Collins v. Bear , 698 F. App'x 946 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 21, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
LATORIS DEWAYNE COLLINS,
Petitioner - Appellant,
v. No. 16-6339
(D.C. No. 5:16-CV-00951-W)
CARL BEAR, Warden, (W.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
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Latoris DeWayne Collins, a state prisoner appearing pro se,1 seeks a certificate
of appealability (COA) to appeal the district court’s dismissal of his habeas petition
under 28 U.S.C. § 2254 as untimely. Collins doesn’t contest that he filed his petition
outside the statutory limitations period. Instead, he argues that he is entitled to
equitable tolling. Because we conclude that jurists of reason would not find it
debatable that the district court was correct in its procedural ruling, we deny Collins
a COA and dismiss the appeal.
*
This order is not binding precedent, except under the doctrines of law of the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 Federal Rule Appellate Procedure 32.1 and 10th Circuit Rule
32.1.
1
Because Collins appears pro se, we liberally construe his petition. Clark v.
Oklahoma, 468 F.3d 711, 713 n.1 (10th Cir. 2006).
BACKGROUND
A jury convicted Collins on two counts of first-degree rape and two counts of
kidnapping after he kidnapped two women, threatened their lives, and raped them.
Collins v. State, 223 P.3d 1014, 1015, 2017 (Okla. Crim. App. 2009). The district
court sentenced him to 20 years’ imprisonment for each count.2 Id. at 1015.
Collins appealed his convictions and sentences to the Oklahoma Court of
Criminal Appeals (OCCA). On December 17, 2009, the OCCA affirmed.3 Id. at 1023.
In the 90 days available to do so, Collins did not file a petition for certiorari to the
United States Supreme Court. Instead, Collins waited until October 2, 2013, three
years and six months after he could have filed a certiorari petition, to file a state-
court application for post-conviction relief. The state district court denied Collins’s
application.
Next, Collins filed an application for a post-conviction appeal out of time,
which the district court granted. Even though the district court granted Collins
additional time, Collins still missed the deadline, and the district court denied his
application for post-conviction relief. The OCCA affirmed that denial.
On August 19, 2016, more than five years after Collins’s convictions became
final, Collins petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. Upon
2
Collins’s rape sentences ran concurrently and then consecutively to
concurrent kidnapping sentences, so yielded a 40-year consecutive term.
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After affirming Collins’s convictions and sentences, the OCCA remanded to
the district court to amend the Judgment and Sentence to reflect that all four
convictions occurred after Collins had two or more previous felony convictions.
2
receiving Collins’s petition, the magistrate judge issued a Report and
Recommendation, recommending that the district court dismiss Collins’s petition as
untimely. The Report and Recommendation concluded that the one-year statute of
limitations established by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2244(d)(1), governed Collins’s petition. Under AEDPA,
Collins’s convictions became final on March 17, 2010, that is, 90 days4 after the
OCCA affirmed Collins’s convictions. Because his convictions became final on
March 17, 2010, Collins had until March 17, 2011 to file a petition for writ of habeas
corpus under 28 U.S.C. § 2254. Noting that Collins had waited to file until more than
five years after his judgment became final, the Report and Recommendation
concluded that his petition was untimely absent equitable or statutory tolling of the
limitation period.
The Report and Recommendation rejected Collins’s argument that equitable or
statutory tolling applied, recommended dismissal of the petition, and advised Collins
that he could object to any of its findings. In response, Collins objected only to the
Report and Recommendation’s conclusion regarding equitable tolling, asserting that
he was actually innocent. The district court adopted the Report and Recommendation
and dismissed Collins’s petition as time-barred. It also denied Collins a COA.
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Sup. Ct. R. 13.1(a certiorari petition must be filed within 90 days of entry of
judgment).
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DISCUSSION
A. Procedural Bar
We 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). As in this case, when the
district court dismisses a habeas petition on procedural grounds, we issue a COA
only if the petitioner shows that (1) jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right, and that (2)
jurists of reason would find it debatable whether the district court was correct in its
procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Resolution of
procedural issues first is allowed and encouraged by the rule that this Court will not
pass upon a constitutional question if there is also present some other ground on
which to resolve the case. Id. at 485 (citing Ashwander v. TVA, 297 U.S. 288, 347
(1936) (holding that the “Court will not pass upon a constitutional question although
properly presented by the record, if there is also present some other ground upon
which the case may be disposed of”)).
