Hunter v. State of Oklahoma

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 17 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
BILLY G. HUNTER,
Petitioner - Appellant,
v. No. 02-7111
STATE OF OKLAHOMA; BOBBY (D.C. No. 01-CV-718-S)
BOONE, Warden; FRANK KEATING; (E.D. Okla.)
and PAROLE BOARD OF
OKLAHOMA,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining the 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); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
This is a pro se 28 U.S.C. § 2241 appeal brought by a state prisoner. In
1978, Petitioner was convicted of Murder in the First Degree and sentenced to life
*
This order and judgment is not binding precedent, except under the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.
imprisonment. Petitioner was paroled in 1987, but his parole was revoked on
February 7, 1996, after he was charged with Malicious Injury to Property and
Rape by Instrumentation. Petitioner was found not guilty of the rape charge on
February 15, 1996, and the injury to property conviction was dismissed on
November 19, 1998. On June 29, 1999, Petitioner filed for post-conviction relief
in the Oklahoma courts.
On July 3, 2000, Petitioner filed a petition for writ of habeas corpus in the
United States District Court for the Eastern District of Oklahoma pursuant to 28
U.S.C. § 2254, which this court construed as a petition pursuant to 28 U.S.C. §
2241. See Hunter v. Boone, 13 Fed. Appx. 828, 2001 WL 744978 (10th Cir.
July 3, 2001). In the petition, Petitioner argued that he was denied due process in
the parole revocation proceeding. He further argued that the revocation was
invalid since he was acquitted of the rape charge and since the conviction for
injury to property had been dismissed. The record indicates that both charges
were considered in connection with his parole revocation.
The state moved to dismiss the petition as time-barred since it was not filed
within the one-year statute of limitations in 28 U.S.C. § 2244(d). Petitioner
argued that he was entitled to equitable tolling since it took him until November
1998 to have the misdemeanor dismissed. He also argued that the statute should
be tolled during his post-conviction proceedings in the Oklahoma courts. The
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district court dismissed the petition as time-barred. We denied Petitioner’s
motion for a certificate of appealability, holding that Petitioner had failed to make
“a substantial showing of the denial of a constitutional right” pursuant to 28
U.S.C. § 2253(c)(2) and that there were insufficient grounds for equitable tolling.
The petition was dismissed.
Petitioner subsequently filed another habeas petition, this time pursuant to
28 U.S.C. § 2241, attacking the revocation of his parole. Respondent moved to
dismiss the petition as being second and successive. The district court granted the
motion, and Petitioner timely filed this appeal.
In order for this court to grant a certificate of appealability, Petitioner must
make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To do so, Petitioner must demonstrate “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).
Petitioner contends that the district court erred in failing to reach the merits
of his § 2241 petition in which he alleges that he has been found actually innocent
of the alleged misconduct resulting in the parole revocation. However, the merits
of these arguments were raised in the original habeas petition and considered by
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both the district court and this court. Therefore, the current petition is second and
successive, and we cannot now reach the merits.
We have carefully reviewed Petitioner’s brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Petitioner’s brief raises an issue which meets our standards for the grant of a
certificate of appealability. For substantially the same reasons as set forth by the
district court in its Order of August 1, 2002, we cannot say “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner.” Id.
We DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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