Phillips v. Ferguson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 2 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

EVERETT PHILLIPS,

Petitioner-Appellant,
v.

JAMES FERGUSON, Warden, No. 97-8119
Wyoming Department of Corrections
State Penitentiary; WYOMING
ATTORNEY GENERAL,

Respondents-Appellees.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 97-CV-095)

Clifford J. Barnard, Boulder, Colorado, for Petitioner-Appellant.

Hugh L. Kenny, Senior Assistant Attorney General (William U. Hill, Attorney
General, with him on the brief) Cheyenne, Wyoming, for Respondents-Appellees.

Before EBEL and BRISCOE, Circuit Judges, and MARTEN, * District Judge.

EBEL, Circuit Judge.

*
Honorable J. Thomas Marten, District Court Judge, United States District
Court for the District of Kansas, sitting by designation.
 Habeas Petitioner-Appellant Everett Phillips asks this Court to find

unconstitutional under the Equal Protection Clause Wyoming’s five-year statute

of limitations on filing a petition for post-conviction relief. Phillips also appeals

the district court’s denial of his pro se motion for a continuance to file a

surrebuttal. We grant Phillips’ application for a certificate of appealability on

both issues; we grant Phillips’ Motion for Leave to Supplement Record on

Appeal; and we affirm the district court.

I. BACKGROUND

In 1987, Everrett Phillips was convicted and sentenced for kidnaping and

first-degree sexual assault. The Wyoming Supreme Court overturned his

convictions on the ground that the state violated Phillips’ right to a speedy trial.

See Phillips v. State, 774 P.2d 118 (Wyo. 1989). Phillips was subsequently

indicted on conspiracy to kidnap and commit first-degree sexual assault. On

February 21, 1990, a jury convicted Phillips of those conspiracy charges. See

Phillips v. State, 835 P.2d 1062, 1066 (Wyo. 1992). His motion for a new trial

was denied, and, on April 10, 1990, a Wyoming district court judge entered

judgment on the conviction and sentenced Phillips to twenty to thirty years in the

state penitentiary. Phillips appealed his conspiracy convictions to the Wyoming

Supreme Court. On June 11, 1992, the Wyoming Supreme Court affirmed

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Phillips’ conviction, see id. at 1074, and on July 9, 1992, the court issued a

mandate of affirmance.

Three years later, Phillips timely filed in the Third District Court for

Wyoming a state petition for a writ of habeas corpus (which is a different

remedial process than a Wyoming post-conviction petition). The district court

dismissed the petition in November 1995 for failing to challenge the jurisdiction

of the sentencing court, which is the only ground upon which Wyoming habeas

writs may be issued. See Parkhurst v. Shillinger, 128 F.3d 1366, 1367 n.2 (10th

Cir. 1997); see also Wyo. Stat. Ann. § 1-27-125. 1 On May 2, 1997, the Wyoming

Supreme Court rejected Phillips’ appeal. 2

Meanwhile, in March 1997 ! nearly seven years after the Wyoming trial

court convicted and sentenced Phillips, and over four-and-one-half years after the

Wyoming Supreme Court’s affirmed the conviction on direct appeal ! Phillips

1
Wyo. Stat. Ann. § 1-27-125 provides:

Certain proceedings not reviewable.
Habeas corpus is not permissible to question the correctness of the
action of a grand jury in finding a bill of indictment, or a petit jury in
the trial of a cause nor of a court or judge when acting within their
jurisdiction and in a lawful manner.
2
The Wyoming Supreme Court denied Phillips’ state habeas writ because
he failed “to raise any colorable question with respect to the legality of his
restraint or the jurisdiction of the district court to enter the particular judgment
and sentence underlying said restraint.”

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filed a post-conviction petition in a Wyoming district court. Phillips’ post-

conviction petition asserted only an ineffective assistance of appellate counsel

claim. 3

Wyoming requires all post-conviction petitions to be filed no more than

five years after the “judgment of conviction was entered.” Wyo. Stat. Ann. § 7-

14-103(d). The state moved to dismiss Phillips’ post-conviction claim as

untimely, arguing that the phrase “judgment of conviction” means the judgment as

entered by the district court. Phillips contended that the phrase “judgment of

conviction” means the date the Wyoming Supreme Court issues the mandate of

affirmance. Phillips argued that to read “judgment of conviction” to mean the

date judgment is entered by the district court judge would place § 7-14-103(d) in

violation of the Equal Protection Clause of the Fourteenth Amendment because

“similarly situated defendants” would be treated “unequally because the Wyoming

Supreme Court takes different amounts of time to decide appeals.” The Wyoming

Supreme Court, for example, could take more than five years to decide one

defendant’s case, thereby precluding any post-conviction review of an ineffective

3
The post-conviction petition also asked permission to amend the initial
petition to include a Brady v. Maryland claim if after an evidentiary hearing the
Court found no ineffective assistance and excused counsel’s performance because
the state had wrongfully withheld evidence from the defendant. The court never
granted the antecedent evidentiary hearing for the ineffective assistance claim nor
made such an antecedent finding.

