Pfeil v. Everett , 9 F. App'x 973 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 6 2001
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
ROGER DUANE PFEIL,
Petitioner-Appellant,
v. No. 01-8003
(D. Wyo.)
VANCE EVERETT, Warden, (D.Ct. No. 00-CV-93-B)
Wyoming State Penitentiary;
WYOMING ATTORNEY GENERAL,
Respondent-Appellee.
____________________________
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The 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.
Appellant Roger Duane Pfeil, a state inmate appearing pro se, appeals the
district court’s decision denying his federal habeas corpus petition filed pursuant
to 28 U.S.C. § 2254 as untimely filed. We deny Mr. Pfeil a certificate of
appealability 1 and dismiss his appeal.
Following his guilty plea, the State of Wyoming convicted Mr. Pfeil of
second degree murder and sentenced him to twenty-five to forty-five years
imprisonment on July 28, 1997. Mr. Pfeil did not file a direct appeal. Mr Pfeil
also did not file any state post-conviction or other pleading until November 18,
1998 when he filed a motion to withdraw his guilty plea. The state district court
denied his motion and Mr. Pfeil appealed to the Wyoming Supreme Court which
denied certiorari; the United States Supreme Court also denied certiorari. On
August 2, 1999, Mr. Pfeil filed a state habeas corpus which he also unsuccessfully
litigated thorough the state courts until the Supreme Court ultimately denied
certiorari. Finally, on May 9, 2000, Mr. Pfeil filed his federal habeas corpus
petition under § 2254 alleging multiple errors in his conviction and sentencing.
1
The district court made no ruling on Mr. Pfeil’s request for a certificate of
appealability. Under our Emergency General Order of October 1, 1996, we deem the
district court’s failure to issue a certificate of appealability within thirty days after filing
the notice of appeal as a denial of his certificate. Mr. Pfeil renewed his request for a
certificate of appealability on appeal.
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The federal district court referred Mr. Pfeil’s petition to a magistrate judge
who issued a report and recommendation. The magistrate judge recommended
denying Mr. Pfeil’s petition as untimely filed. The magistrate judge determined
Mr. Pfeil’s conviction became final on August 27, 1997, because he had thirty
days after his July 28, 1997 sentence to file a direct appeal to the Wyoming
Supreme Court. The magistrate judge also determined that because Mr. Pfeil did
not file a direct appeal, the ninety-day period for filing an appeal to the United
States Supreme Court did not apply in determining the date his conviction became
final. As such, the magistrate judge determined the one-year limitation period for
filing a federal habeas petition ended August 27, 1998, and that none of the state
post-conviction pleadings tolled the one-year limitation period because Mr. Pfeil
did not file them until after this limitation period expired.
The magistrate judge also rejected Mr. Pfeil’s request for equitable tolling,
in which he alleged he experienced a prison lockdown at the beginning of
sentence, from August to December 1997, and could not conduct legal research
for the purpose of filing for state post-conviction relief. The magistrate judge
determined Mr. Pfeil had at least eight months after the lockdown to diligently
pursue his claims and failed to allege with sufficient specificity how he was
denied “a lack of access and the steps he took to diligently pursue his federal
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claims.”
Mr. Pfeil timely filed objections to the magistrate judge’s report and
recommendation, claiming in part that equitable tolling should apply because he
was in a total lockdown in the West Unit section of the prison until late December
1997, during which time: 1) he was allowed only an hour out of his cell per day,
and 2) he could not speak to other inmates to learn “what [remedies were]
available” or how to order legal books. After the cells were unlocked, he claimed
he was repeatedly denied “kite” or “kiting” requests or orders for legal books
from the law library for the period from November 11, 1997 until his transfer to
the East Unit section of the prison on March 25, 1998.
In his objections, Mr. Pfeil pointed out that from March 25 until October
1998, he “was in the East Unit which was open and had normal access to the law
library for research except under certain instances.” However, despite being in
the open prison section, Mr. Pfeil contended he was denied library access because
he was required to work at the prison auto shop or else face return to the
lockdown section, disciplinary actions, or decreased parole possibilities. Mr.
