Tuggle v. Addison , 247 F. App'x 155 ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 7, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
FRED D . TUG GLE,
Petitioner-A ppellant, No. 07-7020
v. (E.D. Oklahoma)
M IK E ADDISON, (D.C. No. 06-CV-78-RAW -KEW )
Respondent-Appellee.
OR DER
Before H E N RY, TYM K O VICH , and HO LM ES, Circuit Judges.
Fred D. Tuggle seeks a certificate of appealability (“COA”) to appeal the
district court’s order denying his “Petition for Post Conviction Appeal” as time-
barred. See Rec. doc. 1, at 1. For the reasons set forth below , we deny M r.
Tuggle’s application and dismiss this matter.
I. BACKGROUND
On December 9, 1959, an Oklahoma state trial court sentenced M r. Tuggle
to life imprisonment after he pleaded guilty to two counts of first-degree murder.
M r. Tuggle did not file a direct appeal of his convictions and sentence. However,
prior to the instant case, M r. Tuggle brought at least three post-conviction
actions: (1) a 28 U.S.C. § 2254 petition (which was apparently a second habeas
petition filed under § 2254), in which he alleged that his plea was coerced and
that the state had failed to show that he had voluntarily waived his Sixth
Amendment rights w hen he pleaded guilty; (2) a 28 U.S.C. § 2241 action, in
which he alleged that the state did not possess the original or certified judgments
and sentences, in violation of Oklahoma law; and (3) a “Petition for Order Nunc
Pro Tunc,” in which he argued that the state had violated the plea agreement by
holding him beyond the time agreed. In each of these actions, the district court
denied relief. In the first and third actions, this court affirmed the denial of relief,
and, in the second action, we denied M r. Tuggle’s application for a COA. See
Tuggle v. Evans, No. 94-7094, 1995 W L 3979 (10th Cir. Jan. 4, 1995); Tuggle v.
Hines, No. 03-6354 (10th Cir. Aug. 17, 2004) (unpublished order); Tuggle v.
County of C herokee, 147 F. App’x 52 (10th Cir. 2005).
On February 23, 2006, M r. Tuggle filed the action at issue here, a “Petition
for Post-Conviction Appeal,” in which he alleged that: (1) the prosecution had
agreed that, in exchange for a guilty plea to the first-degree murder charges, M r.
Tuggle would serve a sentence of no more than seven years’ imprisonment and
that the state breached that agreement by failing to release him once that period
had elapsed; and (2) the state did not provide him with a hearing prior to the
revocation of his parole on M arch 31, 1989.
The district court dismissed M r. Tuggle’s action as untimely. The court
reasoned that M r. Tuggle had until April 24, 1997 (one year after the effective
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date of the Anti-Terrorism and Effective Death Penalty Act) to file these claims in
federal court. See 28 U.S.C. § 2244(d)(1) (stating 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”); Hoggro v. Boone, 150 F.3d
1223, 1226 (10th Cir. 1998) (stating that “for prisoners whose convictions became
final before April 24, 1996, the one-year statute of limitation does not begin to
run until April 24, 1996”); see also Burger v. Scott, 317 F.3d 1133, 1137 (10th
Cir. 2003) (stating that “applications for writs of habeas corpus challenging the
execution of a state sentence under § 2241 are subject to [the] one-year period of
limitations [established by § 2244(d)]”). Here, M r. Tuggle did not file his
“Petition for Post-Conviction Appeal” until February 23, 2006, more than eight
years after the statute of limitations expired.
II. DISCUSSION
In order to obtain a COA, M r. Tuggle must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Davis v. Roberts,
425 F.3d 830, 833 (10th Cir. 2005) (holding that a COA is required to appeal the
denial of a state prisoner’s § 2241 application). M r. Tuggle may make this
showing by demonstrating that “reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal
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quotation marks omitted). “[A ] claim can be debatable even though every jurist
of reason might agree, after the COA has been granted and the case has received
full consideration, that [the] petitioner will not prevail.” Id. at 338.
