Garcia v. Shanks

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 9 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

RICKY R. GARCIA,

Petitioner-Appellant,

v. No. 02-2104

JOHN SHANKS, Warden;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,

Respondents-Appellees.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-97-1449-BB/KBM)

Submitted on the briefs:

William A. L’Esperance, Albuquerque, New Mexico, for Petitioner-Appellant.

Patricia A. Madrid, Attorney General; M. Victoria Wilson, Assistant Attorney
General, Albuquerque, New Mexico, for Respondents-Appellees.

Before MURPHY, BALDOCK, and O’BRIEN, Circuit Judges.

MURPHY, Circuit Judge.
 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

I. Introduction

Petitioner-appellant, Ricky R. Garcia, is a New Mexico prisoner currently

incarcerated in the state of California. Garcia filed a state habeas petition on April

23, 1997, one day before the expiration of the grace period established by this

court for state prisoners whose convictions became final before the effective date

of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Garcia’s state

petition was denied and the New Mexico Supreme Court denied his petition for a

writ of certiorari. Five days later, Garcia filed his federal habeas corpus petition

pursuant to 28 U.S.C. § 2254. The district court concluded that Garcia failed to

file his federal petition within the one-year statute of limitations for such petitions,

see 28 U.S.C. § 2244(d), and that he was not entitled to equitable tolling of the

one-year limitations period. Although the district court dismissed Garcia’s federal

petition as untimely, it granted him a certificate of appealability (“COA”) “on the

issue of how much time remains following the denial of a petition filed on the last

-2-
day of the grace period.” Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm the dismissal of Garcia’s federal habeas petition.

II. Background

In 1981, Garcia was convicted of killing an inmate and a corrections officer

while incarcerated in the maximum security area of the New Mexico State

Penitentiary. State v. Garcia, 664 P.2d 969 (N.M. 1983). Garcia’s convictions

and sentences were affirmed by the New Mexico Supreme Court on January 20,

1983. Id. at 979. The United States Supreme Court thereafter denied Garcia’s

petition for a writ of certiorari. Garcia v. New Mexico, No. 82-6424, 462 U.S.

1112 (June 6, 1983).

While Garcia’s appeal was pending in New Mexico state court, he pleaded

no contest to a charge of first degree murder and a charge of second degree

murder. These charges arose from the killings of two other inmates. Garcia did

not challenge either of these additional convictions or the sentences he received.

Further, Garcia did not file a federal habeas corpus petition challenging any of his

four murder convictions. 1 In 1993, Garcia was transferred from the New Mexico

1
In 1996, Garcia purported to file a federal habeas petition with the federal
district court for the District of New Mexico. The petition, however, was
construed as a 42 U.S.C. § 1983 federal civil rights complaint and was dismissed
by the court. On appeal, this court affirmed the dismissal. Garcia v. Hoover , No.
97-2375, 1998 WL 614673, at *1 (10th Cir. Sept. 9, 1998) (unpublished
disposition).

-3-
State Penitentiary to Pelican Bay State Prison in Crescent City, California pursuant

to the Interstate Corrections Compact.

In March 1997, the Habeas Corpus Rule Change Project (the “Project”)

operated by the New Mexico Public Defender’s Department, mailed information to

out-of-state prisoners, including Garcia, in an attempt to educate them about the

AEDPA and assist them in filing pro se state and federal habeas petitions. Garcia

asserts that he mailed a letter and a completed New Mexico state habeas petition to

the Project on April 13, 1997. The Project filed Garcia’s state petition on April

23, 1997.

The state district court dismissed Garcia’s petition on July 22, 1997 and the

New Mexico Supreme Court denied Garcia’s petition for a writ of certiorari on

November 5, 1997. The Project filed Garcia’s federal § 2254 petition on Monday,

November 10, 1997. The § 2254 petition states that the attorney for the Project

received the order of the New Mexico Supreme Court denying Garcia’s petition for

a writ of certiorari on Saturday, November 8.