Pfeil further pointed out he could not access the law library at night due to its
6:00 p.m. closure, wrote multiple “kites” requesting it be opened on weekends
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and nights, and tried to leave work early or get other inmates to obtain books for
him. He explained he eventually obtained a book on post conviction remedies
called “Post-Conviction Remedies; a Self Help Manual by Manville and Brezna,”
but had difficulty understanding what remedies were available. Finally, he
alleged that in October 1998 he finally gained access to the prison law library
because his boss was on a hunting trip, and mailed his motion to withdraw his
guilty plea on November 13, 1998.
After reviewing Mr. Pfeil’s objections thereto, the district court issued an
order adopting the magistrate judge’s report and recommendation and denying Mr.
Pfeil’s petition. In so doing, the district court found Mr. Pfeil’s petition untimely
and rejected Mr. Pfeil’s argument that equitable tolling should apply. The district
court reasoned that the prison lockdown Mr. Pfeil experienced only lasted until
December 1997 and his inability to obtain certain requested legal materials lasted
only from November to December 1997 when the lockdown was lifted. The
district court reasoned that Mr. Pfeil was not prevented from diligently pursuing
his claims within the one-year limitation period after December of 1997, but did
not explicitly address Mr. Pfeil’s contentions concerning his access to legal
materials from March to October 1998, while in the prison’s open section.
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On appeal, Mr. Pfeil raises multiple issues claiming the district court erred
in not tolling the one-year limitation period. Specifically, Mr. Pfeil complains the
district court erred in: 1) not tolling the limitation period during the lockdown
period and later due to his work schedule; 2) not applying either mandatory or
discretionary tolling because of the court’s misinterpretation of the standards set
forth in § 2244(d)(1)(B); 3) not tolling for “time periods between pending timely
filed state post conviction or other collateral proceedings” or the periods his post-
conviction proceedings were appealed to the United States Supreme Court; 4)
violating the Suspension Clause of the Constitution by not applying either
mandatory or discretionary tolling; 5) not considering the actual innocence or
miscarriage of justice exception to the one-year statute of limitations; and 6) not
finding a jurisdictional defect exception to the one-year limitation period. Among
other things, Mr. Pfeil also alleges the district court erred in dismissing his
petition with prejudice, and not granting his motion to disqualify the state and
strike its response to his petition due to its “improper conduct and constitutional
conflict.” Mr. Pfeil also sets forth numerous grounds in support of his petition on
the merits.
“In reviewing the denial of a habeas corpus petition, we review the district
court’s factual findings under a clearly erroneous standard.” Rogers v. Gibson,
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173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied, 528 U.S. 1120 (2000). We
review de novo both the district court’s interpretation of § 2244(d), see United
States v. Fillman, 162 F.3d 1055, 1056 (10th Cir. 1998), and its legal basis for
dismissal of Mr. Pfeil’s habeas corpus petition. Rogers, 173 F.3d at 1282.
Applying this standard of review, and after a careful review of the record,
we conclude, for substantially the same reasons as the district court, that Mr. Pfeil
did not file a timely petition. First, as the district court determined, Mr. Pfeil’s
direct appeal and his judgment and sentence became final August 27, 1997.
Because Mr. Pfeil did not file a direct appeal to the Wyoming Supreme Court, the
ninety-day time period for appeals to the United States Supreme Court did not
extend the date that his judgment and sentence became final. See United States
Supreme Court Rule 13 (stating ninety-day period applies only to decisions from
the state court of last resort); cf. Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.
1999) (holding ninety-day period applies following a direct appeal of the
conviction), cert. denied, 528 U.S. 1084 (2000). Thus, the one-year statute of
limitations began August 27, 1997 and expired August 26, 1998. See 28 U.S.C.
