Randall v. Allbaugh ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 27, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
TYLER WELCH RANDALL,
Petitioner - Appellant,
v. No. 16-5109
(D.C. No. 4:16-CV-00043-CVE-FHM)
JOE M. ALLBAUGH, Interim Director, (N.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Tyler Randall, a state prisoner appearing pro se, seeks a certificate of
appealability (“COA”) to challenge the dismissal of his 28 U.S.C. § 2241 habeas
petition. Because Randall’s petition is time-barred, we deny a COA and dismiss the
appeal.
I
In 2009, Randall was sentenced in Oklahoma state court to a term of ten years,
with all but six months suspended, following his guilty plea to a charge of assault and
battery with a deadly weapon. Several years later, Oklahoma moved to revoke
Randall’s suspended sentence, alleging that he violated the terms of his probation by
*
This order is not binding precedent, except under the doctrines of law of the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.
committing first degree rape. The trial court revoked Randall’s suspended sentence
on October 5, 2012. On January 22, 2014, the Oklahoma Court of Criminal Appeals
(“OCCA”) affirmed Randall’s revocation order. He did not seek certiorari review.1
On September 2, 2014, Randall filed a “Motion for 24 Month Judicial Review”
in state court challenging the revocation order. His motion was denied on October
21, 2014. Randall then filed a § 2241 petition in the U.S. District Court for the
Northern District of Oklahoma. However, Randall moved to voluntarily dismiss the
petition because he had not exhausted state remedies. The district court granted his
motion. Randall filed an application for state post-conviction relief on May 1, 2015,
which the trial court denied on September 17, 2015. Randall did not appeal.
On January 25, 2016, Randall filed a second § 2241 petition challenging the
revocation order.2 The district court dismissed the petition as time-barred and denied
a COA. Randall filed a timely application for a COA with this court.
1
Randall was convicted of second degree rape in a separate proceeding.
2
Because Randall challenges the revocation of his suspended sentence rather
than the underlying conviction, his claims are properly brought under § 2241. See
McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (“Petitions
under § 2241 are used to attack the execution of a sentence . . . .”); State v. Hejduk,
232 P.2d 664, 667 (Okla. Crim. App. 1951) (“When execution of a sentence is
suspended, the judgment itself is not impaired or limited. The time for its execution
is merely deferred . . . .”); accord Stoltz v. Sanders, Nos. 00-6188 & 00-6288, 2000
U.S. App. LEXIS 29618, at *5 (10th Cir. 2000) (unpublished) (“To the extent Mr.
Stoltz is challenging the revocation of his [suspended] sentence, we construe his
petition as filed under 28 U.S.C. § 2241 because it challenges the execution of his
sentence, rather than its validity.”).
2
II
A state prisoner may not appeal the denial of habeas relief under § 2241
without a COA. See Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). If a
habeas petition is disposed of on procedural grounds, we will issue a COA only if the
petitioner shows both “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).
A § 2241 petition is governed by the one-year limitations period set forth in
§ 2244(d)(1). Dulworth v. Evans, 442 F.3d 1265, 1268 (10th Cir. 2006). Under that
provision, Randall was required to file suit within one year of the “date on which the
judgment became final by the conclusion of direct review or the expiration of the
time for seeking such review.” § 2244(d)(1). The revocation order challenged by
Randall became final on April 22, 2014, the last day in which he could have filed a
timely petition for writ of certiorari with the United States Supreme Court. See
Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001); Sup. Ct. R. 13(1).
The limitations period is tolled during the pendency of a “properly filed
application for State post-conviction or other collateral review.” § 2244(d)(2).
During the relevant period, Randall filed a motion for judicial review pursuant to
Okla. Stat. tit. 22, § 982a, which was pending for 49 days,3 and an application for
3
We will assume that a motion filed under Okla. Stat. tit. 22, § 982a qualifies
for tolling pursuant to § 2244(d)(2). This is an unresolved issue in our circuit.
3
state post-conviction relief, which was pending for 139 days. Randall is also entitled
to thirty days of tolling during the appeal window from the denial of his post-
conviction application. See Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000);
Okla. Stat. tit. 22, ch. 18, app., R.5.2(C)(2). He is not entitled to additional time after
the denial of his § 982a motion, because that statute does not provide for appellate
review. Doby, 632 F. App’x at 488. Nor did Randall’s first federal habeas petition
toll the limitations period. See Duncan v. Walker, 533 U.S. 167, 181 (2001).
Accordingly, Randall’s limitations period was tolled for a total of 218 days, until
November 30, 2015.4 His January 25, 2016 petition was thus untimely.
Randall argues that he is entitled to equitable tolling because Cimarron
Correctional Facility, where Randall is housed, experienced institutional lockdowns
during much of 2015. Equitable tolling may be appropriate if a litigant establishes:
“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
The district court declined to equitably toll the limitations period. We review that
decision for abuse of discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir.
2003).
Compare Doby v. Dowling, 632 F. App’x 485, 488 (10th Cir. 2015) (unpublished)
(assuming § 982a motion tolls limitations period), with Nicholson v. Higgins, 147 F.
App’x 7, 8 n.2 (10th Cir. 2005) (unpublished) (stating that § 982a does not toll the
limitations period, but holding petition untimely regardless).
4
The limitations period would be tolled until November 27, 2015, the Friday
after Thanksgiving. Because, as the district court noted, the court is traditionally
closed on that day, the limitations period is extended until Monday, November 30,
2015. See Fed. R. Civ. P. 6(a)(3)(A).
4
Randall did not allege specific facts showing that his inability to access the
law library during lockdown periods prevented his timely filing of a petition. The
district court noted that Randall was able to file legal documents while on lockdown.
Further, the limitations period was already statutorily tolled for most of the lockdown
periods. Under these circumstances, we cannot say the district court abused its
discretion. See Phares v. Jones, 470 F. App’x 718, 719 (10th Cir. 2012)
(unpublished) (“The mere fact of a prison lockdown . . . does not qualify as
extraordinary absent some additional showing that the circumstances prevented [the
petitioner] from timely filing his habeas petition.”).
III
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
5