Phillips v. Addison , 448 F. App'x 817 ( 2011 )


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  •                                                                                    FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    October 26, 2011
    TENTH CIRCUIT
    Elisabeth A. Shumaker
    Clerk of Court
    ERIC LEE PHILLIPS,
    PetitionerAppellant,
    No. 11-5100
    v.                                               (D.C. No. 4:11-CV-00025-CVE-FHM)
    (N.D. Okla.)
    MIKE ADDISON, Warden,
    RespondentAppellee.
    ORDER DENYING CERTIFICATE OF APPEALABILITY*
    Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.
    Eric Lee Phillips, a state prisoner proceeding pro se, applies for a Certificate of
    Appealability (“COA”) to appeal the district court’s dismissal of his 
    28 U.S.C. § 2254
    petition. We deny a COA and dismiss his appeal.
    I
    After pleading guilty in Oklahoma state court to two counts each of first degree
    murder and unauthorized removal of a dead body, Phillips was sentenced to life
    * This order is not binding precedent, except under the doctrines of law of the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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    imprisonment on March 3, 2009. He did not move to withdraw his plea or otherwise
    pursue direct appeal of his conviction. On November 16, 2009, a state district court
    judge held a hearing to review Phillips’ sentence but denied his request for modification.
    On February 22, 2010, Phillips filed for state post-conviction relief, arguing that his plea
    was not knowing and voluntary. The trial court denied his claim, and the Oklahoma
    Court of Criminal Appeals (“OCCA”) affirmed on July 13, 2010.
    On August 23, 2010, Phillips’ aunt sent an email to Stanley Monroe, an attorney
    who represented Phillips in the state post-conviction proceedings, inquiring about the
    next steps in Phillips’ case. Monroe replied that they could discuss a potential federal
    habeas petition in September. On December 15, Phillips’ aunt sent another email seeking
    an update. Monroe replied that he thought that Phillips had a viable federal habeas claim
    and that the deadline to file a habeas petition would be July 13, 2011—one year from the
    OCCA’s denial of Phillips’ application for state post-conviction relief. However,
    Monroe indicated that he would not have time to prepare a petition for Phillips in the
    immediate future. He offered to assist Phillips with a pro se petition or to have Phillips
    wait until his workload lessened, “probably in May.”
    Phillips filed a pro se § 2254 petition on January 11, 2011. The district court
    determined that the deadline for filing that petition passed on August 20, 2010, dismissed
    the petition, and denied COA. In doing so, the court held that Phillips was entitled to
    statutory tolling for the time spent pursuing state post-conviction relief, but rejected
    Phillips’ argument that he was entitled to equitable tolling because of attorney Monroe’s
    -2-
    misadvice.
    II
    Subject to limited exceptions, the Anti-Terrorism and Effective Death Penalty Act
    (“AEDPA”) imposes a one-year statute of limitations on habeas petitions. 
    28 U.S.C. § 2244
    (d)(1). The one-year period usually starts at “the conclusion of direct review or
    the expiration of the time for seeking such review.” § 2244(d)(1)(A). Phillips’ AEDPA
    clock began to run on March 14, 2009, ten days after he was sentenced. See Okla. Ct.
    Crim. App. R. 4.2(a) (defendant who pleads guilty is permitted ten days to seek
    withdrawal of plea and appeal). Thus without any tolling of the statute of limitations, the
    period for Phillips to file a federal habeas petition would have expired on March 14,
    2010.
    However, an inmate is entitled to statutory tolling of the limitations period while a
    properly filed application for state post-conviction relief is pending. § 2244(d)(2). When
    Phillips filed his state post-conviction relief petition on February 22, 2010, he had 20
    days remaining to file a federal petition. His state filing suspended the limitations period
    until the OCCA denied his petition on July 13, 2010. Thus, the limitations period for
    Phillips’ federal petition expired 20 days after that date, on August 2, 2010.1
    1
    In several unpublished cases, we have held that a request for judicial review of a
    sentence under Okla. Stat. tit. 22, § 982a—a discretionary, non-appealable form of
    relief—does not toll the AEDPA limitations period. See, e.g., Bohon v. Oklahoma, 313
    F. App’x 82, 84 n.1 (10th Cir. 2008) (unpublished); Nicholson v. Higgins, 147 F. App’x
    7, 8 n.2 (10th Cir. 2005) (unpublished). Phillips does not argue he should be entitled to
    Continued . . .
    -3-
    Phillips argues that he is also entitled to equitable tolling of the limitations period
    because of attorney Monroe’s erroneous advice that a federal habeas petition would not
    be due until July 13, 2011. Equitable tolling “is only available when an inmate diligently
    pursues his claims and demonstrates that the failure to timely file was caused by
    extraordinary circumstances beyond his control.” Marsh v. Soares, 
    223 F.3d 1217
    , 1220
    (10th Cir. 2000). Because habeas petitioners have no constitutional right to counsel,
    “[a]ttorney miscalculation is simply not sufficient to warrant equitable tolling” without
    more. Lawrence v. Florida, 
    549 U.S. 327
    , 336-37 (2007). When attorney error rises to
    the level of egregious misconduct, however, we have allowed for equitable tolling. See
    Fleming v. Evans, 
    481 F.3d 1249
    , 1255-57 (10th Cir. 2007). In Fleming, for example,
    we concluded that equitable tolling could be warranted because a prisoner’s attorney
    failed to file a petition despite repeatedly assuring his client that he was doing so. 
    Id.
    Unacceptable though attorney Monroe’s mistake may be, it is a negligent
    miscalculation of the sort that our precedents deem unworthy of equitable tolling. Unlike
    the unscrupulous attorney in Fleming who intentionally deceived his client into believing
    he was filing a petition, Monroe simply provided incorrect advice. Further, it is not clear
    that Monroe’s error caused Phillips’ petition to be untimely: The only evidence Phillips
    has provided of Monroe’s misadvice are emails from August 24 and December 15,
    2010—after the AEDPA deadline had already expired. Thus, Phillips has not shown that
    tolling based on his § 982a motion, nor would the single day in which that motion was
    pending affect our conclusion as to timeliness.
    -4-
    Monroe’s negligence impeded a timely filing. Accordingly, the district court correctly
    concluded that Phillips is not entitled to equitable tolling.
    III
    We DENY a COA and DISMISS the appeal.
    Entered for the Court
    Carlos F. Lucero
    Circuit Judge
    -5-
    

Document Info

Docket Number: 11-5100

Citation Numbers: 448 F. App'x 817

Judges: Lucero, Anderson, Gorsuch

Filed Date: 10/26/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024