§ 2244(d)(1); Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998). In
addition, even if Mr. Pfeil’s motion to withdraw his guilty plea is considered a
post-conviction or collateral attack under § 2244(d)(2), neither it nor his later
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state habeas action were filed during the pendency of the one-year limitation
period. Therefore, no mandatory tolling occurred. Barnett v. LeMaster, 167 F.3d
1321, 1322-23 (10th Cir. 1999). Furthermore, the period in which Mr. Pfeil filed
his petition for certiorari in his post-conviction actions with the Supreme Court
does not apply for tolling purposes. See Rhine, 182 F.3d at 1155-56.
As to Mr. Pfeil’s contention equitable tolling should apply, we recognize
the one-year statute of limitations may be equitably tolled, but only “when an
inmate diligently pursues his claims and demonstrates that the failure to timely
file was caused by extraordinary circumstances beyond his control.” Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000), cert. denied, 121 S. Ct. 1195(2001). In this case, the issue is whether Mr. Pfeil’s alleged limited access to the
prison law library denied him “meaningful access to the courts” which posed an
extraordinary circumstance sufficient to equitably toll the limitation period. We
recognize the right to access the courts is protected from state prison officials
actively interfering with an inmate’s attempt to prepare or file legal documents.
See Lewis v. Casey, 518 U.S. 343, 350 (1996). The Supreme Court has
recognized that prison law libraries and legal assistance programs are one means
of ensuring the right of access, but that an inmate must demonstrate the alleged
shortcomings in the library or legal assistance program hindered his effort to
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pursue a legal claim. Id. at 351. As such, inmates must show they diligently
pursued their claims. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert.
denied, 525 U.S. 891 (1998). Inmates are not guaranteed the “wherewithal to
transform themselves into litigating engines” but only the tools “inmates need in
order to attack their sentences, directly or collaterally.” Lewis, 518 at 355.
“[T]he Constitution does not require that prisoners (literate or illiterate) be able to
conduct generalized research, but only that they be able to present their
grievances to the courts – a more limited capability that can be produced by a
much more limited degree of legal assistance.” Id. at 360.
With this in mind, we begin with the lockdown Mr. Pfeil experienced. We
agree with the district court that Mr. Pfeil experienced a prison lockdown for only
a short period of the one-year limitation period. In addition, we agree with the
district court that Mr. Pfeil’s allegation he requested and was denied certain legal
materials for a few months during his stay in the West Unit is insufficient to toll
the limitation period or show a limitation in diligently pursuing his claims, given:
1) he was later released into the prison’s open section for several months during
the limitation period and 2) he admitted this section “had normal access to the law
library for research except under certain instances.” Mr. Pfeil’s complaint that he
did not understand what remedies were available to him during this time or that
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he lacked adequate legal training are also insufficient to warrant the special
consideration required for equitable tolling. See Marsh, 223 F.3d at 1220.
In addition, the Supreme Court has recognized lockdowns routinely cause
delays in receiving legal materials, but also ruled that “so long as they are the
product of prison regulations reasonably related to legitimate penological
interests, such delays are not of constitutional significance, even where they result
in actual injury.” Lewis, 518 U.S. at 362; see also Akins v. United States, 204
F.3d 1086, 1090 (11th Cir.) (analyzing lockdown as an impediment under
§ 2244(d)(1)(B), rather than under an equitable tolling theory, and concluding a
lockdown may be an impediment affecting the date a conviction becomes final,
but that petitioner has the burden of showing the lockdown was not “reasonably
related to legitimate penological interests.”), cert. denied, 121 S. Ct. 410 (2000);
McDonald v. Steward, 132 F.3d 225, 230-31 (5th Cir. 1998) (holding in 42 U.S.C.
§ 1983 suit that “[l]imitations may be placed on library access so long as the
regulations are ‘reasonably related to legitimate penological interests.’”). In this
case, even if we consider Mr. Pfeil’s lockdown argument as one claiming an
impediment under § 2244(d)(1)(B) extending the date his conviction became
final, Mr. Pfeil has not presented any evidence the lockdown was not related to
legitimate penological interests. See Akins, 204 F.3d at 1090.
