Mills v. McKune ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
June 28, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CA LV IN M ILLS,
Petitioner – Appellant,
v.
No. 06-3120
DAVID R. M CKUNE, W arden, (D.C. No. 05-CV-3371-SAC)
Lansing Correctional Facility; and (D . Kan.)
PH IL KLINE, Attorney General of
Kansas,
Respondents– Appellees.
OR DER DENY ING A CERTIFICATE O F APPEALABILITY
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
Calvin M ills, a state prisoner proceeding pro se, requests a certificate of
appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254habeas petition. For substantially the same reasons set forth by the district court,
we D EN Y a COA and DISM ISS.
M ills was convicted in 1999 of rape, aggravated criminal sodomy and
taking aggravated indecent liberties with a child. He appealed, but his conviction
was affirmed and the Kansas Supreme Court finally denied a petition for review
on September 24, 2002. M ills then filed a petition for state post-conviction relief
on M arch 18, 2003, which was denied by the Kansas Supreme Court on
September 20, 2004.
On September 10, 2005, M ills filed a federal habeas petition. Rejecting his
argument that the statute of limitations should be equitably tolled, the district
court dismissed the petition as time-barred. It also denied his petition for a COA.
Having failed to secure a COA from that court, M ills now seeks a COA from this
court. 1
The statute of limitations for applications for a writ of habeas corpus is set
forth in 28 U .S.C. § 2244(d). It states:
(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 ;
1
M ills’ petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires M ills to show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied M ills a COA ,
he may not appeal the district court’s decision absent a grant of COA by this
court.
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(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 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.
M ills had ninety days after the Kansas Supreme Court denied review to file a
petition for a writ of certiorari to the Supreme Court. As he did not, the statute of
limitations began running on December 24, 2002. Locke v. Saffle, 237 F.3d
1269, 1272 (10th Cir. 2001). Eighty-three days passed before he filed his
petition for state post-conviction relief. Three hundred fifty-five days passed
between the date the Kansas Supreme Court finally denied his petition for state
post-conviction relief and the date he filed his federal habeas petition. W hen
taken together, the two periods exceed the one-year statute of limitation by
seventy-three days.
M ills raises three arguments why his petition should not be time-barred.
Under Kansas Supreme Court Rule 7.06, a party has twenty days from the date the
Kansas Supreme Court issues a decision to file a petition for rehearing. As such,
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M ills argues that the statute of limitations should have been stayed for twenty
days after the date the Kansas Supreme Court issued its order ending his direct
criminal appeal and for another twenty days after its final decision on his petition
for post-conviction relief. He is partially right and partially wrong. The date the
conviction became final was properly calculated by the district court; it began to
run ninety days after the Kansas Supreme Court denied review because M ills
could have filed a petition for a writ of certiorari to the United States Supreme
Court during this period. The twenty days to file a petition for rehearing before
the Kansas Supreme Court were subsumed during this ninety day period.
M ills is right that the statute of limitations for his federal habeas petition
should have been tolled for twenty days after the Kansas Supreme Court denied
his petition for state post-conviction relief. See Serrano v. W illiams, 383 F.3d
1181, 1185 (10th Cir. 2004). This, however, does not change the fact that his
petition is time-barred.
M ills also argues that the limitations period should have been equitably
tolled. Equitable tolling “is only available w hen an inmate diligently pursues his
claims and demonstrates that the failure to timely file was caused by
extraordinary circumstances beyond his control.” M arsh v. Soares, 223 F.3d
1217, 1220 (10th Cir. 2000). M ills claims that equitable tolling should be applied
because the Kansas Appellate Defender Office misled him by telling him that he
the limitations period would be tolled for ninety days following the final denial of
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his petition post-conviction relief. The letter from the Kansas Appellate Defender
Office to which M ills refers, however, is a general letter that accurately describes
the law , even if it does not specifically analyze the statute of limitations w ith
regards to M ills’ case. Further, attorney error generally does not give rise to
equitable tolling. See Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir.
2000); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999). Finally, M ills
cannot establish that he diligently pursued his claims. As such, equitable tolling
is not applicable.
Lastly, M ills claims that the statute of limitations contained in § 2244(d) is
unconstitutional. He does not provide any reason why § 2244(d) is
unconstitutional and, as such, this challenge fails.
For the reasons set forth above, M ills’ request for a COA is DENIED and
the appeal is DISM ISSED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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