Derrick Steilman v. Reginald Michael ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DERRICK E. STEILMAN, No. 20-35103
Petitioner-Appellant, D.C. No. CV 19-38-BU-BMM
v. MEMORANDUM*
REGINALD D. MICHAEL, Director,
Montana Department of Corrections;
TIMOTHY C. FOX, Montana Attorney
General,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted June 10, 2021**
Seattle, Washington
Before: GILMAN***, GOULD, and MILLER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
This case involves Derrick E. Steilman’s petition for habeas relief under 28
U.S.C. § 2254. Steilman filed a § 2254 petition challenging the legality of his
110-year-sentence without the possibility of parole for a Montana homicide that he
committed when he was 17 years old. The district court dismissed the petition as
untimely. We agree with the district court that Steilman’s petition was untimely
because he failed to seek relief within one year of the Supreme Court’s decision in
Miller v. Alabama, 567 U.S. 460 (2012), and because he is not entitled to equitable
tolling.
1. Shortly before turning 18, Steilman committed a murder in Butte,
Montana. He pleaded guilty in October 1999.
2. Steilman filed an earlier petition for a writ of habeas corpus in the
Montana Supreme Court in May 2016, wherein he claimed that his sentence was
unconstitutional under the Eighth Amendment because the sentencing judge did
not sufficiently account for his youth per the new rule announced in Miller and
made retroactive in Montgomery v. Louisiana, 577 U.S. 190 (2016). The Montana
Supreme Court held that “[t]he combination of the good-time credit to which
Steilman is eligible and the amount of his sentence that will be discharged while
serving a sentence on a wholly unrelated crime” meant that Steilman’s sentence
was not a de facto life sentence. Steilman v. Michael, 407 P.3d 313, 320 (Mont.
2017); see also Steilman v. Michael, No. CV 19-38-BU-BMM-KLD, 2019 WL
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8017793, at *1 (D. Mont. Nov. 21, 2019), report and recommendation adopted in
part, rejected in part, No. CV 19-38-BU-BMM, 2020 WL 359212 (D. Mont. Jan.
22, 2020) (noting that the Montana Supreme Court “observed that Steilman’s
Montana sentence ran concurrently to a Washington state sentence for a separate
homicide, which would result in Steilman potentially serving [about] 31 years [for]
the Montana homicide.”).
3. We need not decide whether the Montana Supreme Court’s decision on
the merits was contrary to the United States Supreme Court’s decision in Miller
because Steilman’s federal habeas corpus petition was untimely. A state petition
for habeas corpus that is based upon the recognition of a new right must be filed
within one year of “the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review.”
28 U.S.C. § 2244(d)(1)(C). Steilman filed his petition within one year of
Montgomery, but four years after the decision in Miller.
4. Unfortunately for Steilman, the decision that triggers the one-year statute
of limitations is Miller, not Montgomery. Miller recognized a new right under the
Eighth Amendment (the right to an individualized hearing for juvenile offenders
before they can be sentenced to life without parole). 567 U.S. at 480. The
Supreme Court’s recent decision in Jones v. Mississippi, 141 S. Ct. 1307 (2021),
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reiterated that Montgomery simply held “that Miller applied retroactively to cases
on collateral review.” Id. at 1314; see also id. at 1316 (“Montgomery did not
purport to add to Miller’s requirements.”). Furthermore,
in making the [Miller] rule retroactive, the Montgomery Court . . .
declined to impose new requirements not already imposed by Miller.
As Montgomery itself explained, the Court granted certiorari in that
case not to consider whether the rule announced in Miller should be
expanded, but rather simply to decide whether Miller’s “holding is
retroactive to juvenile offenders whose convictions and sentences were
final when Miller was decided.”
Id. at 1317 (quoting Montgomery, 557 U.S. at 194). This leaves Steilman’s
timeliness argument based on Montgomery meritless because, as the Supreme
Court decided in Dodd v. United States, 545 U.S. 353, 357 (2005), the date that a
right is made retroactive is irrelevant for statute-of-limitations purposes.
5. Moreover, Steilman is not entitled to equitable tolling. His argument
turns on an unsubstantiated, vague allegation that “his attorney abandoned him and
gave him improper advice as to how much time he had remaining on the statute of
limitations.” He says that because he was “unable to present his claim to equitable
tolling in the district court[,] . . . [t]his Court should . . . reverse and remand this
case and give Steilman a chance to establish that he is entitled to equitable tolling.”
6. But equitable tolling of the one-year limitations period created by 28
U.S.C. § 2244(d)(1)(C) is rarely granted. Miranda v. Castro, 292 F.3d 1063,
1066–67 (9th Cir. 2002). To benefit from equitable tolling, a petitioner must show
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that he has “pursu[ed] his rights diligently” and was hindered by an “extraordinary
circumstance.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Before the
district court, Steilman proffered several reasons for equitable tolling, including
attorney malpractice, legal ignorance, and insufficient access to Montana legal
materials while incarcerated in the state of Washington. Steilman, 2019 WL
8017793, at *3–4.
7. Although Steilman put forth several reasons before the district court in
attempting to establish an “extraordinary circumstance,” he proffers on appeal only
that his attorney misadvised and “abandoned him.” But Steilman provides no
evidence to substantiate his argument, and this single reason does not constitute an
“extraordinary circumstance.” See Frye v. Hickman, 273 F.3d 1144, 1145–46 (9th
Cir. 2001) (holding that counsel’s general negligence did not warrant equitable
tolling); see also Ford v. Pliler, 590 F.3d 782, 786 (9th Cir. 2009) (noting that the
petitioner had given the lower court no evidence that an “attorney’s conduct had
made it impossible . . . to file a timely federal habeas petition”). In any event, the
attorney misconduct that Steilman alleges apparently occurred after the statute of
limitations had already lapsed, so it could not change the result in this case. See
Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
AFFIRMED.
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