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assistance of appellate counsel claim, yet decide another defendant’s appeal

within one year, comfortably allowing time for a post-conviction petition. The

Wyoming district court adopted the state’s position and held that the phrase

“judgment of conviction” means the date the district court judge enters judgment

and not the date the Wyoming Supreme Court issues a mandate of affirmance.

Phillips’ petition for post-conviction relief was accordingly dismissed as

untimely. The Wyoming Supreme Court rejected Phillips’ petition for writ of

review on the matter.

On April 22, 1997, Phillips, with the assistance of counsel, filed a § 2254

federal habeas petition in the United States District Court for the District of

Wyoming raising several issues, including ineffective assistance of appellate

counsel. The state moved to dismiss the federal habeas petition in its entirety on

the ground that all of Phillips’ claims were procedurally defaulted in state court

pursuant to Wyoming’s independent and adequate post-conviction statute of

limitations. Following regularly scheduled briefing, on October 24, 1997, Phillips

filed a pro se “Motion for Extension of Time” to file a pro se rebuttal to the

state’s reply. On November 3, 1997, the district court denied Phillips’ writ of

habeas corpus, finding that Phillips had procedurally defaulted his claims in state

court and that review of the record demonstrated that he could not, as a matter of

law, show “cause and prejudice” to excuse the default, nor did petitioner make a

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“colorable showing of factual innocence.” The court also denied Phillips’

“Motion for Extension of Time” without comment. This appeal followed.

II. STANDARDS OF REVIEW

This Court has jurisdiction based on 28 U.S.C. § 2253, which permits

review of final decisions made by United States District Courts in habeas

proceedings. In a federal habeas corpus action brought by a state prisoner, we

review de novo the legal conclusions of the district court. See Davis v. Executive

Dir. of Dep’t of Corrections, 100 F.3d 750, 756 (10th Cir. 1996). Questions of

whether state post-conviction procedures may be challenged as unconstitutional in

a § 2254 action, and, if so, whether Wyoming’s post-conviction procedures are

constitutional are pure questions of law that appellate courts review de novo.

Earnest v. Dorsey , 87 F.3d 1123, 1128 (10th Cir. 1996).

III. DISCUSSION

A. Federal Habeas Review of Constitutional Challenges to State Collateral

Review Procedures

As a preliminary matter, we must decide whether challenges to the

constitutionality of state post-conviction procedures are cognizable in federal

habeas corpus. The federal courts on habeas review cannot strike down as

unconstitutional a state post-conviction procedural rule. See Sellers v. Ward, 135

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F.3d 1333, 1339 (10th Cir.) (when petitioner asserts no constitutional trial error,

but only error in the state post-conviction procedure, no relief can be granted in

federal habeas corpus), cert. denied, 119 S. Ct. 557 (1998); Steele v. Young, 11

F.3d 1518, 1524 (10th Cir. 1993); Hopkinson v. Shillinger, 866 F.2d 1185, 1218-

19, reh’g granted on other grounds, 888 F.2d 1286 (10th Cir. 1989) (en banc),

overruled on other grounds by Sawyer v. Smith, 497 U.S. 227 (1990). However,

although the federal courts are unable to strike down state collateral-review

procedural rules in a habeas corpus action, federal courts are not precluded from

considering the adequacy of a state’s collateral-review process in the context of a

federal habeas challenge to an underlying state conviction. In that context, if the

state asserts its post-conviction procedural rules as an independent and adequate

state procedural bar, the federal courts are required to consider the adequacy of

the state’s post-conviction procedural remedy. And, if it is determined that the

state post-conviction procedure is unconstitutional, then such procedures would

not, in most instances, be regarded as an adequate state procedural bar to habeas

consideration of the underlying conviction. See Klobuchir v. Commonwealth of

Pennsylvania, 639 F.2d 966, 971 n.13 (3d Cir. 1991) (“To constitute an adequate

and independent state ground, the [Pennsylvania Supreme Court’s] interpretation

of [the Pennsylvania Rules of Criminal and Appellate Procedure] had to be

constitutionally sound . . .”); see also Nguyen v. Reynolds, 131 F.3d 1340, 1346

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(10th Cir. 1997) (state procedural rule cannot bar a petitioner from raising a

substantive due process claim of incompetence in a collateral proceeding), cert.

