Killingsworth v. Tapia ( 2011 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT May 26, 2011
Elisabeth A. Shumaker
Clerk of Court
BILL KILLINGSWORTH,
Petitioner-Appellant,
v.
No. 10-2169
GEORGE TAPIA, Warden; GARY K. (D.C. No. 1:09-CV-00845-JB-WDS)
KING, Attorney General of the State of (D.N.M.)
New Mexico,
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, EBEL, and LUCERO, Circuit Judges.
Bill Killingsworth, a state prisoner proceeding pro se, requests a certificate of
appealability (COA) to challenge the district court’s denial of his 28 U.S.C. § 2254habeas petition. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we
conclude that Killingsworth’s habeas petition is time barred, DENY his request for a
COA, and DISMISS this appeal.
* This order is not binding precedent, except under the doctrines of law of the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.
BACKGROUND
In 1977, a New Mexico state court sentenced Killingsworth to two consecutive
terms of life in prison after a jury convicted him of kidnapping and multiple counts of
criminal sexual penetration. Killingsworth escaped from prison in 1980 and remained a
fugitive until he was discovered in 2004 and returned to custody. On September 1, 2009,
Killingsworth filed an application for habeas relief in federal district court, asserting
ineffective assistance of counsel and violations of due process, among other things. The
district court ruled, however, that Killingsworth’s petition was time barred under the
Antiterrorism and Effective Death Penalty Act (AEDPA). Killingsworth now seeks a
COA from this Court.
DISCUSSION
In order to obtain a COA, a § 2254 petitioner must make a “substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). When, as in this case, the district court dismisses a habeas petition
on procedural grounds, this standard is satisfied if “the prisoner shows . . . 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).
Because the district court’s procedural ruling that Killingsworth’s petition was time
barred is not reasonably debatable, we must deny Killingsworth’s request for a COA.
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Under AEDPA, “[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.”
28 U.S.C. § 2244(d)(1). As relevant to the present case, the limitation period begins to
run from the latest of
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review; [or]
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action[.]
Id. § 2244(d)(1)(A)–(B). Killingsworth argues that § 2244(d)(1)(B) applies because
prison officials destroyed his legal documents and research after a prison riot in 1980. He
claims that he was not able to recover his papers and reconstruct his files until June 2009.
This argument fails, however, because Killingsworth “does not allege specific facts that
demonstrate how [the] alleged [destruction] of these materials impeded his ability to file
a federal habeas petition.” Weibley v. Kaiser, 50 F. App’x 399, 403 (10th Cir. 2002)
(unpublished); see Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (placing the burden
on the petitioner to “provide[] . . . specificity regarding the alleged lack of access [to legal
materials] and the steps he took to diligently pursue his federal claims”). Therefore, §
2244(d)(1)(B) is inapplicable, and § 2244(d)(1)(A) determines the date on which
Killingsworth’s one-year period began to run.
Under § 2244(d)(1)(A), the limitation period normally runs from the date on
which the state-court judgment became final. But “[w]here a conviction became final
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before ADEPA took effect, as is the case with [Killingsworth], the one year limitation
period for a federal habeas petition starts on AEDPA’s effective date, April 24, 1996.”
Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001). Thus, Killingsworth should
have filed his petition by April 24, 1997, yet he failed to seek habeas relief until 2009.
Because we find no “extraordinary circumstances beyond [Killingsworth’s] control” that
would justify equitable tolling of the limitation period, Marsh v. Soares, 223 F.3d 1217,
1220 (10th Cir. 2000), we agree with the district court that Killingsworth’s petition is
time barred by AEDPA.1
CONCLUSION
For the foregoing reasons, we DENY Killingsworth’s request for a COA and
DISMISS this appeal.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
1
Killingsworth’s status as a fugitive between 1980 and 2004 does not provide a
basis for equitable tolling. See Rahat v. Higgins, 159 F. App’x 13, 15 (10th Cir. 2005)
(unpublished) (“Equitable tolling is inappropriate here, because the reason for the delay
stems from [the defendant’s] own flight as a fugitive from justice . . . .”).
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