Anderlohr v. Mullen ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
August 26, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
FREDERICK BRENT ANDERLOHR,
Petitioner - Appellant,
No. 07-7076
v. (D.C. No. 06-cv-197-RAW-KEW)
(E.D. Okla.)
MIKE MULLEN, Warden,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.
Petitioner-Appellant Frederick Brent Anderlohr, appearing pro se, seeks a
certificate of appealability (“COA”) to challenge the district court’s dismissal of
his 28 U.S.C. § 2241 petition for a writ of habeas corpus. We have jurisdiction
under 28 U.S.C. § 1291. Reviewing Mr. Anderlohr’s filings liberally, 1 we hold
*
This Order and Judgment is not binding precedent, except under the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. 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 case is therefore ordered submitted without oral argument.
1
Because Mr. Anderlohr is proceeding pro se, we review his pleadings
(continued...)
that no reasonable jurist could conclude that the district court’s dismissal was
incorrect. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, we
DENY Mr. Anderlohr’s request for a COA and dismiss the appeal.
I. BACKGROUND
On March 5, 1991, Mr. Anderlohr was paroled after serving a state
sentence. He was arrested on a new charge in January of 1992. Following his
arrest, in September 1992, the Governor of Oklahoma issued a certificate of
parole revocation. It indicated that Mr. Anderlohr would serve the time
associated with his revocation offense concurrently with the prison term imposed
for the January 1992 charge. In January 1993, however, the Governor amended
the parole certificate and directed that the prison time related to the revocation
offense would in fact run consecutively to the prison time arising from the
January 1992 charge. Mr. Anderlohr was notified of this amendment on January
5, 1993.
Mr. Anderlohr challenged the amendment of the parole certificate with the
Department of Corrections Sentence Administrator and was informed by a letter
dated November 22, 1996, that the Governor was legally authorized to amend his
parole certificate to run the time on his revocation offense consecutively and that
1
(...continued)
and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard
v. U. S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
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Mr. Anderlohr’s sentences would be served consecutively unless the Governor
further amended the parole certificate. Mr. Anderlohr unsuccessfully pursued his
challenge of the parole certificate amendment in the prison grievance system in
1999 and 2000. On May 9, 2005, Mr. Anderlohr filed a state habeas petition on
this issue, which was denied. The state appellate court affirmed the denial on
April 18, 2006.
On May 22, 2006, Mr. Anderlohr filed this § 2241 motion with the district
court. The district court dismissed his motion, finding that it was time-barred
because even under the most generous interpretation of when the one-year
limitations period began, Mr. Anderlohr only had until November 22, 1997, to file
his federal habeas petition. The district court also noted that statutory tolling
would not apply because Mr. Anderlohr did not seek state administrative or
judicial relief to address the allegedly unauthorized certificate amendment until
after the one-year time period had expired. Mr. Anderlohr appealed.
II. DISCUSSION
Section 2241 petitions are subject to a one-year period of limitation.
Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003). This limitations period
begins to run on the latest of four dates, which are set out in 28 U.S.C. §
2244(d)(1). Of relevance here is the date specified in subsection (D) of that
statute—that is, “the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.” 28
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U.S.C. § 2244(d)(1)(D). Where “a petitioner timely and diligently exhausts his
administrative remedies,” the running of the clock under this provision “does not
commence until the decision rejecting his administrative appeal becomes final.”
Dulworth v. Evans, 442 F.3d 1265, 1268 (10th Cir. 2006) (emphasis added); see
also Steffey v. Sirmons, 273 F. App’x 748, 750 (10th Cir. 2008). Moreover, “[t]he
one-year period of limitation for filing a federal habeas petition is tolled or
suspended during the pendency of a state application for post-conviction relief
properly filed during the limitations period.” May v. Workman, 339 F.3d 1236,
1237 (10th Cir. 2003).
