning earned credits does not apply to
him. The district court determined that “[p]ursuant to 28 U.S.C. § 2244(d)(1)(D),
the limitations period began to run when he discovered or could have discovered
the factual predicate of his claim. [Mr. Stouffer] asserts in his amended petition
that he has been raising this issue in litigation as far back as 2006.” Opinion &
Order at 2; R. Vol. 1 at 63 (citing Amended Habeas Petition at 2; R. Vol. 1 at 20).
Accordingly, “[b]ased on his own statement, [Mr. Stouffer’s] one-year limitations
has expired.” Id.
The district court also determined that, because Mr. Stouffer did not
diligently pursue his claim, he was not entitled to application of the doctrine of
equitable tolling. Equitable tolling is available only in “rare and exceptional
circumstances.” Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007). A
petitioner carries the burden to show that equitable tolling is appropriate because
(1) “he has been pursuing his rights diligently,” and (2) “some extraordinary
circumstance stood in his way.” Lawrence v. Florida, 549 U.S. 327, 336 (2007).
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“[F]ailure to timely file [must be] caused by extraordinary circumstances beyond
his control,” Burger, 317 F.3d at 1141, and “[a]n inmate bears a strong burden to
show specific facts to support his claim of extraordinary circumstances and due
diligence.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). The district
court dismissed this argument as follows:
Petitioner has filed two responses to the motion, both alleging
this action is not time-barred. Petitioner admits he has had previous
administrative actions concerning this issue and contends each had a
separate limitations period. The issue, however, is when he first
discovered that Okla. Stat. tit. 57, § 138/OP-060107, Class Level
Systems, was wrongfully being applied to him. His separate
administrative appeals on this same issue did not restart the one-year
limitation. Furthermore, petitioner has been challenging the
application of Okla. Stat. tit. 57, § 138, to him, as a death-sentenced
prisoner, as early as 2008. See Stouffer v. Sirmons, No. CIV-08-
156-RAW-KEW (E.D. Okla. Apr. 28, 2008); Stouffer v. Workman,
No. CIV-10-298 (E.D. Okla. Aug. 9, 2010); Stouffer v. Workman,
No. 10-443 (E.D. Okla. Nov.22, 2010).
Opinion & Order at 3; R. Vol. 1 at 64. 2
A state prisoner must obtain a COA before pursuing a habeas petition.
Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009); 28 U.S.C.
§ 2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial
showing of the denial of a constitutional right,” which is accomplished when an
2
The Warden/Respondent made additional arguments in support of her
motion to dismiss. She argued that Mr. Stouffer was not properly before the
court, inasmuch as he was not challenging the legality of his incarceration and
was therefore not entitled to habeas relief, and she argued that his petition was an
improper successive one. We need not address those arguments, but simply note
that Mr. Stouffer’s petition faced many barriers.
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applicant shows “that reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted). An applicant
denied habeas relief on procedural grounds “must also show ‘that jurists of reason
would find it debatable . . . whether the district court was correct in its procedural
ruling.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008 ) (quoting
Slack, 529 U.S. at 484).
As indicated, the district court thoroughly explained why Mr. Stouffer’s
petition is time-barred and not eligible for equitable tolling. No reasonable jurist
could dispute the propriety of that conclusion.
For the foregoing reasons, we DENY Mr. Stouffer a COA and DISMISS
this matter.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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