denied, 119 S. Ct. 128 (1998); Sena v. New Mexico State Prison, 109 F.3d 652,

654 (10th Cir. 1997) (same); Reynolds v. Berry , 146 F.3d 345, 347 (6th Cir.

1998) (“The adequacy of the state ground is determined by examining the state’s

legitimate interests in the procedural rule in light of the federal interest in

considering federal claims.”); Smart v. Scully, 787 F.2d 816, 819-20 (2d Cir.

1986) (state court’s procedurally based ruling is inadequate where “the state has

no substantial or legitimate interest” in the procedural rule); Spencer v. Kemp,

781 F.2d 1458, 1470 (11th Cir. 1986) (en banc) (“It is a dominant theme of the

Supreme Court case law . . . that a federal habeas petitioner shall not be denied

federal review of a federal constitutional claim on the basis of an asserted

procedural ground that is manifestly unfair in its treatment of that claim.”);

Johnson v. Muncy, 830 F.2d 508, 512-14 (4th Cir. 1987) (same); 4 cf. Reece v.

Georgia, 350 U.S. 85, 89-90 (1955) (consistently followed Georgia procedural

4
See also English v. Cody, 146 F.2d 1257, 1261 (10th Cir. 1998)
(recognizing “the constitutional imperative that this court disregard a state
procedural bar for the review of ineffective assistance claims unless the state
procedure in question adequately protects a criminal defendant’s ability to
vindicate his or her constitutional right to the effective assistance of counsel”)
(interpreting Kimmelman v. Morrison, 477 U.S. 365 (1986); Osborn v. Shillinger,
861 F.2d 612 (10th Cir. 1988); Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir.
1994)).

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rule that required defendant to challenge the racial composition of the grand jury

before indictment did not foreclose federal review of that issue because the rule

violated due process) (direct review case). 5

Accordingly, Phillips’ equal protection challenge to Wyoming’s post-

conviction statute of limitations, insofar as it bears on the state’s assertion of an

adequate state procedural bar, is a cognizable claim in federal habeas.

B. The “Adequacy” of Wyo. Stat. Ann. § 7-14-103(d)

Although this court on federal habeas may consider a constitutional

challenge to Wyoming’s collateral-review statute of limitations in order to assess

its adequacy, we hold Wyo. Stat. Ann. § 7-14-103(d) to be an “adequate” state

procedural rule.

Statutes of limitations carry a strong presumption of constitutionality.

Brubaker v. Cavanaugh, 741 F.2d 318, 321 (10th Cir. 1984). Phillips, however,

argues that Wyoming’s statute of limitations for post-conviction review violates

the Equal Protection Clause because the statute allegedly (1) burdens the

“fundamental right of state prisoners to raise an ineffective assistance of appellate

5
“Adequacy” determinations in direct review cases are relevant in
determining “adequacy” in federal habeas cases, see Harris v. Reed, 489 U.S. 255,
262 (1989), even though the basis for employing the doctrines in both contexts is
not identical, see Coleman v. Thompson, 501 U.S. 722, 729-31 (1991).

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counsel claim” and is not narrowly tailored, and (2) is unequal as applied. We

find neither of these arguments persuasive.

While there is a fundamental right to effective assistance of appellate

counsel on a defendant’s first appeal as of right, see Evitts v. Lucey, 469 U.S.

387, 397 (1985), Phillips has failed to cite any case law, nor have we found any,

establishing a fundamental right to raise an ineffective assistance of appellate

counsel claim on state post-conviction review. Even assuming, arguendo, such a

fundamental right exists, the Wyoming statute of limitations imposes no

impermissible burden. Under Wyo. Stat. Ann. § 7-14-103(d), Phillips had four

and one-half years after the Wyoming Supreme Court affirmed his conviction to

file a post-conviction appeal. Four and one-half years is ample time for Phillips

to obtain new counsel (which he did) for collateral review in order to pursue an

ineffective assistance of appellate counsel claim. Cf. Jackson v. Shanks, 143 F.3d

1313, 1319 (10th Cir.) (finding meaningful review of an ineffective assistance

claim denied where the criminal defendant had no “opportunity to consult with

new counsel to ascertain whether counsel in his direct criminal proceedings

performed adequately or develop facts relating to his counsel’s performance”),

cert. denied, 119 S. Ct. 378 (1998). Four and one-half years is also ample time

for collateral review counsel to recognize appellate counsel’s errors and evaluate

appellate counsel’s professional performance.