The district court properly concluded that the one-year period of limitation
already had run by the time Mr. Anderlohr filed his habeas petition with the
district court on May 22, 2006. Mr. Anderlohr had all of the factual predicates
for his claim by November 22, 1996, at the very latest. 2 On that date, he received
2
Mr. Anderlohr suggests that he was not subject to the one-year
limitations period until June of 2004, when he began serving his consecutive
sentence related to the revocation offense, because he supposedly “could NOT
file” a habeas action challenging the certificate that ran his sentence on this
revocation offense consecutively until he actually was in custody on the offense.
Pet’r’s Opening Br. at 2(a). Supreme Court precedent—not cited by Mr.
Anderlohr—points in a different direction. See Peyton v. Rowe, 391 U.S. 54, 67
(1968) (“[A] prisoner serving consecutive sentences is ‘in custody’ under any one
of them for purposes of § 2241(c)(3).”). We note, moreover, that Mr. Anderlohr’s
cited federal authority does not support this suggestion. For example, one of the
cases cited by Mr. Anderlohr, Maleng v. Cook, 490 U.S. 488 (1989), actually
militates in favor of a contrary conclusion. See id. at 493 (“We do think,
however, that respondent may challenge the sentences imposed upon him . . . even
(continued...)
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the letter from the Department of Corrections Sentence Administrator informing
him that his sentences were running consecutively and would continue to do so
absent further amendment by the Governor. No administrative proceedings
prevented this date from becoming the operative start date for the limitations
clock because Mr. Anderlohr did not timely pursue administrative remedies. See
Steffey, 273 F. App’x at 750 (“Nothing in the record indicates Steffey timely
pursued and exhausted his administrative remedies.”). Indeed, Mr. Anderlohr did
not seek administrative relief until more than one year after the issuance of the
Sentence Administrator’s letter when, absent some form of statutory tolling, the
limitations period would have expired. As the district court correctly found, there
were no grounds to permit statutory tolling. In particular, Mr. Anderlohr did not
2
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though he is not presently serving them.”). And Mr. Anderlohr’s reliance on the
Seventh Circuit’s decision in Dunne v. Keohane, 14 F.3d 335 (7th Cir. 1994), is
misplaced. Dunne is inapposite. It simply commented upon the propriety of
instituting a habeas action rather than a direct appeal from a conviction and
sentence where the petitioner is challenging “the implementation of the judgment
by the prison authorities” and, therefore, “the wrong if any occurred after he
began serving his sentence.” Id. at 337. Dunne does not purport to say anything
about the running of the statute of limitations when a petitioner is challenging the
imposition of a consecutive sentence. At bottom, Mr. Anderlohr knew no later
than November 1996 the position of the Oklahoma Department of Corrections:
that he was obliged to serve his revocation prison term consecutively to the prison
term arising from his January 1992 offense. This provided a sufficient factual
predicate for Mr. Anderlohr to recognize that he would need to mount a challenge
if he hoped to avoid this result. Accordingly, having concluded that it is without
merit, we reject Mr. Anderlohr’s assertion that the limitations period did not
begin to run until June 2004.
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seek post conviction relief in the state courts until more than one year after the
issuance of the letter.
Accordingly, Mr. Anderlohr had until November 22, 1997, to file his
federal habeas corpus action. See 28 U.S.C. § 2244(d)(1)(D). 3 He failed to do so.
Therefore, reasonable jurists could not disagree with the district court’s
conclusion that Mr. Anderlohr’s habeas action is time-barred.
Accordingly, we DENY Mr. Anderlohr’s request for a COA and dismiss the
appeal.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
3
Although the district court did not discuss equitable tolling, § 2244
can be tolled for equitable reasons. However, “we have limited equitable tolling
of the one-year limitations period to rare and exceptional circumstances.”
Burger, 317 F.3d at 1141 (internal quotation marks omitted). Our own review of
the record indicates that no such circumstances are present here. Accordingly,
equitable tolling does not apply.
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