Handy v. Everett , 12 F. App'x 804 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 2 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
DWIGHT DEAN HANDY,
Petitioner - Appellant,
vs. No. 00-8067
(D.C. No. 99-CV-269)
VANCE EVERETT, in his official (D. Wyo.)
capacity as Warden, Wyoming
Department of Corrections State
Penitentiary; WYOMING
ATTORNEY GENERAL,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before EBEL, KELLY, and LUCERO, Circuit Judges. **
Mr. Handy, an inmate appearing pro se, 1 seeks to appeal from the district
court’s denial of his petition for habeas corpus relief under 28 U.S.C. § 2254.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
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 appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
As permitted by Johnson v. Avery, 393 U.S. 483, 490 (1969), another
1
inmate assisted Mr. Handy in the preparation of this appeal.
Doc. 2. We grant the application to proceed in forma pauperis, but in light of Mr.
Handy’s failure to make “a substantial showing of the denial of a constitutional
right,” we deny his application for a COA and dismiss the appeal. Slack v.
McDaniel, 529 U.S. 473, 482 (2000) (citation omitted).
Because Mr. Handy filed the instant petition on December 22, 1999,
subsequent to the effective date of the Antiterrorism and Effective Death Penalty
Act of 1996, the limitations period set forth in 28 U.S.C. § 2244(d)(1) applies to
this action. Doc. 1. Mr. Handy entered a guilty plea on November 27, 1989, and
his motion to withdraw the plea was denied on January 23, 1991. For prisoners,
like Mr. Handy, whose convictions became final before April 24, 1996, the
one-year statute of limitations begins to run on that date and ends on April 23,
1997. Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998). We toll the
one-year limitation period only for the time Mr. Handy had a “properly filed
application” pending for state post-conviction relief. 28 U.S.C. § 2244(d)(2);
Hoggro, 150 F.3d at 1226.
By April 24, 1996, Mr. Handy had filed, and the Wyoming state courts had
denied, two petitions for post-conviction relief. The first petition was denied on
June 8, 1993; the second on February 13, 1995. Under Wyoming law, a final
order entered upon an application for post-conviction relief “may be reviewed by
the supreme court [of Wyoming] on writ of certiorari . . . pursuant to the
-2-
Wyoming Rules of Appellate Procedure.” Wyo. Stat. Ann. § 7-14-107 (Michie
1995). “A petition for a writ of review must be filed with the reviewing court
within 11 days after entry of the order from which relief is sought.” Wyo. R.
App. P. 13.03(a) (1995) (emphasis added). “On March 9, 1995, Mr. Handy filed
for a Petition for Writ of Review in the trial court,” but the court never acted on
that petition. Pet’r Br. at 5 (emphasis added). Even if we overlook the possibility
that Mr. Handy’s petition was untimely, cf. Kittles v. Rocky Mountain Recovery,
Inc., 1 P.3d 1220, 1222-23 (Wyo. 2000) (holding that compliance with Rule
13.03(a)’s eleven-day deadline is not jurisdictional), we cannot ignore the fact
that it was filed in the wrong court. Accordingly, the petition was not “properly
filed” and therefore cannot operate to toll the limitations period. 28 U.S.C. §
2244(d)(1); see also Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999).
Even if the petition had been “properly filed,” Mr. Handy’s tolling
argument would fail nonetheless because the petition was not “pending” at any
point during the relevant one-year period. The Wyoming Rules of Appellate
Procedure provide that a certiorari petition“shall be deemed denied if the
reviewing court does not accept review within 30 days from the date of the
petition.” Wyo. R. App. P. 13.03(c). Thus, even if we assume that Mr. Handy’s
petition for a writ of review was “properly filed” on March 9, 1995, it was
effectively denied on April 8, 1995, over one year before the limitations period
-3-
even began. Section 2244(d)(2) is therefore inapplicable and the instant petition
was untimely under § 2244(d)(1).
Accordingly, we DENY Mr. Handy’s application for a COA and DISMISS
the appeal. Mr. Handy’s motion to proceed in forma pauperis is GRANTED, as is
his motion to supplement the record.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-4-