Leske v. Brill

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 1, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RA ND Y L. LESKE,
Petitioner-A ppellant,
v.
HOYT BRILL, W arden of the Kit
Carson Correctional Center in
Burlington, Colorado; JOSEPH No. 06-1535
ORTIZ, Executive Director of the (D.C. No. 06-CV-1835-ZLW )
Colorado Department of Corrections; (D . Colo.)
and TH E A TTO RN EY G EN ER AL OF
TH E STA TE O F C OLO RA D O ,
Respondents-Appellees.
OR DER DENYING CERTIFICATE O F APPEALABILITY *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Petitioner Randy L. Leske is a prisoner in the custody of the Colorado
Department of Corrections and is currently housed at the Kit Carson Correctional
Center in Burlington, Colorado. In 2006, M r. Leske filed a pro se application for
a writ of habeas corpus in the United States District Court for the District of
Colorado under 28 U.S.C. §§ 2241 and 2254 challenging his 1994 conviction in
*
This order is not binding precedent except under the doctrines of law of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.
Denver D istrict Court for various sex crimes against a child, as well as his
sentence of 28 years’ imprisonment. After M r. Leske responded to the
magistrate’s order to show cause as to why his petition should not be dismissed as
untimely, the district court denied the application and dismissed the action as
barred by the limitation period in 28 U .S.C. § 2244(d). The district court also
issued an order denying the application for a certificate of appealability (“COA”).
See 10th Cir. R. 22.1. M r. Leske now seeks a COA from this court. 1
A COA may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c). W e have held that
under this standard an applicant must 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.” United States v. Taylor, 454 F.3d 1075, 1078
(10th Cir. 2006) (internal quotation omitted). W hen a district court has dismissed
a habeas petition on procedural grounds, a COA will issue only when “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
1
In addition to his motion for a COA filed February 27, 2007, M r. Leske
filed a second motion asking this court to issue a COA on M ay 25, 2007. This
second motion apparently was filed in response to the government’s notice that it
did not intend to file a brief unless ordered to do so. M r. Leske’s second motion
raises no separate issues and will be considered along with his first motion.
-2-
whether the district court was correct in its procedural ruling.” Slack v.
M cDaniel, 529 U.S. 473, 484 (2000).
H aving review ed M r. Leske’s brief on appeal and the record below, we
likewise decline to issue a CO A for substantially the same reasons as those stated
by the district court. The Colorado Supreme Court affirmed M r. Leske’s
conviction on April 13, 1998. See People v. Leske, 957 P.2d 1030 (Colo. 1998);
see also Application for a W rit of Habeas Corpus Pursuant to 28 U.S.C.A. § 2254;
§ 2241 (Docket Entry 3) (hereinafter “Application”) at 2. According to his
petition, M r. Leske filed two motions for post-conviction relief in the Colorado
courts. His first was filed on January 31, 2000, and the proceedings related to
that m otion remained pending until M arch 5, 2003. Application at 3-4. On
September 24, 2003, M r. Leske filed a second state petition for post-conviction
relief and this matter proceeded in state court until N ovember 28, 2005.
Application at 4-5. M r. Leske then filed his current federal habeas application on
August 29, 2006.
Under Section 2244(d)(1), a one-year limitation period applies to an
application for a writ of habeas corpus in federal district court. Relevant to this
action, the limitation period runs 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 ), but it is tolled during the time state
-3-
post-conviction review is pending, see id. § 2244(d)(2). 2 M r. Leske has not
alleged that he petitioned the United States Supreme Court for review of the
decision of the Colorado Supreme Court, so the applicable one-year limitation
period began running when the time to petition the U nited States Supreme Court
expired – that is, on July 13, 1998. See Locke v. Saffle, 237 F.3d 1269, 1273
(10th Cir. 2001); see also U.S. Sup. Ct. R. 13 (petition for w rit of certiorari is
timely if filed within 90 days of entry of judgment by state court).
W e agree with the district court that, because M r. Leske did not file for
post-conviction relief in the Colorado state courts until January 2000, his federal
petition was untimely by over a year. M r. Leske argues against this conclusion by
noting that he was required to exhaust his state court remedies before proceeding
to federal court, and that because his state-court filings w ere timely under state
law, his federal limitation period did not begin to run until November 2005 when
his second state court review became final. Opening Br. on Appeal at 2;
Response to Order to Show Cause (D ocket Entry 10) at 3-5. But those arguments
run afoul of the plain language of the statute, which tolls the limitation period
only during the time in “which a properly filed application for State post-
conviction relief . . . is pending,” 28 U.S.C. § 2244(d)(2), not during the time
preceding the state filing. W e have consistently affirmed this reading of the
2
W e concur with the district court’s ruling that the other provisions of
Section 2244(d)(1) do not apply to M r. Leske’s application.
-4-
statute in our decisions holding that a collateral petition filed in state court after
the limitation period has expired does not serve to toll the statute of limitations
for a federal habeas petition. See, e.g., Clark v. Oklahoma, 468 F.3d 711, 714
(10th Cir. 2006) (“Only state petitions for post-conviction relief filed within the
one year allowed by [§ 2244(d)(1)] will toll the statute of limitations.”). We are
bound by these holdings. 3
Accordingly, we are obliged to deny M r. Leske’s requests for COA and to
dismiss his appeal. W e grant his motion to proceed in form a pauperis. M r.
Leske’s request for an evidentiary hearing is moot. So ordered.
ENTERED FOR THE COURT
Neil M . Gorsuch
Circuit Judge
3
M r. Leske has not argued that he is entitled to equitable tolling of the
limitation period, and, like the district court, we see no extraordinary
circumstances in this case meriting such relief from the statutory time bar. See
M arsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[T]his equitable remedy
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.”).
-5-