In determining whether M r. Tuggle is entitled to a COA we must first
determine whether his two claims are asserted under 28 U.S.C. § 2241 or 28
U.S.C. § 2254. See M ontez v. M cKinna, 208 F.3d 862, 865 (10th Cir. 2000)
(stating that a § 2254 petition “challenge[s] . . . the validity of [a] conviction and
sentence” while a § 2241 petition “attack[s] . . . the execution of [a] sentence”). 1
That characterization is significant here because M r. Tuggle has previously filed
at least one 28 U.S.C. § 2254 petition, see Tuggle, 1995 W L 3979 at *1, and a
district court does not have jurisdiction to address the merits of a second or
successive § 2254 petition until this court has granted the required authorization
under 28 U.S.C. § 2244(b)(3)(A). See 28 U.S.C. § 2244(b)(3)(A) (“Before a
second or successive application permitted by this section is filed in the district
court, the applicant shall move in the appropriate court of appeals for an order
1
W e note that our characterization of § 2241 in M ontez has been criticized
by other circuits and is a minority view. See W hite v. Lambert, 370 F.3d 1002,
1005 n.1, 1009 (9th Cir. 2004) (observing that “the Tenth Circuit appears to
implicitly draw a distinction between habeas petitions that attack the underlying
state court judgment, which the court felt would be appropriate under § 2254, and
habeas petitions which do not challenge the underlying state court judgment but
rather attack the execution of a sentence, which the court determined fit better
under § 2241,” disagreeing with this view, and discussing decisions of other
circuits that also have rejected the Tenth Circuit’s view). W e need not address
that issue here, but we note that the characterization of M r. Tuggle’s action as a §
2241 or § 2254 petition does not affect the statute of limitations question.
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authorizing the district court to consider the application.”); Pease v. Klinger, 115
F.3d 763, 764 (10th Cir. 1997) (“The district court had no jurisdiction to decide
[the petitioner’s] successive § 2254 petition without authority from the court of
appeals.”).
In contrast, “[t]his court has not yet addressed [in a published decision] . . .
whether a similar appellate-court pre-authorization requirement applies before a
prisoner may file a second or successive writ of habeas corpus under § 2241.”
Ackerman v. Novak, 483 F.3d 647, 650 (10th Cir. 2007). W e have stated in
several unpublished decisions that “prior authorization from a court of appeals is
not necessary to file a successive § 2241 petition.” See, e.g., W hite v. M cKinna,
No. 06-1069, 2006 W L 1234867, at *1 (10th Cir. M ay 2, 2006) (collecting cases).
Here, we conclude that both of M r. Tuggle’s claims challenge the execution
of his sentence. In particular, in his first claim, M r. Tuggle does not challenge
the sentence imposed by the court in 1959. Instead, he asserts that the sentence
imposed (a life sentence that would allegedly result in only seven years’
incarceration because of the prosecutor’s alleged agreement) was not actually
carried out. In his second claim, he challenges the revocation of parole. Both
claims are appropriately raised in a 28 U.S.C. § 2241 action. See Davis v.
Roberts, 425 F.3d 830, 833 (10th Cir. 2005) (stating that “[§ 2241] is the
provision that would ordinarily apply to [a] challenge to the failure to convert [a]
sentence to a lesser term after enactment of [a state statute]); United States v.
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Furman, 112 F.3d 435, 438 (10th Cir. 1997) (concluding that questions of parole
procedure “go to the execution of sentence and, thus, should be brought against
defendant’s custodian under 28 U.S.C. § 2241”). Thus, the district court had
jurisdiction to rule on M r. Tuggle’s motion.
M oreover, we agree with the district court’s ruling. M r. Tuggle’s “Petition
for Post-Conviction Appeal” was filed well beyond the one-year statute of
limitations established by 28 U.S.C. § 2244. Additionally, M r. Tuggle has failed
to establish that equitable tolling of the limitations period is warranted. See
M arsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (stating that equitable
tolling “is only available when an inmate diligently pursues his claims and
demonstrates that the failure to timely file w as caused by extraordinary
circumstances beyond his control”).
III. CONCLUSION
Accordingly, we DEN Y M r. Tuggle’s application for a CO A and DISM ISS
this matter.
Entered for the Court,
ELISABETH A. SHUM AKER, Clerk
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