Perryman v. Workman

FILED
United States Court of Appeals
Tenth Circuit

September 18, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court

FO R TH E TENTH CIRCUIT

K EN N ETH D . PER RY M A N ,

Petitioner-A ppellant,

v. No. 07-7036
(D.C. No. 06-cv-92-JHP-RAW )
RANDALL W ORKM AN, W arden, (E.D. Okla.)

Respondent-Appellee.

OR DER DENY ING CERTIFICATE O F APPEALABILITY *

Before H ENRY, TYM K O VICH , and H O LM ES, Circuit Judges.

Petitioner-Appellant Kenneth D. Perryman, an Oklahoma state prisoner

appearing pro se, seeks a certificate of appealability (“COA”) in order to

challenge the district court’s dismissal of his habeas petition as time-barred. See

28 U.S.C. 2253(c)(1) (requiring a COA before prisoner may appeal the dismissal

*
This order and judgment is not binding precedent, except under the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. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
of a habeas petition). W e have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).

Reviewing M r. Perryman’s filings liberally, 1 we hold that no reasonable jurist

could conclude that the district court’s dismissal on procedural grounds was

incorrect. See Slack v. M cDaniel, 529 U.S. 473, 484 (2000). Accordingly, we

D EN Y M r. Perryman’s application for a COA and DISM ISS his appeal.

I. BACKGROUND

On October 21, 1993, a jury found M r. Perryman guilty of two counts of

lewd molestation and one count of forcible sodomy. The District Court of

Okfuskee County sentenced M r. Perryman to ninety-nine years imprisonment for

each count, to be served consecutively. The Oklahoma Court of Criminal Appeals

affirmed the judgment and sentence on August 17, 1995 in Perryman v. State, No.

F-93-1351. No petition for w rit of certiorari was filed.

On April 19, 2004, M r. Perryman filed a motion in the United States

District Court for the N orthern D istrict of O klahoma which was construed as a

petition for writ of habeas corpus under 28 U.S.C. § 2254. W hen M r. Perryman

failed to amend his petition to clarify his intentions, as ordered by the court, the

Northern District dismissed his action without prejudice for failure to prosecute

on April 20, 2005. M eanwhile, M r. Perryman filed an application for post-

1
Because M r. Perryman is proceeding pro se, we review his pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v.
U. S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).

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conviction relief in the Okfuskee County District Court on July 14, 2004. The

district court denied the application on the grounds that failure to raise the issues

on direct appeal constituted waiver. The Oklahoma Court of Criminal Appeals

affirmed in Perryman v. State, No. PC-2005-929 (Okla. Crim. App. Dec. 15,

2005).

On M arch 3, 2006, M r. Perryman filed a petition for writ of habeas corpus

under 28 U.S.C. § 2254 in the United States District Court for the Eastern District

of Oklahoma stating fourteen grounds for relief, ranging from ineffective

assistance of counsel to judicial and prosecutorial misconduct. 2 On M arch 30,

2
The grounds for relief which appear in the petition are as follows: (1)
state court denial of post-conviction relief violates the First A mendment right to
petition for redress of grievances, (2) conviction for multiple counts under a
single indictment or information violates the Fifth A mendment protection against
double jeopardy and refusal to hear the merits of that issue violates the Fourteenth
Amendment Due Process Clause, (3) state court refusal to rule on ineffective
assistance claims was erroneous because these claims were not raised for the first
time on appeal, (4) failures by counsel on direct appeal constitute ineffective
assistance of counsel in violation of the Sixth Amendment, (5) the 297 year
sentence is excessive in relation to the crimes of conviction in violation of the
Eighth Amendment prohibition on cruel and unusual punishment, (6) judicial
response to a jury note requesting clarification without first consulting defense
counsel constitutes judicial misconduct, (7) judicial refusal in front of the jury to
recuse after declining to decrease bail was proof of judicial bias, (8) testimony by
the state witnesses was unreliable and failed to demonstrate guilt beyond a
reasonable doubt, (9) the minimally trained state investigator used improperly
suggestive questioning to elicit the child’s testimony against defendant, (10) the
judge improperly permitted inconsistent testimony to proceed and remain on the
record, (11) the prosecutor committed misconduct during closing argument by
exciting societal alarm, improperly drawing attention to the absence of testimony,
and personally commenting on the evidence, (12) the judge erred by permitting
(continued...)