In his § 2254 petition, Garcia raised challenges to all four of his

convictions. With respect to the two murder charges on which he went to trial,

Garcia asserted that he was denied the right to a fair trial with an impartial jury

and was denied his right to due process because the trial judge: (1) failed to

properly instruct the jury on the essential elements of the charges against him, (2)

-4-
allowed the dying declaration of one victim to be admitted, (3) admitted evidence

of his involvement in a prison gang, and (4) admitted other prejudicial evidence.

Garcia also argued that his pleas in the two other cases were not knowing and

voluntary and were the result of ineffective assistance of counsel.

Garcia’s § 2254 petition was referred to a magistrate judge who did not

analyze the substance of Garcia’s claims but recommended dismissing the petition

as untimely. The magistrate judge first discussed the one-year statute of

limitations in the AEDPA applicable to federal habeas corpus petitions filed by

persons in custody pursuant to a judgment of a state court. See 28 U.S.C. §

2244(d). This provision of the AEDPA took effect on April 24, 1996. This court

subsequently adopted a rule that petitioners whose convictions became final before

the effective date of the AEDPA had until April 24, 1997 to file their federal

habeas petitions. United States v. Hurst, 322 F.3d 1256, 1261 n.4 (10th Cir. 2003)

(en banc). Additionally, the one-year limitation period is tolled during the time a

“properly filed” state habeas corpus petition is “pending” before the state courts.

28 U.S.C. § 2244(d)(2). The magistrate judge reasoned that because Garcia filed

his state habeas petition on the last day of the one-year federal grace period, he

had but one day after the New Mexico Supreme Court denied his certiorari petition

to file his federal § 2254 habeas petition. Because the federal petition was filed

five days later, it was time-barred by 28 U.S.C. § 2244(d).

-5-
 The magistrate judge addressed and rejected Garcia’s argument that his state

habeas petition should be deemed filed on the date he mailed the petition from the

prison to the Project. The magistrate judge similarly rejected Garcia’s argument

that his state habeas petition remained pending until the Project received notice of

the New Mexico Supreme Court’s denial of certiorari. Finally, the magistrate

judge found no grounds for equitable tolling of the statute of limitations and

further concluded that Garcia had not diligently pursued his federal claims, thus

precluding equitable relief.

Garcia filed written objections to the magistrate’s recommended disposition.

The district court, however, adopted the findings and recommendation of the

magistrate judge and dismissed Garcia’s petition. The district court granted

Garcia a COA “on the issue of how much time remains following the denial of a

petition filed on the last day of the grace period” and this appeal followed.

III. Discussion

A. Standard of Review

In an appeal from the dismissal of a federal habeas corpus petition, this

court reviews a district court’s findings of fact for clear error and its conclusions

of law de novo. Davis v. Executive Dir. of Dep’t of Corr., 100 F.3d 750, 756 (10th

Cir. 1996). Specifically, we review de novo the district court’s denial of a habeas

-6-
petition based on § 2244(d). Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir.

2000).

B. Applicability of the Mailbox Rule

Garcia’s first contention is that his federal petition would be timely if he

were given the benefit of a prison mailbox rule. Under the federal mailbox rule, a

pro se prisoner’s cause of action is considered filed when the prisoner delivers the

pleading to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 276

(1988). According to Garcia, his state habeas petition should be considered filed

as of April 14, 1997, the date he mailed it from prison to the Project. Garcia

argues that if the mailbox rule is applied to his state habeas petition, the federal

limitations period would be tolled for an additional nine days and his federal

habeas petition would be timely. Garcia’s argument, however, has no merit.

This court has held that “state procedural law must govern when

determining whether a state petition is ‘properly filed’” and, consequently, “the

federal mailbox rule announced in Houston v. Lack does not apply to § 2244(d)(2)

for purposes of determining when the tolling period for a properly-filed state

petition begins.” Adams v. LeMaster, 223 F.3d 1177, 1181 (10th Cir. 2000).

Moreover, after reviewing New Mexico procedural law in Adams, we held that

“the New Mexico Supreme Court would side with those state courts relying on the

plain meaning of their respective state procedural rules to reject the prison

-7-
mailbox rule,” and stated that “[w]e are convinced New Mexico’s rules require, at

the very least, receipt by the clerk before a petition is filed.” Id. at 1182-83.

