Long v. Miller , 541 F. App'x 800 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 8, 2013
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JUSTIN RYAN LONG,
Petitioner - Appellant, No. 13-6083
(D.C. No. 5:12-CV-00444-R)
v. (W.D. Oklahoma)
CHAD MILLER; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
Justin Ryan Long, an Oklahoma state prisoner, filed what he styled a
“Petition” challenging the district court’s denial of his application for relief under
28 U.S.C. § 2254 The district court denied the Petition. Long now seeks a
certificate of appealability (COA) from this court so that he may appeal the
district court’s decision. We deny a COA and dismiss the appeal.
On November 28, 2001, Long was convicted in Oklahoma state court of
murder and sentenced to life without parole. The Oklahoma Court of Criminal
Appeals (OCCA) affirmed, and the United States Supreme Court denied
certiorari. See Long v. State, 74 P.3d 105 (Okla. Crim. App. 2003), cert. denied,
540 U.S. 1163 (2004). Long unsuccessfully sought state postconviction relief,
and filed two applications under 28 U.S.C. § 2254, which were dismissed without
prejudice for failure to exhaust state remedies and failure to pay the filing fee.
On July 18, 2007, Long filed a third § 2254 application in the United States
District Court for the Western District of Oklahoma. The district court dismissed
the application as untimely under the Antiterrorism and Effective Death Penalty
Act (AEDPA), see 28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall
apply to an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.”), and we affirmed, see Long v.
Peterson, 291 F. App’x 209 (10th Cir. 2008).
On April 19, 2012, Long filed his Petition, asking the district court to
reconsider the dismissal of his third § 2254 application. He argued generally that
AEDPA is unconstitutional to the extent that it precludes applicants from
vindicating their constitutional rights, and in particular that the application of
AEDPA’s statute of limitations in his case violated his Fifth, Sixth, and
Fourteenth Amendment rights because it barred him from asserting his claim of
ineffective assistance of counsel. Long also contended that the court should not
have dismissed his application as untimely because he had timely filed two prior
§ 2254 applications.
The district court held that the Petition was not a second or successive
habeas petition because it challenged the district court’s prior procedural ruling
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and not its disposition on the merits. See Gonzalez v. Crosby, 545 U.S. 524,
535–36 (2005) (“Because petitioner’s Rule 60(b) motion challenge[d] only the
District Court’s previous ruling on the AEDPA statute of limitations, it is not the
equivalent of a successive habeas petition”). But it denied the Petition because
AEDPA’s statute of limitations does not violate the Constitution. Long cannot
appeal the district court’s decision unless we first grant a COA. See Spitznas v.
Boone, 464 F.3d 1213, 1217–18 (10th Cir. 2006).
We deny a COA because reasonable jurists would not debate the
correctness of the district court’s ruling. The essence of Long’s argument is that
AEDPA’s limitation period cannot deny him the right to obtain habeas-corpus
relief. But he provides no authority, nor do we know of any, suggesting that the
Fifth, Sixth, or Fourteenth Amendments in themselves require a habeas remedy.
The constitutional basis for habeas relief is the Suspension Clause, which states
that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended . . . .”
U.S. Const. art. 1, § 9, cl. 2. But the claim that AEDPA’s limitations period
violates the Suspension Clause has been squarely rejected by this court. We have
held that although there may be circumstances when the limitations period “raises
serious constitutional questions and possibly renders the habeas remedy
inadequate and ineffective” in violation of the Suspension Clause, it can properly
be applied absent grounds for equitable tolling or a showing of actual innocence
or incompetence. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998); see
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Wyzykowski v. Dep’t of Corr., 226 F.3d 1213, 1217 (11th Cir. 2000) (“[W]e
readily conclude that, as a general matter, the § 2244(d) limitation period does not
render the collateral relief ineffective or inadequate to test the legality of
detention, and therefore is not an unconstitutional suspension of the writ of
habeas corpus.”); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (“We join
the other circuits that have considered this issue and hold that AEDPA’s one-year
limitation does not constitute a per se violation of the Suspension Clause.”);
Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 113–14 (2d Cir. 2000)
(“[B]ecause AEDPA’s one-year statute of limitations leaves habeas petitioners
with some reasonable opportunity to have their claims heard on the merits, the
limitations period does not render the habeas remedy inadequate or ineffective to
test the legality of detention, and therefore does not per se constitute an
unconstitutional suspension of the writ of habeas corpus.” (internal quotation
marks omitted)); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (per curiam)
(“The 1-year limitations period of the AEDPA does not violate the Suspension
Clause unless it renders the habeas remedy inadequate or ineffective to test the
legality of detention. [Defendant] has not shown how the limitations period made
the habeas remedy inadequate or ineffective for him, since nothing prevented him
from filing a petition before the limitations period expired.” (footnote and internal
quotation marks omitted)).
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Long has not shown that AEDPA rendered his right to habeas relief
inadequate or ineffective, nor has he shown grounds for equitable tolling or his
actual innocence or incompetence. Further, even if his prior dismissed
applications were timely, they did not license him to delay filing an application
that he would pursue to judgment.
We DENY a COA and DISMISS the appeal. Long’s motion to proceed in
forma pauperis is DENIED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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