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2007, the district court dismissed the petition. M r. Perryman filed an application

for a COA on July 16, 2007. The application relies on the same fourteen

allegations which appeared in his § 2254 petition.

II. D ISC USSIO N

M r. Perryman’s petition is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, issuance of a COA is a

jurisdictional prerequisite to appealing the dismissal of a habeas petition. 28

U.S.C. § 2253(c)(1); M iller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). In order

to obtain a COA, M r. Perryman must make “a substantial showing of the denial of

a constitutional right.” 28 U.S. C. § 2253(c)(2). The Supreme Court has clarified

that, where as here the district court denies a habeas petition on procedural

grounds without reaching the merits of the underlying constitutional claims, a

petitioner must show that reasonable jurists would find debatable both (1) whether

the petition states a valid claim of the denial of a constitutional right, and (2)

whether the district court was correct in its procedural ruling. Slack, 529 U.S. at

484. The Supreme Court also has instructed courts to resolve the procedural issue

first. Id. at 485 (citing Ashwander v. TVA, 297 U.S. 288, 347 (1936)).

2
(...continued)
prosecution under one information of crimes that were not part of the same
transaction, (13) the judge erred in refusing to instruct the jury on the need for
corroboration of the victim’s testimony due to inconsistencies, and (14) the
judge’s failure to permit defendant to address the court before sentencing violated
the right to a fair trial.

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 The procedural bar in this case is AEDPA ’s one-year statute of limitations

which begins on the latest of (1) the date the judgment becomes final, (2) the date

on which an impediment created by the state in violation of the Constitution is

removed, (3) the date on which the right was newly recognized by the Supreme

Court, or (4) the date on which the factual predicate of the claims presented could

have been discovered through due diligence. See 28 U.S.C. § 2244(d)(1)(A)-(D ).

After losing his state appeal on August 17, 1995, M r. Perryman’s conviction

became final on November 15, 1995, when the ninety-day period for his

certiorari petition to the United States Supreme Court expired. However, because

his conviction was final before AEDPA went into effect, the starting date for the

limitations period is April 24, 1996, the day the statute went into effect. Hoggro

v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998). Thus, M r. Perryman had until

April 24, 1997, to collaterally challenge his conviction and sentence. However,

M r. Perryman did not file his § 2254 habeas petition until M ay 21, 2006— well

after the limitations period had expired.

M r. Perryman is not eligible for statutory tolling with respect to the period

during which his state post-conviction claims were pending. Although “[t]he time

during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending shall

not be counted toward any period of limitation,” 28 U.S.C. § 2244(d)(2), M r.

Perryman did not seek post-conviction relief until July 14, 2004— more than

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seven years after the end of the limitations period. A collateral petition filed in

state court after the limitations period has expired does not serve to toll the

statute of limitations. Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).

Equitable tolling of § 2244(d)(1)’s limitations period is also unavailable

here. It is available “only in rare and exceptional circumstances” such as actual

innocence or w hen uncontrollable circumstances prevent timely filing. York v.

Galetka, 314 F.3d 522, 527 (10th Cir. 2003). A petitioner must have made “a

diligent effort to pursue his habeas claims.” M r. Perryman’s claims that he was

delayed in receiving the trial record are insufficient to explain his more than

seven year delay.

Consequently, the district court correctly concluded that M r. Perryman’s

habeas petition is time-barred. Accordingly we DENY his application for a COA

and DISM ISS his appeal. Slack, 529 U.S. at 484 (“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.”).

Entered for the Court

Elisabeth A . Shumaker, Clerk

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