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 We also reject Phillips’ claim that the application of Wyoming’s law denies

him the equal protection of law. The Wyoming statute of limitations applies

equally to all Wyoming defendants. No post-conviction petition can be filed by

any Wyoming defendant five years after the district court enters judgment of a

conviction. Phillips objects to this conclusion by citing to other states’ post-

conviction statute of limitations, but the fact that other states have other post-

conviction statutes of limitations for their prisoners does not render Wyoming’s

law unequal as applied to its own prisoners. In sum, the Wyoming post-

conviction statute of limitations does not violate the Equal Protection Clause, and

the state has relied upon an adequate state ground to establish Phillips’ procedural

default.

Phillips argues in the alternative that his state procedural default should be

excused to prevent a fundamental miscarriage of justice. However, the

fundamental miscarriage of justice exception is an “extremely narrow exception,

implicated only in < an extraordinary case, where a constitutional violation has

probably resulted in the conviction of one who is actually innocent.’” Ballinger

v. Kerby, 3 F.3d 1371, 1375 (10th Cir. 1993) (quoting Murray v. Carrier, 477 U.S.

478, 496 (1986)). To prevail, Phillips must identify evidence that affirmatively

demonstrates his innocence. See Schlup v. Delo, 513 U.S. 298, 327 (1995). A

criminal defendant is required to provide evidence that does more than simply

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“undermine the finding of guilt against” him or her. Ballinger, 3 F.3d at 1375.

After carefully reviewing the record, we conclude that Phillips has not presented

us with evidence of actual innocence establishing that “it is more likely than not

that no reasonable juror would have convicted him in light of the new evidence,”

Schlup, 513 U.S. at 327, particularly given testimony by the victim that details

Phillips’ involvement in the crime. 6

Finding no fundamental miscarriage of justice, and because Phillips failed

to assert “cause and prejudice” for his state default, the district court correctly

held that it was barred from considering Phillips’ habeas petition on the merits.

C. The District Court’s Denial of Phillips’ “Motion for Extension of Time” to

File a Surrebuttal

Before the district court dismissed Phillips’ habeas petition, Phillips had

filed a motion for a continuance for more time to file a surrebuttal. Phillips

contends on appeal that he wanted more time to file a surrebuttal in order to

present to the court additional evidence of factual innocence. The district court

6
Phillips alleges that the victim’s testimony is inconsistent with prior
statements and testimony given by the victim. While inconsistent testimony casts
doubt on the testimony of the victim, inconsistent testimony does not show that
Phillips was actually innocent of the crime. See Ballinger, 3 F.3d. at 1375
(finding actual innocence not established with evidence that only “casts doubt
upon the testimony of the [criminal defendant’s] primary accuser”).

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denied the continuance and we find no error. “[B]road discretion must be granted

trial courts on matters of continuances.” Morris v. Slappy, 461 U.S. 1, 11 (1983);

see also United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990). “A trial

judge’s decision to deny a motion for a continuance constitutes an abuse of

discretion only if the denial was < arbitrary or unreasonable and materially

prejudiced the [defendant].’” Rivera, 900 F.2d at 1475 (quoting United States v.

West, 828 F.2d 1468, 1469 (10th Cir. 1987)). The district court’s denial of

Phillips’ motion was neither arbitrary nor unreasonable, particularly since

regularly scheduled briefing established by the local rules does not include the

right to file a surrebuttal. See D. Wyo. R. 7.1. Moreover, Phillips cannot

establish that the denial of the continuance was prejudicial. In rejecting the

fundamental miscarriage of justice exception to procedural default, we already

considered the evidence Phillips wanted to include in his surrebuttal and

concluded that it fails to establish that it is more likely than not that “no

reasonable juror” would have found Phillips guilty beyond a reasonable doubt.

Schlup, 513 U.S. at 327. Thus, Phillips suffered no material prejudice from the

district court’s refusal to grant a continuance.

The district court’s dismissal of the motion for a writ of habeas corpus and

denial of motion to extend time are AFFIRMED.

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