Bluff v. State of Utah

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 14, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
FEROSA BLUFF,
Petitioner - Appellant,
No. 08-4063
v.
(D. Utah)
(D.C. No. 2:06-CV-835-DAK)
STATE OF UTAH; JED OLSEN,
Commander,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
Proceeding pro se, Utah state prisoner Ferosa Bluff seeks a certificate of
appealability (“COA”) so she can appeal the district court’s denial of the habeas
corpus petition she filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C.
§ 2253(c)(1)(A) (providing that no appeal may be taken from a final order
disposing of a § 2254 petition unless the petitioner first obtains a COA). In 1998,
Bluff was charged by information with murder, child abuse, and sexual abuse of a
child. The charges arose out of the death of Bluff’s three-year-old daughter. See
State v. Bluff, 52 P.3d 1210, 1216 (Utah 2002). Bluff was convicted on all three
counts after a four-day jury trial. Id. at 1215. Her convictions were affirmed on
direct appeal. Id. at 1229. Her petition for writ of certiorari was denied by the
United States Supreme Court on January 27, 2003. See Bluff v. Utah, 537 U.S.
1172 (2003).
Bluff initiated state post-conviction proceedings on January 13, 2004. The
state petition was dismissed on August 19, 2004; Bluff’s appeal was dismissed on
October 28, 2004; and the Utah Supreme Court denied the petition for writ of
certiorari on March 30, 2005. See Bluff v. State, 109 P.3d 804 (Utah 2005). The
United States Supreme Court denied certiorari on October 3, 2005. Bluff’s first
federal habeas petition, filed on July 18, 2003, was dismissed on March 5, 2004,
for failure to exhaust state remedies. Her second federal petition, the matter
currently before this court, was filed on October 2, 2006. In the petition, Bluff
asserted due process and ineffective assistance of counsel claims.
Respondents filed a motion requesting dismissal of Bluff’s § 2254 petition
as untimely. See 28 U.S.C. § 2244(d)(1)(A), (d)(2). Respondents argued Bluff’s
§ 2254 petition was filed more than eleven months after the expiration of the one-
year limitations period established by 28 U.S.C. § 2244(d)(1). Bluff opposed
Respondents’ motion, arguing she was entitled to equitable tolling of the
limitations period.
The district court considered Bluff’s arguments but granted Respondents’
motion, concluding the one-year limitations period ran from January 27, 2003,
until January 13, 2004, when Bluff filed her state post-conviction application. It
-2-
was tolled until March 30, 2005, when the Utah Supreme Court denied Bluff’s
petition for certiorari review. See Lawrence v. Florida, 127 S. Ct. 1079, 1083-84
(2007) (holding one-year statute of limitations is not tolled during pendency of
petition for certiorari to the United States Supreme Court after denial of state
post-conviction relief); Duncan v. Walker, 533 U.S. 167, 181-82 (holding a
federal habeas petition does not toll the limitations period). Bluff’s § 2254
petition was not filed until October 2, 2006, more than eighteen months late. The
court further concluded Bluff was not entitled to equitable tolling because she had
not demonstrated that her failure to file a timely petition was caused by
extraordinary circumstances beyond her control or that she diligently pursued her
claims. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000); Miller v.
Marr, 141 F.3d 976, 978 (10th Cir. 1998).
In her application for a COA and accompanying brief, Bluff does not argue
that her § 2254 petition was filed within the one-year limitations period. Instead,
she challenges the bases on which the district court denied her request for
equitable tolling. We review for abuse of discretion a district court’s decision
whether or not to equitably toll the one-year limitations period. Burger v. Scott,
317 F.3d 1133, 1141 (10th Cir. 2003). The record before this court establishes
that Bluff has not met her burden of demonstrating actual innocence or that she
acted in a diligent fashion to preserve her right to file a federal habeas petition.
Thus, it is clear the district court did not abuse its discretion when it refused to
-3-
equitably toll the one-year limitations period.
To be entitled to a COA, Bluff must show “that jurists of reason would find
it debatable whether the district court was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district court
dismisses a habeas petition on procedural grounds, a petitioner is entitled to a
COA only if he shows both that reasonable jurists would find it debatable whether
he had stated a valid constitutional claim and debatable whether the district
court’s procedural ruling was correct). Our review of the record demonstrates
that the district court’s dismissal of Bluff’s § 2254 petition as untimely is not
deserving of further proceedings or subject to a different resolution on appeal.
Accordingly, this court denies Bluff’s request for a COA and dismisses this
appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-4-