Rivera v. Mullin ( 2011 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT December 13, 2011
Elisabeth A. Shumaker
Clerk of Court
RAMON RIVERA,
Petitioner - Appellant,
No. 11-6180
v. (W.D. Okla.)
(D.C. No. 5:11-CV-00173-HE)
MIKE MULLIN; DREW EDMONDSON,
Respondents - Appellees
ORDER DENYING LEAVE TO APPEAL WITHOUT PREPAYMENT OF FEES,
DENYING CERTIFICATE OF APPEALABILITY,
AND DISMISSING APPEAL
Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
Ramon Rivera, a state prisoner proceeding pro se, wants to appeal from the district
court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We deny his
request for a Certificate of Appealability (COA) and dismiss this appeal.
I. BACKGROUND
In 2009, pursuant to a plea agreement Rivera pled no contest to unlawful
possession of a controlled drug with intent to distribute. He was sentenced 15 years
imprisonment. Rivera did not timely appeal, but later sought state post-conviction relief.
The Oklahoma district court concluded his contentions of error were cognizable only on
direct appeal and he had shown no justification for an appeal out of time. The Oklahoma
Court of Criminal Appeals affirmed.
Rivera, proceeding pro se, then filed his § 2254 petition. It contended he was
denied the effective assistance of counsel and he did not voluntarily, intelligently, or
knowingly waive his right to a jury trial.
According to the assigned magistrate judge, Rivera’s conviction became final on
May 14, 2009, when the time for seeking to withdraw his plea or to appeal expired.
Thus, the one-year limitation for filing a habeas petition expired on May 15, 2010. See
28 U.S.C. § 2244(d)(1). Rivera did not file his petition until February 8, 2011.1
Therefore, the magistrate recommended the petition be dismissed as untimely. Although
Rivera filed an objection to the magistrate’s report, he did not meaningfully address the
timeliness issue. The district court adopted the magistrate’s report and recommendation,
dismissed the petition, and entered judgment accordingly.
II. DISCUSSION
A COA is a jurisdictional prerequisite to our review of a petition for a writ of
habeas corpus. Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). Ordinarily, we 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). But we cannot issue a COA when the
district court correctly invokes a procedural bar to dispose of the case. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
1
His petition for state post-conviction relief did not toll the limitations period
because it was not filed until September 17, 2010 – after the limitations period had
already run. See 28 U.S.C. § 2244(d)(2); Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th
Cir. 2001).
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Although Rivera bears the burden of demonstrating error, Hernandez v. Starbuck,
69 F.3d 1089, 1093 (10th Cir. 1995), he does not address the timeliness issue in his brief
and application for COA. We liberally construe the filings of pro se appellants, see
Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003), but there are
limits to our solicitude. We are “not required to manufacture an appellant’s argument on
appeal when [he] has failed in [his] burden to draw our attention to the error below.”
Hernandez, 69 F.3d at 1093 (quotations omitted). The magistrate’s cogent report and
recommendation correctly considered and resolved the timeliness issue; since Rivera’s
objection did not address that issue, the district court properly adopted the magistrate’s
report and recommendation.2 No reasonable jurist could conclude otherwise. See Slack,
529 U.S. at 484.
III. FILING FEES
The district court denied Rivera’s motion for leave to appeal without prepayment
of fees because his appeal was not taken in good faith. 28 U.S.C. 1915 (a)(3) 3 He has
2
See also Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005)
(absent certain circumstances, “a party who fails to make a timely objection to the
magistrate judge’s findings and recommendations waives appellate review of both factual
and legal questions”).
3
28 U.S.C. § 1915 was amended by The Prison Litigation Reform Act (PLRA),
particularly §§ 1915(a)(2) and (b). The PLRA amendments do not apply to §§ 2241,
2254 and 2255 actions or appeals. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809,
812 (10th Cir. 1997) (§ 2241); United States v. Simmonds, 111 F.3d 737, 744 (10th Cir.
1997) (§ 2254 and § 2255)), overruled on other grounds, United States v. Hurst, 322 F.3d
1256, 1261 n.4 (10th Cir. 2003). However, only the PLRA amendments are inapplicable,
see McIntosh, 115 F.3d at 812; the balance of the statute does apply to such cases. Since
§ 1915(a)(1) and (3) pre-date and were not substantively modified by the PLRA, §§ 2241,
2254 or 2255 petitioners must comply with those provisions.
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reapplied here. See F. R. App. P. 4(a)(5). To qualify, he “must show a financial inability
to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on
the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan,
937 F.2d 502, 505 (10th Cir. 1991) (emphasis added). Even though we have solicitously
reviewed his filings, he has failed to pass this threshold. His brief simply makes no
argument – let alone a reasoned and nonfrivolous argument – as to the dispositive issue,
timeliness.
We DENY Rivera’s application for a COA and his motion to proceed on appeal
without prepayment of fees and DISMISS the appeal. Rivera must pay the filing and
docket fees in full to the clerk of the district court. See Kinnell v. Graves, 265 F.3d 1125,
1129 (10th Cir. 2001) (noting dismissal of appeal does not relieve appellant of obligation
to pay the filing fee).
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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