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We next address the period Mr. Pfeil spent in the prison’s open section or
East Unit during the remaining months of the limitation period. Mr. Pfeil raises a
serious charge that he was denied access to a law library or legal materials during
the months he was in the prison’s open section, thereby foreclosing any
opportunity to research his claims. While the open section provided general
library access, Mr. Pfeil nevertheless contends he was denied access because he
was required to work during the only time the library was open, and that after
6:00 p.m., the library was closed. However, Mr. Pfeil does not explain how early
the library opened, precisely what the library hours were in comparison to his
work hours, or how many hours and days he was required to work. He also does
not indicate whether he had free time or lunch privileges during which he could
access the library, whether he asked to transfer to a job with hours more
conducive to library access, or whether he continued to request, but was denied,
legal books through the process he calls “kiting.”
Moreover, Mr. Pfeil admitted he received a book on seeking post-
conviction remedies while he was in the open section of the prison. This shows
access to at least some legal resource intended to aid him in presenting his
grievances to the courts. Lewis, 518 at 360. The fact Mr. Pfeil did not fully
comprehend the remedies available to him after receiving this book is not
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sufficient to show the extraordinary circumstances necessary for equitable tolling.
Rather, “it is well established that ignorance of the law, even for an incarcerated
pro se petitioner, generally does not excuse prompt filing.’” Marsh, 223 F.3d at
1120 (quotation marks and citation omitted).
Finally, while prisoners have the burden of demonstrating the library or
legal assistance program at their prison hindered their efforts to pursue a legal
claim, Lewis, 518 U.S. at 351, Mr. Pfeil has furnished only his own self-serving
declarations supporting his allegations. Under these circumstances, we cannot say
Mr. Pfeil has shown with sufficient particularity the extraordinary circumstances
required to toll the limitation period. While the district court did not explicitly
address Mr. Pfeil’s library access argument relating to the period between March
1998 to October 1998, we conclude that under the circumstances the district court
did not err in holding that equitable tolling was not warranted.
As to Mr. Pfeil’s contention that the district court erred because it did not
consider the actual innocence or miscarriage of justice exception to the one-year
statute of limitations, we find it harmless under the circumstances. The record
shows Mr. Pfeil summarily made two self-serving assertions of innocence, which
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we conclude are insufficient to make a colorable showing of innocence. 2
As to Mr. Pfeil’s additional contentions, we conclude the district court did
not misinterpret the standards set forth in § 2244(d)(1)(B), violate the Suspension
Clause of the Constitution by not applying either mandatory or discretionary
tolling, nor err in not finding a “jurisdictional defect exception” to the one-year
limitation period. These claims simply lack merit under the circumstances of this
case, and need no further discussion or analysis. We also hold that the district
court did not err in dismissing Mr. Pfeil’s petition with prejudice because, as we
have recognized, it was untimely filed. We also review for abuse of discretion
Mr. Pfeil’s motion to disqualify the state and strike its response to his petition due
to its “improper conduct and constitutional conflict.” See McEwen v. City of
Norman, 926 F.2d 1539, 1550 (10th Cir. 1991). After a review of the record, we
conclude the district court did not abuse its discretion in dismissing Mr. Pfeil’s
motion to disqualify the state and strike its response to his habeas petition.
Finally, given our conclusion Mr. Pfeil untimely filed his § 2254 petition, we
need not address the merits of his petition.
2
In addition, some of Mr. Pfeil’s citations to the record in support of his
innocence assertion relate instead to his argument his guilty plea was not knowing,
intelligent, informed or voluntary.
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In order for this court to grant a certificate of appealability, Mr. Pfeil must
make a substantial showing of a denial of a constitutional right under 28 U.S.C.
§ 2253(c)(2). When the district court denies a habeas petition on procedrual
grounds, as it did here, without reaching the underlying constitutional claims, a
certificate of appealability “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 it procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Under the circumstances presented, Mr.
Pfeil has not shown the district court’s procedural ruling is debatably in error.
Accordingly, we DISMISS Mr. Pfeil’s appeal. We further deny Mr. Pfeil’s
request to proceed in forma pauperis, and for failure to show cause and DISMISS
his “Motion to Strike State’s Opposition, Stay Proceedings for Determination of
Question and Request for Consideration of Sanctions.”
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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