Von Hallcy v. Milyard , 387 F. App'x 858 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
July 19, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
BILLY VON HALLCY, *
Petitioner-Appellant,
No. 09-1567
v.
(D.C. No. 09-cv-812-ZLW-BNB)
(D. Colo.)
KEVIN MILYARD; THE
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY **
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
*
The record transmitted by the district court identified Appellant as
“Billy Von Halley.” As best we can tell, however, the correct spelling of
Appellant’s surname is “Hallcy.” Appellant’s hand-written filings appear to
reflect this spelling, and, notably, the State confirmed the point before the district
court, see R. at 44 n. 1 (Pre-Answer Resp., filed Sept. 11, 2009).
**
This Order is not binding precedent, except under the doctrines of law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 oral argument would not be of material
assistance in the determination of this matter. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Billy Von Hallcy is a prisoner in the custody of the State of Colorado.
Proceeding pro se, 1 he seeks a Certificate of Appealability (“COA”) to appeal
from the district court’s denial of his 28 U.S.C § 2254 petition for a writ of
habeas corpus. We DENY his request for a COA and DISMISS this matter.
I. Background
In 2001, Mr. Hallcy was convicted of attempted first-degree sexual assault
and various other offenses in Colorado state court. In addition to several other
sentences, he received a sentence under Colorado law for an indeterminate term
of 12 years to life in prison. Mr. Hallcy challenged his convictions and the
indeterminate sentence on direct appeal and in collateral proceedings in state
court, but his claims were all rejected. Mr. Hallcy then sought relief in federal
district court, filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254.
The district court refused to grant the writ, concluding that his claims were barred
by the statute of limitations.
Mr. Hallcy filed a timely notice of appeal. The district court subsequently
denied his request for a COA, and denied his motion to proceed on appeal in
forma pauperis. Mr. Hallcy renews both of these requests before us. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).
1
Because Mr. Hallcy is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
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II. Discussion
Unless a petitioner obtains a COA, we lack jurisdiction to consider the
merits of a habeas appeal. 28 U.S.C. § 2253(c)(1)(A). We may only issue a COA
“if the applicant has made a substantial showing of the denial of a constitutional
right.” Id. § 2253(c)(2). Where the district court denies a petition on procedural
grounds, the petitioner 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. McDaniel, 529 U.S. 473, 484
(2000) (emphasis added).
The district court dismissed Mr. Hallcy’s petition on procedural grounds,
concluding that his claims were barred by the one-year limitations period
established by 28 U.S.C. § 2244(d). 2 The court reasoned that Mr. Hallcy’s
2
28 U.S.C. § 2244(d) provides:
(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. The limitation
period shall run from the latest of—
(A) the date on which the judgment became final
by the conclusion of direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
(continued...)
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conviction became final on July 6, 2004, starting the one-year clock. The
limitations period was tolled from July 22, 2004, through September 20, 2004,
while Mr. Hallcy was pursuing state post-conviction remedies. See § 2244(d)(2).
Even with this tolling, however, the one-year period expired on September 6,
2005—long before Mr. Hallcy filed his next state post-conviction motion on
August 8, 2006. The district court noted that Mr. Hallcy did not claim that his
case fell under the circumstances enumerated at § 2244(d)(1)(B)–(D). Nor did he
allege any facts suggesting that he was entitled to equitable tolling of the
limitations period. Thus, the district court concluded that Mr. Hallcy’s claims
were time-barred.
2
(...continued)
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme Court,
if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
(2) The time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not
be counted toward any period of limitation under this
subsection.
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In his application to this court seeking a COA, Mr. Hallcy seems to admit
as much. See Aplt. Appl. for COA at 4. Nonetheless, he urges us to consider his
claims because he “did not know about any time bar[],” and “[i]t would be a
fundamenta[l] miscarriage of justice to hold this again[st] me in this case. So
know [sic], I did not seek the required steps in this case. I would hope this court
[would] give me a chance to right this wrong.” Id. (citation omitted). Construing
this statement liberally because Mr. Hallcy is litigating pro se, we take this as a
claim that he is entitled to equitable tolling. However, as the district court noted,
in the proceedings before it Mr. Hallcy “fail[ed] to allege any facts that might
justify equitable tolling of the one-year limitation period.” R. at 216 (Order of
Dismissal, filed Nov. 19, 2009) (emphasis added). This failure is reason enough
for us not to consider Mr. Hallcy’s late-blooming equitable contentions on appeal.
See, e.g., Coppage v. McKune, 534 F.3d 1279, 1282 (10th Cir. 2008) (declining to
address petitioner’s arguments in favor of equitable tolling where they were not
presented to the district court); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.
2000) (same).
Even were we to overlook this failing and consider the substance of Mr.
Hallcy’s claim, he would not be able to show that the correctness of the district
court’s procedural decision is reasonably debatable; thus, he cannot take the first
step toward a substantial showing of the denial of a constitutional right. The
Supreme Court has recently affirmed that § 2244(d)’s limitations period is subject
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to equitable tolling. Holland v. Florida, 78 U.S.L.W. 4555, No. 09-5327, 2010
WL 2346549, at *9 (U.S. June 14, 2010). But, in doing so, the Court also
affirmed that a habeas petitioner seeking equitable tolling must clear a high
hurdle. “[A] petitioner is entitled to equitable tolling only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” Id. at *12 (internal
quotation marks omitted); accord Yang v. Archuleta, 525 F.3d 925, 929 (10th Cir.
2008) (“‘Equitable tolling is a rare remedy to be applied in unusual
circumstances, not a cure-all for an entirely common state of affairs.’” (quoting
Wallace v. Kato, 549 U.S. 384, 396 (2007))).
In light of this high standard, Mr. Hallcy’s professed ignorance of the law
is not enough to justify the extraordinary remedy of equitable tolling—a
proposition implied by the very case that he cites to us. See Klein v. Neal, 45
F.3d 1395, 1400 (10th Cir. 1995) (stating that a petitioner’s “assertions he is not a
lawyer and he was unaware of [a] statute’s existence are insufficient as a matter
of law to constitute ‘cause’” to surmount a habeas procedural bar). We are
sympathetic to Mr. Hallcy’s difficulties in navigating the legal system on his own.
But no reasonable jurist could conclude that the district court erred in determining
that Mr. Hallcy’s claims were time-barred; accordingly, we must deny Mr.
Hallcy’s request for a COA.
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Finally, we deny Mr. Hallcy’s request to proceed in forma pauperis because
he has failed to identify “‘the existence of a reasoned, nonfrivolous argument on
the law and facts in support of the issues raised on appeal.’” McIntosh v. U.S.
Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quoting DeBardeleben v.
Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)).
III. Conclusion
For substantially the reasons given by the district court, we DENY Mr.
Hallcy’s request for a COA and DISMISS this matter. Furthermore, we DENY
his request for in forma pauperis status.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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