Green v. State of Kansas ( 2006 )


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  •                                                                        F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS August 3, 2006
    TENTH CIRCUIT                    Elisabeth A. Shumaker
    Clerk of Court
    ANDREW GREEN, JR.,
    Petitioner-A ppellant,
    No. 06-3118
    v.
    (D.C. No. 05-CV-3450-SAC)
    (Kansas)
    STATE OF KAN SAS; PHIL KLINE.
    Attorney General of Kansas,
    Respondents-Appellees.
    ORDER *
    Before M U R PHY , SE YM OU R, and M cCO NNELL, Circuit Judges.
    Andrew Green, Jr., a Kansas state prisoner appearing pro se, 1 seeks a
    certificate of appealability (COA) to challenge the district court’s dismissal of his
    
    28 U.S.C. § 2254
     habeas petition as time-barred. 2 See 
    28 U.S.C. § 2253
    (c)(1)(A )
    *
    This order is not binding precedent, except under the doctrines of law of
    the case, res judicata, and collateral estoppel.
    1
    Because he is proceeding pro se, we review M r. Green’s pleadings and
    filings liberally. See Haines v. Kerner, 
    404 U.S. 519
    , 520-21 (1972); Hall v.
    Bellmon, 
    935 F.2d 1106
    , 1110 (10th Cir. 1991).
    2
    The district court denied M r. Green’s application for a COA, but granted
    his motion to proceed in form a pauperis on appeal.
    (prisoner must obtain a COA before appealing the dismissal of a § 2254 petition).
    W here the district court dismisses a petition on procedural grounds, the inmate
    must show in his application for a COA “that it is reasonably debatable whether
    (1) the petition states a valid claim of the denial of a constitutional right, and (2)
    the district court’s procedural ruling is correct.” Dulworth v. Evans, 
    442 F.3d 1265
    , 1266 (10th Cir. 2006), citing Slack v. M cDaniel, 
    529 U.S. 473
    , 483-84
    (2000). B ecause w e conclude the district court’s procedural ruling is correct, w e
    deny M r. Green’s application for a COA and dismiss his appeal.
    M r. Green was convicted of first-degree murder and aggravated battery
    arising from a prison riot. On July 12, 1996, those convictions were affirmed.
    State v. Green, 
    920 P.2d 414
     (Kan. 1996). In 2003, M r. Green filed a motion for
    postconviction relief alleging ineffective assistance of counsel. That motion was
    denied by the trial court following an evidentiary hearing, and affirmed in M ay
    2005. Green v. State, 
    110 P.3d 1053
     (K an. App. 2005).
    M r. Green filed a § 2254 habeas petition in district court on November 30,
    2005, claiming his trial counsel was ineffective. The district court ordered M r.
    Green to show cause why his petition should not be dismissed for having been
    filed outside the one-year period of limitation set forth in 
    28 U.S.C. § 2244
    (d)(1).
    M r. Green in his response did not deny that his petition was facially untimely, but
    asserted the one-year period was subject to equitable tolling. Specifically, he
    claimed that “[f]rom M ay 22, 1993 until Sept.2003 I was in Administrative
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    Segregation and again from Feb. 6, 2004 until present.” Rec. at 5. Due to this
    confinement he said he was unable to visit the prison’s law library and had to
    request legal materials through a cumbersome and time-consuming process. He
    further claimed prison staff were impervious to his requests for timely delivery
    and all steps of the process were “done at [their] convenience.” 
    Id.
     M oreover,
    because his underlying conviction was for the murder and assault of corrections
    officers, M r. Green implied that prison staff may have dragged their feet more
    than usual in complying with his requests.
    M r. Green also asserted his petition was untimely because he had difficulty
    obtaining legal advice in filing his state motion for postconviction relief and his §
    2254 petition. As evidence of his efforts to obtain advice, he attached two letters
    to his show cause response. The first letter, dated July 16, 1997, from the office
    of the state’s chief appellate defender recommends M r. Green contact Legal
    Services for Prisoners for help filing postconviction motions. The second letter,
    dated M arch 1, 1999, from an attorney with Legal Services for Prisoners states
    that his office will review completed forms for postconviction relief, but will not
    assist a prisoner in filling them out. The letter also advises M r. Green how to
    obtain trial transcripts.
