FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS December 6, 2017
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
CHARLIE M. MILTON, JR.,
Petitioner - Appellant,
v. No. 17-6130
(D.C. No. 5:16-CV-01469-F)
JOE ALLBAUGH, (W.D. Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
In this appeal, pro se 1 Petitioner-Appellant Charlie M. Milton, Jr., a state
prisoner, seeks a certificate of appealability (“COA”) in order to challenge the
district court’s denial of the habeas petition he brought under 28 U.S.C. § 2254.
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G).
The case is therefore ordered submitted without oral argument. This order is not
binding precedent except under the doctrines of law of the case, res judicata, and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 F ED . R. A PP . P. 32.1 and 10 TH C IR . R. 32.1.
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Because Mr. Milton appears in these proceedings without counsel,
we construe his pleadings liberally, see Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam), but stop short of acting as his advocate, see United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
He also seeks to proceed in forma pauperis. Exercising jurisdiction under 28
U.S.C. § 1291, and for the reasons that follow, we deny Mr. Milton’s request for
a COA, dismiss the matter, and deny his application to proceed in forma
pauperis.
I
Mr. Milton was charged in state court in Oklahoma County, Oklahoma with
four drug-related crimes: trafficking in cocaine base; trafficking in cocaine;
possession of drug proceeds; and possession of marijuana, a controlled substance.
On January 24, 2014, Mr. Milton pleaded guilty to two counts of possession of a
controlled substance with intent to distribute, and to the possession of drug
proceeds and marijuana charges. He was then sentenced to a term of thirty years’
imprisonment on the first count, ten years’ imprisonment on the second, and a
five year term and fine for the final two charges. Mr. Milton claimed in his
habeas petition that his sentences are set to run concurrently. Mr. Milton did not
seek to withdraw his plea or file an appeal and his conviction became final ten
days later, on February 3, 2014. On November 5, 2014, Mr. Milton filed a
“Motion to Amend Information on all Counts with A[n] Amend J/S Its been
Newly Discovered” (“Motion to Amend”). Dist. Ct. Doc. 10, Ex. 5, at 1 (Br. in
Supp. of Mot. to Dismiss Time Barred Pet., filed Mar. 1, 2017). An Oklahoma
court denied this motion on March 2, 2015. Mr. Milton filed the habeas petition
that forms the basis of this case on December 23, 2016. See R. at 5 (Pet. for Writ
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of Habeas Corpus under 28 U.S.C. § 2254, dated Dec. 23, 2016).
Mr. Milton’s habeas petition asks the court “[t]o modify the 30-year
sentence to a 10[-]year sentence or vacate my sentence.” Id. at 18. It asserts five
grounds justifying relief: (1) ineffective assistance of counsel; (2) “an illegal
statute”; (3) “time barred”; (4) “the merits of the case”; and (5) double jeopardy.
Id. at 7. The Oklahoma Attorney General filed a motion to dismiss Mr. Milton’s
habeas petition as time-barred under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), 28 U.S.C. § 2244. The district court granted this
motion, adopting the magistrate judge’s recommendation. The district court also
denied Mr. Milton a COA. See R. at 134 (Dist. Ct. Order, dated Apr. 25, 2017).
Mr. Milton now appeals, seeking a COA to challenge the dismissal of his habeas
petition.
II
A prisoner may not appeal the denial of relief under § 2254 without a COA.
See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also Beylik v. Colorado,
377 F. App’x 796, 797 (10th Cir. 2010) (unpublished) (“The granting of a COA is
a jurisdictional prerequisite to [a prisoner’s] appeal from the denial of his § 2254
action.”). We may issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also
Miller-El, 537 U.S. at 349–50; Dockins v. Hines, 374 F.3d 935, 936 (10th Cir.
2004). Where, as here, the district court denies a habeas petition on procedural
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grounds such as untimeliness, the applicant faces a “double hurdle.” Coppage v.
McKune, 534 F.3d 1279, 1281 (10th Cir. 2008). “Not only must the applicant
make a substantial showing of the denial of a constitutional right, but he must
also show ‘that jurists of reason would find it debatable . . . whether the district
court was correct in its procedural ruling.’” Id. (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
III
Mr. Milton argues that he is entitled to both statutory and equitable tolling
of AEDPA’s limitations period. However, neither form of tolling is appropriate
here.
A
AEDPA imposes a one-year statute of limitations on filing a § 2254 habeas
petition. 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins
running from the date on which the judgment against the state prisoner became
final “by the conclusion of direct review or the expiration of the time for seeking
such review.” 28 U.S.C. § 2244(d)(1)(A); accord Woodward v. Cline, 693 F.3d
1289, 1292 (10th Cir. 2012) (“The most common date that starts the [AEDPA
limitations period] clock is” the date on which the state-court judgment became
final). AEDPA also provides that “[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
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limitation under this subsection.” 28 U.S.C. § 2244(d)(2).
