Stanley v. McKune ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 23, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
DANNY STANLEY,
Petitioner - Appellant, No. 05-3100
v. (D.C. No. 05-CV-3019-SAC)
DAVID R. McKUNE, Warden, (D. Kansas)
Lansing Correctional Facility;
ATTORNEY GENERAL OF THE
STATE OF KANSAS,
Respondents - Appellees.
ORDER
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Pro se Applicant Danny Stanley filed an application for a writ of habeas
corpus under 28 U.S.C. § 2254 in the United States District Court for the District
of Kansas on January 14, 2005. He is currently serving a 144-month sentence for
his 1996 conviction in Kansas state court. The application raises claims of
ineffective assistance of counsel and double jeopardy.
The district court dismissed Applicant’s application as untimely when he
failed to show cause, as required by the district court’s January 20, 2005, order,
for his failure to file his application within the one-year limitations period
imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
See 28 U.S.C. § 2244(d)(1). Applicant filed a notice of appeal, requested the
district court to issue a certificate of appealability (COA), see 28 U.S.C.
§ 2253(c)(1) (requiring a COA to appeal), and moved for leave to proceed in
forma pauperis (IFP). The district court granted the IFP motion but denied the
COA application. Applicant seeks from this court a COA allowing him to
proceed with his habeas application. Id. Because the district court correctly
dismissed the habeas application as time-barred, we deny the application for a
COA.
Under the AEDPA “ [a] certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “When the district court denies a habeas petition
on procedural grounds without reaching the prisoner’s underlying constitutional
claim, a COA should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). “Where a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not conclude
either that the district court erred in dismissing the petition or that the [applicant]
should be allowed to proceed further.” Id. We recognize that in determining
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whether to issue a COA, a “full consideration of the factual or legal bases
adduced in support of the claims” is not required. Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). Instead, the decision must be based on “an overview of the
claims in the habeas petition and a general assessment of their merits.” Id.
The AEDPA imposes a one-year time limit for state prisoners to file an
application for habeas corpus once the state conviction becomes final. 28 U.S.C
§ 2244(d)(1). Because Applicant’s January 1996 conviction became final prior to
the passage of AEDPA, he had one year from its effective date of April 24, 1996,
to file his habeas corpus application. Adams v. LeMaster, 223 F.3d 1177, 1180
(10th Cir. 2000). Applicant filed no federal claim for relief until his January 14,
2005, application for habeas corpus. Although AEDPA’s one-year limitations
period may be tolled during the pendency of state postconviction review, 28
U.S.C. § 2244(d)(2), Applicant filed no pleadings for review in state court until
June 13, 2002 ( a petition for writ of mandamus).
Applicant argues that AEDPA’s time limitation should be equitably tolled
because his attorney failed to file a direct appeal despite Applicant’s instruction to
do so. But equitable tolling is appropriate “only in rare and exceptional
circumstances,” such as “when a prisoner is actually innocent,” or “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
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defective pleading during the statutory period.” Gibson v. Klinger, 232 F.3d 799,
808 (10th Cir. 2000) (internal quotation marks and citations omitted). An
applicant must be diligent in filing his own claims, and misplaced reliance on an
attorney does not explain why Applicant did not file his first postconviction
pleading until six years after his conviction.
Although Applicant is correct in his assertion that an attorney’s failure to
file a requested appeal constitutes ineffective assistance of appellate counsel, Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000), he is incorrect in assuming that
counsel’s ineffectiveness is always a “rare and exceptional circumstance” worthy
of equitable tolling. Applicant has not alleged circumstances that prevented him
from discovering his counsel’s failure to file the direct appeal for the six years
from the date of his conviction to the filing of his first postconviction pleading. It
cannot be said that Applicant has diligently pursued his federal claims.
For the same reasons, Applicant cannot obtain the benefit of 28 U.S.C
§ 2244(d)(1)(D), which allows for statutory tolling of the one-year limitations
period until “the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.” It
should not have taken Applicant a matter of years to realize that his attorney had
failed to pursue the allegedly requested appeal.
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Because the district court’s procedural ruling would not be debatable among
jurists of reason, we DENY Applicant’s application for a COA and DISMISS the
appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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