Horton v. Kaiser ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 23 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
THOMAS HORTON,
Petitioner-Appellant,
v. No. 99-6285
STEPHEN W. KAISER, (D.C. No. CIV-99-62-T)
(W.D.Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , Chief Judge, EBEL and BRISCOE, 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.
Thomas Horton, an Oklahoma state prisoner appearing pro se, seeks a
certificate of appealability to appeal the district court’s denial of his 28 U.S.C.
§ 2254 petition for writ of habeas corpus on statute of limitations grounds.
This order and judgment is not binding precedent, except under the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.
Because we conclude Horton has failed to make “a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a
certificate of appealability and dismiss the appeal.
I.
On November 3, 1994, Horton pled guilty in the District Court of
Comanche County, Oklahoma, to one count of second degree burglary, after
former conviction of two or more felonies. He was subsequently sentenced on
December 16, 1994, to life imprisonment. Horton filed a pro se notice of appeal
in the Oklahoma Court of Criminal Appeals (OCCA) on January 26, 1995. The
OCCA dismissed the appeal on August 15, 1996, concluding Horton waived his
right to appeal by failing to timely file a motion to withdraw his guilty plea.
Horton filed an application for post-conviction relief in state district court
on July 31, 1996. The state district court denied the application on May 7, 1997.
Horton appealed and, on August 12, 1997, the OCCA affirmed the denial of the
application.
Horton filed his federal habeas petition on January 14, 1999. The district
court, acting upon a report and recommendation issued by a magistrate judge,
dismissed Horton’s petition as untimely. The district court subsequently denied
Horton’s request for a certificate of appealability, as well as his motion to
proceed in forma pauperis on appeal.
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II.
On April 24, 1996, Congress amended what had been “the long-standing
prior practice in habeas corpus litigation that gave a [state] prisoner virtually
unlimited amounts of time to file a habeas petition in federal court,” and
“established a one-year period of limitations for [federal] habeas petitions.”
Hoggro v. Boone, 150 F.3d 1223, 1224 (10 th Cir. 1998) (citing 28 U.S.C.
§ 2244(d)(1)). By statute, the one-year period of limitations generally begins
running from “the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). For prisoners whose convictions became final prior to April 24,
1996, however, the new “one-year statute of limitations does not begin to run
until April 24, 1996.” Hoggro, 150 F.3d at 1225; United States v. Simmonds, 111
F.3d 737, 744-46 (10 th Cir. 1997).
The one-year period of limitations can be tolled by ongoing post-conviction
litigation in state court. See Hoggro, 150 F.3d at 1226. In particular, 28 U.S.C. §
2244(d)(2) provides “[t]he time during which a properly filed application for
State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward” the one-year period of
limitation. We have also indicated the one-year period of limitations “may be
subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10 th Cir.), cert.
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denied, 119 S.Ct. 210 (1998).
Here, a review of the record on appeal demonstrates, without question, that
Horton’s federal habeas petition was untimely. Because Horton did not move to
withdraw his guilty plea within ten days of his sentence, his conviction and
sentence became final under Oklahoma law on December 26, 1994. See Rule
4.2(A), Rules of the Ct. of Crim. App., Okla. Stat. tit. 22, Ch. 18, App.
Therefore, his one-year period of limitations under the AEDPA began running on
April 24, 1996. The period was tolled from July 31, 1996, when Horton filed his
application for post-conviction relief in state district court, until August 12, 1997,
when the OCCA affirmed the denial of his application. From that point forward,
the period of limitations was running and effectively expired on May 5, 1998,
well prior to the filing of Horton’s federal habeas petition.
Although Horton argues for an indefinite period of equitable tolling, we
agree with the district court that none of his proffered reasons justify such a
result. First, because there is no right to counsel in collateral proceedings,
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), the unavailability of counsel or
other “trained persons” to assist him does not constitute proper “cause” to justify
his failure to file a timely petition. See Whiddon v. Dugger, 894 F.2d 1266, 1267
(11th Cir. 1990). Likewise, Horton’s alleged ignorance of the AEDPA’s one-year
time limitation does not constitute sufficient cause to warrant invocation of
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equitable tolling principles. See Miller, 141 F.3d at 978 (concluding that
petitioner’s lack of awareness of AEDPA limitation period did not warrant
equitable tolling); cf. Rodriguez v. Maynard, 948 F.2d 684, 688 (10th Cir. 1991)
(holding that “pro se status and . . . corresponding lack of awareness and training
on legal issues do not constitute adequate cause” for failure to raise an issue in a
previous habeas petition). Lastly, the alleged lack of adequate library facilities
does not constitute cause, at least where, as here, the petitioner has not otherwise
demonstrated due diligence in pursuing his federal habeas claims. See Miller,
141 F.3d at 978 (refusing to apply equitable tolling where inmate “provided no
specificity regarding the alleged lack of access and the steps he took to diligently
pursue his federal claims”).
We GRANT the motion to proceed in forma pauperis, DENY the
application for certificate of appealability, and DISMISS the appeal. The
mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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