Gray v. Smith ( 2019 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 1, 2019
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
LOFTON AMIER GRAY,
Petitioner - Appellant,
No. 19-6101
v.
(D.C. No. 5:18-CV-01139-SLP)
(W.D. Okla.)
R. C. SMITH, Warden,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before CARSON, BALDOCK, and MURPHY, Circuit Judges.
Petitioner, Lofton Amier Gray, an Oklahoma state prisoner proceeding pro
se, seeks a certificate of appealability (“COA”) so he can appeal the district
court’s dismissal of the habeas corpus petition he filed pursuant to 28 U.S.C.
§ 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a
final order disposing of a § 2254 petition unless the petitioner first obtains a
COA). Gray’s motion to proceed in forma pauperis on appeal is granted.
Gray’s state convictions for first degree murder, larceny of an automobile,
and attempted larceny of an automobile became final on November 8, 2017. At
the time Gray filed his federal habeas petition on November 19, 2018, the one-
year limitations period set out in the Antiterrorism and Effective Death Penalty
Act (“AEDPA”) had expired. See 28 U.S.C. § 2244(d) (setting forth a statute of
limitations for § 2254 petitions). In a well-reasoned Report and
Recommendation, a federal magistrate judge concluded Gray could not take
advantage of the prison mailbox rule because he failed to comply with its
requirements. See Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005) (“[A]n
inmate must establish timely filing under the mailbox rule by either (1) alleging
and proving that he or she made timely use of the prison’s legal mail system if a
satisfactory system is available, or (2) if a legal system is not available, then by
timely use of the prison’s regular mail system in combination with a notarized
statement or a declaration under penalty of perjury of the date on which the
documents were given to prison authorities and attesting that postage was
prepaid.”).
Gray filed written objections to the Report and Recommendation, asserting
entitlement to statutory tolling because a prison-wide lockdown on the last day of
the one-year limitations period prevented him from filing a timely habeas
application. See 28 U.S.C. § 2244(d)(1)(B) (providing that the one-year AEDPA
limitations period begins to run on the later of the date the judgment of conviction
became final or “the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the United
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States is removed, if the applicant was prevented from filing by such State action”
(emphasis added)). After considering Gray’s objections, the district court
concluded Gray was not entitled to an extension of the limitations period under 28
U.S.C. § 2244(d)(1)(B) because he failed to show the lockdown was not related to
legitimate penological interests and, thus, could not show it was an
unconstitutional impediment. Cf. Lewis v. Casey, 518 U.S. 343, 361 (1996)
(involving a claim that the failure to provide prisoners with adequate law libraries
implicated the prisoners’ constitutional right of access to the courts); Akins v.
United States, 204 F.3d 1086, 1090 (11th Cir. 2000) (addressing whether a federal
prisoner was entitled to statutory tolling under 28 U.S.C. § 2255(f)(2) because a
prison lockdown prevented him from accessing the law library); see also Pfeil v.
Everett, 9 F. App’x 973, 978 (10th Cir. 2001) (unpublished disposition relying on
Akins to conclude that a state prisoner claiming a lockdown was an impediment
under § 2244(d)(1)(B) must present evidence the lockdown was not related to
legitimate penological interests). Accordingly, the district court concluded Gray’s
§ 2254 application was filed outside the one-year limitations period established by
the AEDPA and dismissed it as untimely.
To be entitled to a COA, Gray must show “that 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) (holding that when a district court
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dismisses a habeas petition on procedural grounds, a petitioner is entitled to a
COA only if he shows both that reasonable jurists would find it debatable whether
he had stated a valid constitutional claim and debatable whether the district
court’s procedural ruling was correct). In his COA application and appellate
brief, Gray does not address the district court’s conclusion he is not entitled to
statutory tolling under 28 U.S.C. § 2244(d)(1)(B). Instead, he asserts he is
entitled to equitable tolling and the benefit of the prison mailbox rule. These
arguments were not specifically raised in Gray’s objections to the magistrate
judge’s Report and Recommendation. Under this court’s firm-waiver rule, Gray’s
failure to raise these specific objections “waives appellate review of both factual
and legal questions.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010)
(quotations omitted). Accordingly, we do not review whether a COA should be
granted on either of the bases raised for the first time in Gray’s appellate filings. 1
After reviewing Gray’s appellate brief and application for COA, the district
court’s order, the Report and Recommendation, and the entire record on appeal
pursuant to the framework set out by the Supreme Court, we conclude Gray is not
entitled to a COA. Our review demonstrates that the district court’s dismissal of
1
Neither exception to the firm waiver rule applies in this matter. See
Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (holding the
firm waiver rule does not apply “when (1) a pro se litigant has not been informed
of the time period for objecting and the consequences of failing to object, or when
(2) the ‘interests of justice’ require review”).
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Gray’s § 2254 petition as untimely is not deserving of further proceedings or
subject to a different resolution on appeal. Thus, Gray has not “made a
substantial showing of the denial of a constitutional right” and is not entitled to a
COA. 28 U.S.C. § 2253(c)(2).
This court denies Gray’s request for a COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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