Garcia has not guided us to, nor have we found, New Mexico authority that is

contrary to our decision in Adams. Moreover, Garcia provides no evidence

indicating that the New Mexico district court received his petition any day other

than the uncontested date of filing by that court. Accordingly, we conclude that

Garcia’s state petition was “properly filed” for purposes of § 2244(d)(2) on April

23, 1996.

C. Applicability of a Notice Rule

Garcia next urges this court to adopt a “notice rule” and hold that a state

habeas petition is pending for purposes of § 2244(d)(2) until the petitioner or his

counsel receives notice of its denial by the state court. In Garcia’s case, the New

Mexico Supreme Court denied his petition for a writ of certiorari on November 5,

1997, but the Project did not receive the state court order until Saturday,

November 8, 1997. Gail Evans, an attorney with the Project, filed Garcia’s § 2254

petition on Monday, November 10.

Section § 2244(d)(2) clearly and unambiguously states that the federal

limitations period is tolled only during the time a properly filed state application

for collateral review is pending in the state court. This court has held that a New

Mexico state habeas petition is no longer “pending” for purposes of § 2244(d)(2)

-8-
once a petition for a writ of certiorari is disposed of by the state’s highest court.

See Barnett v. LeMaster, 167 F.3d 1321, 1323 (10th Cir. 1999) (holding that the

one-year limitations period was tolled “until the state supreme court denied

[petitioner’s] timely-filed petition for writ of certiorari”); Adams, 223 F.3d at 1180

(stating that “[petitioner’s] period of limitation was tolled from the time he filed

his second state petition until . . . the New Mexico Supreme Court denied

certiorari”). Garcia has not identified any provision in § 2244(d) or any legislative

history indicating Congress intended the term “pending” to include the time

necessary for a petitioner to receive notice of a state court’s decision. Because the

notice rule advocated by Garcia conflicts with the plain language of § 2244(d)(2),

we decline to adopt it. This conclusion is in accord with that of other circuits that

have refused to adopt a notice rule. See, e.g., Donovan v. Maine, 276 F.3d 87, 92

(1st Cir. 2002) (rejecting argument that petitioner’s state application was pending

until the date counsel received notice of its denial); Geraci v. Senkowski, 211 F.3d

6, 9 (2d Cir. 2000) (same).

Garcia’s state habeas petition was pending until the New Mexico Supreme

Court denied certiorari on November 5, 1997. The AEDPA limitations period then

began to run again. Because Garcia’s state habeas petition was filed on April 23,

1996, he had only one day after the New Mexico Supreme Court denied his

-9-
petition for a writ of certiorari to file his § 2254 petition. Because Garcia’s §

2254 petition was not filed until November 10, 1997, it is untimely.

IV. Conclusion

The judgment of the United States District Court for the District of New

Mexico dismissing Garcia’s § 2254 petition as untimely is affirmed. 2

2
The one-year federal limitations period found in § 2244 is not jurisdictional and
is subject to equitable tolling in appropriate cases. Miller v. Marr, 141 F.3d 976,
978 (10th Cir. 1998). However, we have limited equitable tolling of the
limitations period to “rare and exceptional circumstances.” Gibson v. Klinger,
232 F.3d 799, 808 (10th Cir. 2000) (quotation omitted). Moreover, “[equitable
tolling] is only available when an inmate diligently pursues his claims and
demonstrates that the failure to timely file was caused by extraordinary
circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th
Cir. 2000). The magistrate judge recommended rejecting Garcia’s argument that
he was entitled to equitable tolling, concluding, inter alia , that Garcia was not
diligent in pursuing post-conviction relief in the late 1980’s and early 1990’s.
Garcia did not challenge this conclusion in his written objections to the R&R.
Further, Garcia does not address this issue in his appellate brief. The issue,
therefore, is not properly before this court. Gaines-Tabb v. ICI Explosives, USA,
Inc. , 160 F.3d 613, 624 (10th Cir. 1998) (“[A]rguments not set forth fully in the
opening brief are waived.”); Moore v. United States , 950 F.2d 656, 659 (10th
Cir. 1991) (“Our waiver rule provides that the failure to make timely objection to
the magistrate's findings or recommendations waives appellate review of both
factual and legal questions.”).

-10-