Rude v. State of Wyoming

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 21 2001
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
JACK S. RUDE,
Petitioner-Appellant,
v. No. 00-8084
(D. Wyo.)
STATE OF WYOMING; WYOMING (D.Ct. No. 00-CV-111-J)
DEPARTMENT OF CORRECTIONS STATE
PENITENTIARY WARDEN, a/k/a Vance
Everett, in his official capacity; WYOMING
ATTORNEY GENERAL,
Respondents-Appellees.
____________________________
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, and BRORBY, 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.
*
This order and judgment is not binding precedent except under the doctrines of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.
Jack S. Rude, a state prisoner appearing pro se, appeals the district court’s
decision dismissing, as untimely, his petition filed pursuant to 28 U.S.C. § 2254.
We deny Mr. Rude’s request for a certificate of appealability, and dismiss his
appeal.
Following Mr. Rude’s guilty plea to first degree murder of his daughter-in-
law and conspiracy with his son to commit first degree murder, a state district
court sentenced Mr. Rude to two life sentences to run concurrently. See Rude v.
State, 851 P.2d 15, 19-20 (Wyo. 1993). On April 26, 1993, the Wyoming
Supreme Court affirmed the first degree murder conviction and reversed and
remanded the conspiracy conviction. 1 See id. at 19-20.
On August 21, 1998, Mr. Rude filed his first pleading seeking state post-
conviction review, which the state district court denied on August 28, 1998. On
1
The record contains no information on the status of Mr. Rude’s reversed and
remanded conspiracy conviction. From a review of the record, it is unclear whether Mr.
Rude’s state and federal post-conviction proceedings challenge only his murder
conviction. However, we will consider the timeliness of Mr. Rude’s federal petition with
respect to only his murder conviction because Mr. Rude has failed to submit into the
record relevant information on his reversed and remanded conspiracy conviction for
either the district court’s or our review. See United States v. Svacina, 137 F.3d 1179,
1187 n.9 (10th Cir. 1998) (holding we will not review a contention if the record is
insufficient to permit a proper assessment of the issue).
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September 8, 1998, Mr. Rude filed an appeal to the Wyoming Supreme Court.
Shortly thereafter, and prior to a decision by the Wyoming Supreme Court, Mr.
Rude filed his first federal habeas corpus petition pursuant to § 2254. On August
17, 1999, the federal district court granted Mr. Rude’s motion to withdraw his
federal petition pending exhaustion of his state remedies and dismissed his
petition without prejudice. On May 25, 1999, the Wyoming Supreme Court
dismissed Mr. Rude’s post-conviction appeal. Thereafter, Mr. Rude filed a state
petition for writ of habeas corpus, which the state district court dismissed on
November 29, 1999. On May 2, 2000, the Wyoming Supreme Court denied Mr.
Rude’s petition for a writ of habeas corpus. Finally, on June 1, 2000, Mr. Rude
filed the § 2254 petition at issue in the instant appeal.
Pursuant to 28 U.S.C. § 2244(d)(1), the federal district court determined the
limitation period for filing Mr. Rude’s § 2254 petition expired on April 23, 1997.
Because none of Mr. Rude’s state and federal post-conviction proceedings were
filed within the limitation period, the district court determined they did not toll
the limitation period under § 2244(d)(2). In addition, the district court
determined no equitable tolling occurred because, as early as 1992, Mr. Rude had
full knowledge of the factual predicate for his claims, including an assertion his
counsel had a conflict of interest concerning an adverse witness. For these
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reasons, the district court denied Mr. Rude’s petition.
On appeal, Mr. Rude renews his argument that equitable tolling is required
because his counsel, his co-defendant’s counsel, the prosecution and the judge
“concealed” the fact that one of Mr. Rude’s trial attorneys had an impermissible
conflict of interest because he also represented an adverse witness. Even though
that attorney withdrew from Mr. Rude’s criminal case, Mr. Rude contends he did
not learn of this concealment until “years later.” For the first time on appeal, Mr.
Rude also contends he did not discover his attorney lied to him about the
conditions of his son’s plea bargain until “later.”
“In reviewing the denial of a habeas corpus petition, we review the district
court’s factual findings under a clearly erroneous standard, and its legal
conclusions de novo.” Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999),
cert. denied, 528 U.S. 1120 (2000). We recognize the one-year statute of
limitations may be equitably tolled, but only “when an inmate diligently pursues
his claims and demonstrates that the failure to timely file was caused by
extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d
1217, 1220 (10th Cir.), cert. denied, ___ S. Ct. ___, 2001 WL 17827 (U.S. Feb.
26, 2001) (No. 00-7631).
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Applying our standard of review and the principles applied for equitable
tolling, we agree with the district court’s holding that Mr. Rude’s petition is
untimely and that no equitable tolling applies. As the district court determined, as
early as 1992, Mr. Rude had full knowledge of the factual predicate for the
conflict of interest claim, when Mr. Rude claimed he “heard” that a member of
his defense team had previously advised an adverse witness, and immediately
asked his other attorney, “Isn’t there something wrong with that?” Under the
circumstances presented, it is clear Mr. Rude has not shown he diligently pursued
his conflict of interest claim after obtaining knowledge of the factual predicate
underlying that claim in 1992.
As to Mr. Rude’s claim his attorney lied to him regarding the conditions of
his son’s plea bargain, we generally will not consider an issue not raised before
the district court. See Moore v. Gibson, 195 F.3d 1152, 1180-81 (10th Cir. 1999),
cert. denied, 120 S. Ct. 2206 (2000). However, even if we considered his claim,
Mr. Rude fails to establish when he made the alleged discovery, stating merely
that it did not occur until “later.” As a consequence, the record is insufficient to
permit a proper assessment of the timeliness of Mr. Rude’s petition with respect
to this issue. See Svacina, 137 F.3d at 1187 n.9.
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In order for this court to grant a certificate of appealability, Mr. Rude must
make a substantial showing of the denial of a constitutional right as required
under 28 U.S.C. § 2253(c)(2). When the district court denies a habeas petition on
procedural grounds, as it did here, without reaching the underlying constitutional
claim, “a [certificate of appealability] should issue when the prisoner shows, at
least, 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). In this case, the district court’s
procedural ruling is clearly not debatable.
Accordingly, for the reasons stated herein, and for substantially the same
reasons in the district court’s October 31, 2000 Order Dismissing Petition For
Writ of Habeas Corpus, we deny Mr. Rude’s request for a certificate of
appealability and DISMISS his appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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