The first question that we must address is whether Mr. Milton’s Motion to
Amend qualifies under § 2244(d)(2) for statutory tolling of the one-year
limitations period. The district court found that it did not, and for the reasons
explained below, we conclude that reasonable jurists would not find this decision
debatable.
Our decision in Woodward is instructive. In Woodward, a state prisoner
had filed a motion to allow for DNA testing less than a year before his conviction
became final. See 693 F.3d at 1291. The state courts never ruled on this motion,
and eleven years later, the prisoner filed a habeas petition in federal court. Id.
We held that this petition was untimely under AEDPA, notwithstanding the
unresolved DNA testing motion. Id. at 1292. We determined that the DNA
testing motion was not really one for “collateral review” of the prisoner’s
conviction or sentence, as required for statutory tolling under § 2244(d)(2). Id. at
1293; see 28 U.S.C. § 2244(d)(2) (statutory tolling takes place during the
pendency of “a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment”).
We noted that “‘collateral review’ of a judgment or claim means a judicial
reexamination of a judgment or claim in a proceeding outside of the direct review
process.” Woodward, 693 F.3d at 1293 (quoting Wall v. Kholi, 562 U.S. 545, 553
(2011)). The DNA testing motion “did not call for a judicial reexamination of the
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judgment imposing [Mr. Woodward’s] sentence,” because it merely “asked that
DNA testing be done on hair samples preserved in [Mr. Woodward’s] case and
that the results be provided to him.” Id. Significantly, we observed that the
motion “contained no request that his conviction or sentence be reexamined.” Id.
In the present case, Mr. Milton’s Motion to Amend states in its entirety:
Now on this Nov 1, day of 2014 this matter comes before the
Judge on a Motion to Amend the Information Becauce its been
Newly Discoved. That under Terms of Imprisonment Count (2)
30 year to do. Count (3) 10 year to do. Count (4) Fines Only
Dist. Ct. Doc. 10, Ex. 5, at 1(typographical errors in original); accord R. at 120
(R. & R., dated Mar. 31, 2017). Mr. Milton also purported to append to his
motion a “Summary [of] Opinion” of an Oklahoma state court decision; he asked
the court to consider it but offered no explanation regarding the significance of
the decision. Id. at 2. Like Woodward, Mr. Milton’s motion “contained no
request that his conviction or sentence be reexamined,” 693 F.3d at 1293, and
there was no basis from the text of the motion to reasonably infer such a request,
much less what the contours of the request would be.
The magistrate judge found in his recommendation—which the district
court adopted—that the Motion to Amend failed, in any cognizable fashion, to
“call for a judicial reexamination of the judgment” against Mr. Milton. Id. at
1293. As such, the Motion to Amend did not seek collateral review of Mr.
Milton’s sentence, and the statutory tolling of § 2244(d)(2) was never triggered.
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We conclude that reasonable jurists would not debate the correctness of this
determination.
B
Mr. Milton also suggests that he is eligible for equitable tolling, arguing
that he is incarcerated at a facility that does not have “an adequate law library.”
Aplt.’s Br. at 7. However, we do not believe that reasonable jurists would debate
the district court’s decision to reject this contention.
Equitable tolling is “a rare remedy” successfully invoked only “in unusual
circumstances,” and is “to be applied sparingly.” Yang v. Archuleta, 525 F.3d
925, 929 (10th Cir. 2008) (first quoting Wallace v. Kato, 549 U.S. 384, 396
(2007), then quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002)). Specifically, we have previously held that lack of access to relevant case
law is not enough, standing by itself, to justify equitable tolling of AEDPA’s
limitations period. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)
(noting that “a claim of insufficient access to relevant law, such as AEDPA, is not
enough to support equitable tolling”); see also Weibley v. Kaiser, 50 F. App’x
399, 403 (10th Cir. 2002) (unpublished) (“[A]llegations regarding insufficient
library access, standing alone, do not warrant equitable tolling.”). Notably, Mr.
Milton does not point to anything beyond lack of access to a law library that
would warrant equitable tolling. Accordingly, reasonable jurists could not debate
the correctness of the district court’s decision to reject Mr. Milton’s request for
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equitable tolling.
IV
Finally, we address Mr. Milton’s request to proceed in forma pauperis in
his appeal. Because he has not shown “a reasoned, nonfrivolous argument on the
law and facts in support of the issues raised on appeal,” McIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan,
937 F.2d 502, 505 (10th Cir. 1991)), we deny his application to proceed in forma
pauperis and direct him to make full and immediate payment of the outstanding
appellate filing fee. See also United States v. Pitt, 672 F. App’x 885, 886 (10th
Cir. 2017) (unpublished) (denying a motion to proceed in forma pauperis, because
the COA applicant had not demonstrated “a reasonably debatable appeal point”).
V
Based on the foregoing, we DENY Mr. Milton’s request for a COA,
DISMISS the matter, and DENY his application to proceed in forma pauperis.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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