Collins argues that the district court erred in concluding that his claims were
procedurally barred. But we agree with the district court, and we do not believe that
reasonable jurists would find it debatable that Collins’s habeas petition was untimely
and procedurally barred. AEDPA establishes a one-year limitations period for habeas
corpus petitions. 28 U.S.C. § 2244(d). Here, the one-year period runs from “the date
on which the judgment 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). When
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the petitioner hasn’t petitioned for certiorari with the Supreme Court, the one-year
period begins to run “after the time for filing a petition for certiorari with the
Supreme Court has passed.” Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001).
Thus, the judgment is final 90 days after the final state court’s review. See Sup. Ct.
R. 13.1 (requiring certiorari petition to be filed within 90 days after entry of
judgment).
On December 17, 2009, the OCCA affirmed Collins’s convictions. Collins,
223 P.3d at 1023. Collins didn’t petition for certiorari so his convictions became final
90 days later on March 17, 2010. Collins had one year, until March 17, 2011, to file
any habeas petition. 28 U.S.C. § 2244(d). Instead of filing within this period, Collins
waited until August 19, 2016, more than five years after the statute of limitations had
expired.
Collins argues that equitable tolling applies to the one-year limitation under
AEDPA. Equitable tolling of the one-year limitation may be granted, however, in
“rare and exceptional circumstances.” Coppage v. McKune, 534 F.3d 1279, 1280
(10th Cir. 2008) (quoting York v. Galetka, 314 F.3d 522, 527 (10th Cir. 2003)). A
petitioner must show that (1) he has diligently pursued his rights and (2) that some
extraordinary circumstance stood in his way from timely filing. Yang v. Archuleta,
525 F.3d 925, 928 (10th Cir. 2008). Conclusory statements that a petitioner has
diligently pursued his rights and remedies are insufficient. Id. at 930. In Yang v.
Archuleta, the petitioner argued that a lack of access to legal texts in his native
language justified equitable tolling of the AEDPA one-year limitation. Id. at 927. We
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rejected this argument, reasoning that the petitioner had made mere statements but
had not described what actions he pursued to secure assistance with his language
barrier, nor explained how the barrier affected him during earlier court proceedings.
Id. at 930. We therefore concluded that no reasonable jurist could debate the district
court’s finding that the petitioner’s “proffer of extraordinary circumstances and
diligence did not entitle him to equitable tolling.” Id.
Here, Collins argues that he is entitled to equitable tolling on the limitation
period “due to circumstances beyond his control . . . [a]nd through no fault of his
own due to state action.” Appellant’s Br. at 2. Collins also argues that “[a] COA
should issue to review further an equitable tolling exception to appellant’s
constitutional claims on the merits in the interest of justice.” Id. But Collins provides
no explanation how he diligently pursued his rights and he doesn’t specify any
circumstances beyond his control. Collins’s conclusory statements fall short of the
standard needed to show equitable tolling.
On appeal, Collins also argues that AEDPA’s one-year limitation is statutorily
tolled. In the Report and Recommendation, the magistrate judge rejected this
argument, concluding that statutory tolling didn’t apply. Collins didn’t object to that
part of the magistrate’s order. Because Collins didn’t object, we refrain from
addressing this issue. Moore v. United States, 950 F.3d 656, 659 (10th Cir. 1991)
(finding “the failure to make timely objection to the magistrate’s findings or
recommendations waives appellate review of both factual and legal questions”).
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But even if we considered Collins’s statutory tolling argument, we agree with
the Report and Recommendation that statutory tolling is inapplicable. “The 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). The problem with
Collins’s argument is that “[o]nly state petitions for post-conviction relief filed
within the one year allowed by AEDPA will toll the statute of limitations.” Clark v.
Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006). Collins petitioned for state post-
conviction relief after the one-year limitations period had already expired. Thus, he is
not entitled to statutory tolling.
B. Charges and Sentence
Finally, Collins presents two arguments related to the merits of his appeal: (1)
that the trial court erred by joining his two rape charges and by excluding evidence
that one of the rape victims had earlier convictions for prostitution, and (2) that the
trial court incorrectly sentenced him to consecutive, instead of concurrent, sentences.
We do not address these issues unless a COA is issued, which we decline to do. 28
U.S.C. § 2253(c)(1)(A). And Collins never presented these arguments to the district
court in his petition for writ of habeas corpus. See Coppage, 534 F.3d at 1282
(arguments not raised in district court need not be addressed).
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CONCLUSION
For these reasons, we deny Collins a COA on the district court’s denial of his
petition for a writ of habeas corpus, deny his motion to proceed in forma pauperis,
and dismiss the appeal.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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