Pearson v. Ward , 184 F. App'x 760 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 16, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
R OBER T LEE PEA RSO N ,
Petitioner-A ppellant, Nos. 05-6293 and 06-6021
v. (W .D. of Okla.)
RON W ARD, Department of (D.C. No. CV -05-452-L)
Corrections Director,
Respondent-Appellee.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **
Petitioner-Appellant Robert Lee Pearson, a state prisoner appearing pro se,
seeks a Certificate of Appealability (COA) challenging the district court’s
dismissal of his 28 U.S.C. § 2254 habeas corpus petition and also appeals the
denial of his Rule 60(b)(1) motion. Because Pearson has neither made a
substantial showing of the denial of a constitutional right, nor demonstrated
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
sufficient circumstances to w arrant relief under Rule 60(b), we DENY the COA
and DISM ISS the appeal as to the habeas petition in 05-6293, and AFFIRM the
district court’s decision denying the Rule 60(b) motion in 05-6021.
I. Background
Pearson pleaded guilty to multiple counts of possession with intent to
distribute controlled substances and possession of a firearm while committing a
felony. He was sentenced to twenty five years for each count, all to be served
concurrently. He claims that: (1) his sentence was improperly enhanced using
stale prior convictions, (2) his counsel was ineffective, and (3) he was improperly
deprived of a post-conviction appeal in the Oklahoma courts.
The magistrate judge recommended dismissal of the first two grounds of his
habeas petition as time-barred and the third ground for failure to state a claim
upon which relief can be granted. Although notified of his obligation to file
objections to the magistrate’s report, Pearson apparently did not do so.
Nonetheless, the district court reviewed his petition de novo and adopted the
m agistrate’s recommendation. Pearson appealed the dismissal of his petition. H e
then moved to vacate and set aside judgment pursuant to Rule 60(b), alleging that
he had objected timely to the magistrate’s recommendation. The court noted that
although it lacked jurisdiction to grant the Rule 60(b)(1) motion due to the
pendency of the habeas appeal, it w as free to deny the motion on its merits. See
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Aldrich Enters., Inc. v. United States, 938 F.2d 1134, 1143 (10th Cir. 1991). The
court denied Pearson’s R ule 60(b) motion, and Pearson now seeks COA.
II. Analysis
A. Dismissal of Pearson’s § 2254 M otion
Since Pearson appears pro se, we must construe the complaint liberally.
See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). W e may issue a CO A “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). If a district court rejects a claim on procedural grounds and does
not reach the merits, the appellant seeking a COA must demonstrate “that jurists
of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v.
M cDaniel, 529 U.S. 473, 484 (2000).
The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
stipulates: “[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.” 28 U.S.C. § 2244(d)(1). Pearson entered a plea of guilty on July 3, 1996,
and failed to object within ten days after the pronouncement of his judgment and
sentence. See Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals
(OCCA) (noting that to appeal from a guilty plea, the defendant must file an
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application to withdraw the plea within ten days from the date of the
pronouncement of judgment and sentence). Therefore, his conviction became
“final” for purposes of § 2244(d)(1)(A) on July 15, 1996. 1 See Fisher v. Gibson,
262 F.3d 1135 (10th Cir. 2001) (holding that a petitioner’s conviction pursuant to
a guilty plea w as final ten days after entry of judgment and sentence w here
petitioner failed to appeal). Because Pearson initiated this action in February
2004, roughly seven years beyond the one-year restriction, the district court was
correct in dismissing the first tw o claims as time-barred.
W e also deny COA as to Pearson’s third ground for relief. Pearson’s
argument apparently is that the Oklahoma courts failed to rule in his favor on his
state habeas petition. Any attempt by a habeas petitioner to challenge state “post-
conviction procedures . . . [will] fail to state a federal constitutional claim
cognizable in a federal habeas proceeding.” Steele v. Young, 11 F.3d 1518, 1521
(10th Cir. 1993); see Sellers v. Ward, 135 F.3d 1333 (10th Cir. 1998) (holding
that an alleged deprivation of due process based on the state appellate court’s
refusal to grant post-conviction review was not cognizable in a federal habeas
corpus proceeding). Accordingly, Pearson is not entitled to habeas relief on
ground three.
B. Denial of Rule 60(b) M otion
1
The tenth calendar day fell on July 13, 1996, a Saturday. Thus Pearson’s
conviction became final on the following business day, M onday, July 15, 1996.
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W e review the district courts’s denial of a Rule 60(b) motion for abuse of
discretion. See Aldrich Enters., 938 F.2d at 1143. Pearson claims he timely filed
an objection to the magistrate’s recommendation, but the pleading was lost at no
fault of his own. Even though the objections were untimely, the court considered
it on its merits.
W e see no error. First, the district court properly denied jurisdiction due to
the pendency of Pearson’s habeas appeal. Id. But, under Aldrich the court was
also free to deny the motion on its merits, which it did. Id. “Relief under Rule
60(b) is extraordinary and may only be granted in exceptional circumstances.”
Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440
(10th Cir. 1990). Because Pearson’s objections raised only the same claims that
had been previously addressed by the district court, we agree that no exceptional
circumstances exist. The Rule 60(b)(1) motion was properly dismissed.
III. Conclusion
For the reasons stated above we DENY the COA and DISM ISS the appeal
from the district court’s order in 05-6293. W e A FFIRM the district court’s
judgment in 05-6021. Finally, we DENY the motion to proceed in forma
pauperis.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
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