Fisher v. Trammell , 497 F. App'x 810 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
September 17, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RODNEY T. FISHER,
Petitioner-Appellant,
No. 12-7014
(D.C. No. 6:11-CV-00155-RAW-
v.
KEW)
(E.D. Okla.)
ANITA TRAMMELL, Warden,
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Rodney Fisher is a prisoner in the custody of the State of Oklahoma.
Proceeding pro se, 1 he seeks a Certificate of Appealability (COA) to appeal the
district court’s dismissal of his petition for a writ of habeas corpus under 28
*
This Order is not binding precedent, except under the doctrines of law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 of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that the facts and legal arguments are presented
adequately therein, and that oral argument would not significantly aid the
decisional process. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
1
Because Mr. Fisher is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
U.S.C. § 2254. Finding no basis for relief, we deny a COA.
I
Rodney Fisher was convicted in Oklahoma state court of escape from a
penal institution, after having been convicted of two or more felonies. He was
sentenced to life in prison for the charge on September 21, 2005. He appealed his
conviction and sentence to the Oklahoma Court of Criminal Appeals (OCCA). On
August 28, 2008, it denied his averments of error and affirmed.
Mr. Fisher sought post-conviction relief in Oklahoma court, contending,
inter alia, that he was denied effective assistance of appellate counsel because
counsel failed to raise issues that Mr. Fisher believed should have been brought to
light on direct appeal. The state trial court denied relief on all grounds. On May
11, 2010, the OCCA affirmed. The OCCA found “[a]ll issues previously ruled
upon [on direct appeal] . . . res judicata, and all issues not raised in the direct
appeal, which could have been raised, . . . waived.” R. at 19 (OCCA Order. Aff.
Den. of Post-Conviction Relief, filed May 11, 2010). Furthermore, the OCCA
found that the record did not support Mr. Fisher’s ineffective-assistance-of-
appellate-counsel claims and “counsel [wa]s not required to advance every cause
of argument [noted by Mr. Fisher] regardless of merit.” Id.
On April 29, 2011, Mr. Fisher came to federal court, raising multiple
constitutional challenges to his conviction. The State moved to dismiss the
petition on the basis that it was time-barred under the one-year statute of
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limitations of the Antiterrorism and Effective Death Penalty Act (AEDPA), 28
U.S.C. § 2244(d)(1). The State argued that Mr. Fisher’s conviction became final
on November 26, 2008, ninety days after the OCCA’s denial of relief on direct
appeal, when his time for seeking certiorari from the Supreme Court expired.
Hence, reasoned the State, the AEDPA statutory limitations period expired one
year later on November 26, 2009. And, because Mr. Fisher’s state post-
conviction petition was not filed until a couple of months after the latter date, it
could not toll the federal limitations period under 28 U.S.C. § 2244(d)(2)
(providing that the AEDPA limitations period is tolled during the time a “properly
filed application for State post-conviction or other collateral review . . . is
pending”).
Mr. Fisher disagreed. He argued that the procedural facts were more
complicated than the State let on. Mr. Fisher claimed that, after his sentence was
handed down, his attorney failed to file a direct appeal, so he filed a pro se
handwritten motion to file a notice of appeal out of time in state district court.
Allegedly with the improper help of the State, the district court denied the
motion. However, Mr. Fisher acknowledges that he subsequently sought the same
relief from the OCCA, which was granted. However, he maintains that, after the
OCCA denied him relief, his appellate counsel ignored his requests to move
forward to file a petition for certiorari with the U.S. Supreme Court.
As for the difficulties he allegedly encountered post-conviction, Mr. Fisher
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asserted that, even though his state post-conviction application was not filed until
seven weeks after the limitations period would have expired, in reality, he
actually “filed said post-conviction application within [the] statutor[il]y required
time yet the District Court of Pittsburgh Co[unty, Oklahoma] refused to file due
to unsubstantiated claims that [he] was not . . . eligible [to proceed in forma
pauperis].” Id. at 71 (Pet’r’s Resp. to Atty. Gen. Arg., filed June 28, 2011).
Consequently, Mr. Fisher contends that he was forced to file the petition after the
limitations period otherwise would have expired.
The district court found none of Mr. Fisher’s excuses for his untimely
petition persuasive. Notably, the court found “unsupported” his claim that “the
state district court forced him to refile his post-conviction application [ninety]
days after his original . . . filing.” R. at 82 (Dist. Ct. Op. & Order, filed Feb. 9,
2012). It further denied equitable tolling because “the record show[ed] petitioner
was allowed a direct appeal out of time, and [he] . . . failed to show the State
created an impediment to his proper filing of a post-conviction action.” Id. It
dismissed the petition as untimely and denied a COA. Mr. Fisher now appeals.
II
Absent the grant of a COA, we lack jurisdiction under AEDPA to review
the merits of Mr. Fisher’s proposed appeal. See 28 U.S.C. § 2253(c)(1)(A);
accord Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006) (citing Miller–El
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v. Cockrell, 537 U.S. 322, 336 (2003)). More directly, “a COA is needed to
appeal . . . ‘the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court.’” Montez v.
McKinna, 208 F.3d 862, 866–67 (10th Cir. 2000) (quoting 28 U.S.C. §
2253(c)(1)).
We may 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). To satisfy this
standard, the applicant must show “that reasonable jurists could debate whether
. . . the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Allen v.
Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)) (internal quotation marks omitted). Where the district
court denies an application on a procedural ground, ordinarily the applicant must
show both “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.” Harris v. Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011) (emphasis
added) (quoting Slack, 529 U.S. at 484) (internal quotation marks omitted).
On appeal, Mr. Fisher repeats his arguments below. We decline to endorse
them. After a thorough review of the record, we conclude that Mr. Fisher has not
met his burden in showing entitlement to a COA. In particular, we conclude that
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the district court correctly concluded that Mr. Fisher had not made an adequate
showing for equitable tolling—viz., Mr. Fisher failed to establish that he pursued
his claims diligently and that his failure to timely file his habeas petition was
caused by extraordinary circumstances beyond his control. See Gibson v. Klinger,
232 F.3d 799, 808 (10th Cir. 2000); cf. Fleming v. Evans, 481 F.3d 1249, 1256
(10th Cir. 2007) (“We agree with those circuits holding that sufficiently egregious
misconduct on the part of a habeas petitioner’s counsel may justify equitable
tolling of the AEDPA limitations period.”). In sum, we conclude that jurists of
reason could not debate the correctness of the district court’s procedural ruling.
We consequently need not address whether jurists of reason could debate whether
the petition states a valid constitutional claim.
III
For the foregoing reasons, we DENY Mr. Fisher a COA and DISMISS the
matter.
Entered for the Court
Elisabeth A. Shumaker, Clerk
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