Todd v. Bigelow , 534 F. App'x 748 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 16, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
SHAYNE E. TODD,
Petitioner - Appellant, No. 13-4056
(D.C. No. 2:12-CV-00282-CW)
v. (D. Utah)
ALFRED BIGELOW,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
Shayne Todd, a Utah prisoner proceeding pro se, requests a certificate of
appealability (“COA”) to appeal the dismissal of his 28 U.S.C. § 2254 habeas petition as
time-barred. We deny a COA and dismiss the appeal.
*
After examining appellant’s brief and the 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) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
I
According to Todd’s habeas petition, in 2001 he pled guilty to one count of
possession of a dangerous weapon by a restricted person and, after a jury trial, was
convicted of one count of first-degree murder. He was sentenced to one-to-fifteen years
based on the possession of a dangerous weapon charge and five-years-to-life on the
murder conviction.
Todd appealed his conviction and sentence through the state courts. The Utah
Court of Appeals affirmed Todd’s conviction on October 25, 2007. State v. Todd, 173
P.3d 170, 173 (Utah Ct. App. 2007). On February 28, 2008, the Utah Supreme Court
denied certiorari review. State v. Todd, 186 P.3d 957, 957 (Utah 2008). Todd did not
seek a writ of certiorari from the United States Supreme Court.
Todd subsequently filed a state petition for post-conviction relief on April 6, 2009.
That case was dismissed on September 1, 2009 for failure to pay the filing fee. Todd did
not appeal. Todd filed a second petition in March 2010; its dismissal was affirmed by the
Utah Court of Appeals on September 15, 2011. Todd v. State, 262 P.3d 1222, 1224
(Utah Ct. App. 2011). The Utah Supreme Court denied certiorari review on March 1,
2012. Todd v. State, 275 P.3d 1019, 1019 (Utah 2012).
On March 23, 2012, Todd filed a § 2254 habeas petition in the United States
District Court for the District of Utah, alleging prosecutorial misconduct and jury
instruction errors, inter alia. The district court dismissed Todd’s petition as barred by the
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statute of limitations and rejected his subsequent motion for reconsideration. Todd now
seeks a COA from this court.
II
Todd may not appeal the district court’s denial of habeas relief under § 2254
without a COA. § 2253(c)(1). We will grant a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). This requires
Todd to show “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.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Because Todd proceeds pro
se, we construe his filings liberally; however, “we do not assume the role of advocate.”
Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotation omitted).
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), § 2254
petitions generally must be filed within one year from “the conclusion of direct review or
the expiration of the time for seeking such review.” § 2244(d). Todd’s conviction
became final on May 28, 2008, when the deadline to file a petition for writ of certiorari
with the United States Supreme Court passed. See Sup. Ct. R. 13(1). Accordingly,
without any tolling of the statute of limitations, Todd had until May 28, 2009 to file a
habeas petition.
“The time during which a properly filed application for State post-conviction or
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other collateral review” is pending tolls AEDPA’s one-year limitations period.
§ 2244(d)(2). When Todd filed his petition for state post-conviction relief on April 6,
2009, he had less than two months remaining to file a federal habeas petition. His state
petition was dismissed on September 1, 2009, and Todd did not appeal. Thus, the
limitations period began running thirty days later on October 1, 2009. Yet Todd did not
file his habeas petition until March 23, 2012, nearly three years later.1
Todd contends that his second petition for post-conviction relief was identical to
his first, and that the state court incorrectly denied his motion to “intertwine” the two
cases. He argues that his habeas petition is thus timely because the AEDPA statute of
limitations was tolled until the Utah Supreme Court’s decision on his second state
petition. We disagree. Todd failed to pay the filing fee for his first petition for post-
conviction relief.2 The petition was properly dismissed and cannot be resurrected to
support Todd’s statutory tolling argument.
1
Todd’s second petition for post-conviction relief did not toll AEDPA’s statute of
limitations because this petition was not filed until after the limitations period had
expired. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).
2
Utah allows impecunious litigants to institute “any cause in any court” without
prepayment of fees or costs upon submission of “an affidavit of impecuniosity
demonstrating financial inability to pay fees and costs or give security.” Utah Code
§ 78A-2-302(2). Todd does not contend that he filed such a request or that it was
erroneously rejected.
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Citing Barnett v. Lemaster, 167 F.3d 1321 (10th Cir. 1999), Todd also asserts that
his post-dismissal motions seeking to reassign consideration of his petition and reinstate
his case kept it pending beyond the September 1, 2009 dismissal and thus tolled the
AEDPA period of limitations. Barnett defined a pending application for post-conviction
review “broadly to encompass all of the time during which a state prisoner is attempting,
through proper use of state court procedures, to exhaust state court remedies with regard
to a particular post-conviction application.” Id. at 1323. Todd’s motions to resuscitate
his case, in the face of his continuing failure to pay the filing fee, do not constitute
“proper use of state court procedures” covered by Barnett.
Todd also asserts generally that he is entitled to equitable tolling, but provides no
factual basis or specific arguments to support application of such tolling. Accordingly,
Todd has waived any claim to equitable tolling. See Marsh v. Soares, 223 F.3d 1217,
1220 (10th Cir. 2000) (“[Equitable tolling] is only available when an inmate diligently
pursues his claims and demonstrates that the failure to timely file was caused by
extraordinary circumstances beyond his control.”).
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III
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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