    The district court dismissed M r. Green’s § 2254 habeas petition as time-
    barred. In so doing, the court noted that M r. Green failed to seek any form of
    postconviction relief until 2003, by which time the one-year period of limitation
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    for filing a federal habeas petition had long since expired. The court further held
    that the one-year period was not subject to equitable tolling because M r. Green
    failed to show that extraordinary circumstances prevented him from filing on time
    or that he pursued his habeas claims diligently. M r. Green challenges these
    findings.
    As already noted, § 2244(d)(1) states that “[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.” 
    28 U.S.C. § 2244
    (d)(1). In the
    present case, the one-year period began to run on October 12, 1996, after the
    Kansas Supreme Court affirmed M r. Green’s conviction on July 12, 1996, and the
    three-month period for seeking a writ of certiorari from the United States
    Supreme Court expired. See Rhine v. Boone, 
    182 F.3d 1153
    , 1155 (10th Cir.
    1999). Accordingly, M r. Green had one year either to file a § 2254 habeas
    petition or to toll the one-year period of limitation by filing a state petition for
    postconviction relief. Because he did not file a state petition until 2003, by which
    time § 2244(d)(1)’s one-year period of limitation had expired, his habeas petition,
    was untimely by more than eight years. The only issue is whether M r. Green
    established a case for equitable tolling.
    In M iller v. M arr, 
    141 F.3d 976
    , 978 (10th Cir. 1998), we recognized that §
    2244(d) is not jurisdictional and is subject to equitable tolling. “H owever, this
    equitable remedy is only available when an inmate diligently pursues his claims
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    and demonstrates that the failure to timely file w as caused by extraordinary
    circumstances beyond his control.” M arsh v. Soares, 
    223 F.3d 1217
    , 1220 (10th
    Cir. 2000), cert. denied, 
    531 U.S. 1194
     (2001).
    Equitable tolling would be appropriate, for example, when a
    prisoner is actually innocent, when an adversary’s conduct – or other
    uncontrollable circumstances – prevents a prisoner from timely
    filing, or when a prisoner actively pursues judicial remedies but files
    a defective pleading during the statutory period. Simple excusable
    neglect is not sufficient. M oreover, a petitioner must diligently
    pursue his federal habeas claims; a claim of insufficient access to
    relevant law . . . is not enough to support equitable tolling.
    Gibson v. Klinger, 
    232 F.3d 799
    , 808 (10th Cir. 2000) (internal citations and
    quotation marks omitted).
    A prisoner’s confinement in administrative segregation may qualify as an
    extraordinary circumstance beyond his control, see Espinoza-M atthews v.
    California, 
    432 F.3d 1021
    , 1027-28 (9th Cir. 2005), but equitable tolling is
    justified only where the prisoner has shown that despite his segregated
    confinement he diligently pursued his habeas claims and his confinement
    prevented him from filing on time. M r. Green has not made such a showing.
    Nowhere does he claim that he was denied access to legal materials because of his
    confinement. Although he asserts the process of acquiring legal materials was
    slow and unwieldy and perhaps subject to the caprice of unfriendly staff, he does
    not contend his confinement prevented him from filing in a timely fashion, only
    that it made it more difficult. Such difficulty, does not explain why M r. Green
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    took nearly six years after his conviction became final to pursue his state habeas
    claims. Two letters requesting advice in six years do not support a finding of due
    diligence. Because M r. Green has not shown that he diligently pursued his habeas
    claims and was prevented by extraordinary circumstances beyond his control from
    filing his § 2254 petition within the one-year period of limitation, he may not rely
    on equitable tolling as an excuse. Reasonable jurists would not debate the district
    court’s dismissal of his petition as untimely.
    In his COA application, M r. Green implies that any procedural bar to his
    habeas claims should be excused to prevent a fundamental miscarriage of justice
    on the grounds that he is actually innocent. To prevail on a claim of actual
    innocence, M r. Green “must identify evidence that affirmatively demonstrates his
    innocence. A criminal defendant is required to provide evidence that does more
    than simply undermine the finding of guilt against him or her.” Phillips v.
    Ferguson, 
    183 F.3d 769
    , 774 (10th Cir. 1999) (internal citations and quotations
    marks omitted). Our review of the record establishes that nowhere other than in
    his COA application has M r. Green claimed actual innocence. Nor has he
    identified evidence affirmatively demonstrating his innocence. Accordingly, he
    has not shown the possibility of a fundamental miscarriage of justice excusing the
    timeliness bar.
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    For the aforementioned reasons, we DENY M r. Green’s application for a
    COA and DISM ISS his appeal.
    ENTERED FOR THE COURT
    Stephanie K. Seymour
    Circuit Judge
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