Alexander v. Watkins , 49 F. App'x 770 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 9 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
LORENZO A. ALEXANDER,
Petitioner - Appellant,
v. No. 02-1171
(D.C. No. 01-Z-2356)
GARY WATKINS; ATTORNEY (D. Colorado)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, 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This order and judgment is not binding precedent, except under the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.
This case is before the court on Lorenzo Alexander’s pro se request for a
certificate of appealability (“COA”). Alexander seeks a COA so he can appeal
the district court’s dismissal of the habeas petition he filed pursuant to 28 U.S.C.
§ 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken
from the denial of a § 2254 petition unless the petitioner first obtains a COA).
Alexander’s request to proceed in forma pauperis on appeal is granted.
Alexander was convicted in Colorado state court of first degree murder,
felony murder, aggravated robbery, attempted aggravated robbery, and robbery.
Alexander’s conviction was affirmed on November 18, 1999 by the Colorado
Court of Appeals. On September 2, 2000, the Colorado district court denied
Alexander’s motion for post-conviction relief. Alexander then filed the § 2254
petition with the federal district court.
The district court dismissed Alexander’s § 2254 petition because it was
filed outside the one-year limitations period set out in 28 U.S.C. § 2244(d). See
28 U.S.C. §2254(d)(1) (providing that the one-year period begins to run on the
date petitioner’s conviction became final). The court reasoned that Alexander’s
convictions became final on August 1, 2000. The one-year limitations period
was tolled from August 3, 2000 through September 6, 2000 while Alexander
pursued state post-conviction relief. See Hoggro v. Boone , 150 F.3d 1223, 1226
& n.4 (10th Cir. 1998). The district court applied the prison mailbox rule and
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deemed Alexander’s § 2254 petition filed on November 21, 2001. See Houston
v. Lack , 487 U.S. 266, 270. (1988). Thus, Alexander’s petition was filed
approximately fourteen months after the one-year period began to run. The
district court further concluded that none of the bases for equitable tolling
asserted by Alexander constituted an extraordinary circumstance that warranted
equitable tolling.
Before he is entitled to a COA from this court, Alexander must make a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). Alexander may make this showing by demonstrating the issues raised
are debatable among jurists, a court could resolve the issues differently, or that
the questions presented deserve further proceedings. See Slack v. McDaniel , 529
U.S. 473, 483-84 (2000). Alexander asserts that the statute should be equitably
tolled because his appellate attorney failed to inform him of the one-year
limitations period; he is illiterate and, therefore, was unaware of the limitations
period; and that information on the AEDPA is unavailable in the prison’s law
library.
Equitable tolling is only appropriate “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). No such extraordinary circumstance is present in
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this case. “It is well established that ignorance of the law, even for an
incarcerated pro se petitioner, generally does not excuse prompt filing.” Id. at
1120 (quotation omitted). Thus, Alexander’s assertions concerning his appellate
counsel and his illiteracy (most of which are unsupported in the record) are
insufficient to justify equitable tolling. Additionally, Alexander has failed to
carry his burden of demonstrating that his prison library hindered his efforts to
pursue a legal claim with adequate facts supported by the record. See Miller v.
Marr , 141 F.3d 976, 978 (10th Cir. 1998). Alexander’s conclusory declarations
about conditions in the prison library are the only support for his allegations
concerning the library and, as such, are insufficient to establish the existence of
an extraordinary circumstance sufficient to support equitable tolling. See id.(holding that a petitioner must do more than simply say the prison “lacked all
relevant statutes and case law or that the procedure to request specific materials
was inadequate”).
This court has reviewed Alexander’s application for a COA, his appellate
brief, and the entire record on appeal. That de novo review clearly demonstrates
the district court’s dismissal of Alexander’s § 2254 petition as untimely is not
deserving of further proceedings or subject to a different resolution on appeal.
Accordingly, this court denies Alexander’s request for a COA for substantially
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those reasons set forth in the district court’s order dated March 22, 2002, and
dismisses this appeal. Alexander’s motion for appointment of counsel is denied .
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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