Bluemel v. Bigelow ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 27, 2015
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
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DARREN CHARLES BLUEMEL,
Petitioner - Appellant,
v. No. 15-4046
(D.C. No. 2:13-CV-00945-TC)
ALFRED BIGELOW, (D. Utah)
Respondent - Appellee.
_________________________________
ORDER DENYING A CERTIFICATE OF
APPEALABILITY AND DISMISSING THE APPEAL
_________________________________
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
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Mr. Darren Bluemel pleaded guilty to murder in state district court, and the
court entered a judgment of conviction. He never attempted to withdraw his plea
or appeal his sentence; instead, he filed three state petitions for post-conviction
relief. Each time, the petition was dismissed. Mr. Bluemel then went to federal
court, seeking a writ of habeas corpus. This petition was dismissed as untimely.
Mr. Bluemel then filed a second federal habeas petition, and the district
court ordered dismissal. The court noted the need for appellate approval before
Mr. Bluemel could file a second habeas petition, but declined to transfer the
petition to our court because a second habeas action would be untimely. Mr.
Bluemel wants to appeal.
Request for a Certificate of Appealability
To appeal, Mr. Bluemel needs a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(A). We can issue the certificate only if reasonable jurists could
debate the correctness of the district court’s ruling. Laurson v. Leyba, 507 F.3d
1230, 1232 (10th Cir. 2007). We conclude no reasonable jurist could debate the
correctness of the district court’s decision.
I. Transfer or Dismissal of a Second Habeas Petition
This is Mr. Bluemel’s second habeas petition on the same conviction. To
file a second habeas petition, Mr. Bluemel needs authorization from our court. In
re Pickard, 681 F.3d 1201, 1203 (10th Cir. 2012). The district court could have
transferred the action to us “if it [was] in the interest of justice to do so.” Id.
(quoting In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam)). But
transfers may be inappropriate when the action would be untimely. See In re
Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam). When a transfer would
be futile, the district court can dismiss the action rather than transfer it to our
court. See id.
II. Timeliness
Federal habeas actions are subject to a one-year period of limitations,
which ordinarily begins to run from the date that the conviction became final. 28
U.S.C. § 2244(d)(1)(A). Mr. Bluemel does not question the fact that he filed the
second habeas petition more than a year after his conviction had become final.
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Instead, he argues that his claim “relies on a new rule of constitutional law.” See
28 U.S.C. § 2244(d)(1)(c); Appellant’s Opening Br. at 1. We reject this argument.
A Supreme Court decision can affect the period of limitations when it
newly recognizes a constitutional right that is made retroactively applicable to
cases on collateral review. 28 U.S.C. § 2244(d)(1)(C). Invoking this principle,
Mr. Bluemel relies on two Supreme Court decisions issued in 2012: Martinez v.
Ryan, __ U.S. __, 132 S. Ct. 1309 (2012), and Maples v. Thomas, __ U.S. __, 132
S. Ct. 912 (2012).
Martinez and Maples do not affect the limitations period because they did
not newly recognize a constitutional right. 1 See Pagan-San-Miguel v. United
States, 736 F.3d 44, 45 (1st Cir. 2013) (per curiam) (holding that Martinez did not
announce a new rule of constitutional law); Jones v. Ryan, 733 F.3d 825, 843 (9th
Cir. 2013) (holding that Martinez did not decide a new rule of constitutional law);
Adams v. Thaler, 679 F.3d 312, 322 n.6 (5th Cir. 2012) (stating that Martinez did
not establish a new rule of constitutional law); see also Sneed v. Shinseki, 737
F.3d 719, 728 (Fed. Cir. 2013) (stating that the Supreme Court based its decision
1
In Maples, the Supreme Court held that an attorney’s abandonment
constituted cause, which allowed a habeas petitioner to avoid a procedural
default. 132 S. Ct. at 927. And in Martinez, the Court held that ineffective
assistance in post-conviction proceedings could constitute “cause” when the
constitutional claim could not be presented in a direct appeal. 132 S. Ct. at 1320-
21.
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in Maples on equitable principles rather than the right to effective assistance of
counsel).
Even if these decisions had newly recognized a constitutional right, the
present action would have remained untimely because Mr. Bluemel brought this
action more than a year after the Supreme Court had issued Martinez and Maples.
Because the present habeas action is untimely, no reasonable jurist could
fault the district court for dismissing the action rather than transferring it to our
court. As a result, we (1) decline to issue a certificate of appealability and (2)
dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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