Hancox v. Allbaugh

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 29, 2017
Elisabeth A. Shumaker
Clerk of Court
AARON JAQUEZ HANCOX
Petitioner - Appellant,
v. No. 16-6333
(D.C. No. 5:16-CV-00739-C)
JOE ALLBAUGH, Director, (W.D. Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
Aaron Hancox, an Oklahoma state prisoner proceeding pro se, seeks a certificate
of appealability (COA) to appeal the district court’s dismissal of his § 2254 application
for a writ of habeas corpus. As a state prisoner, Mr. Hancox must first receive a COA to
be heard on the merits of his appeal. 28 U.S.C. § 2253(c)(1)(A). When, as here, a habeas
application is dismissed on procedural grounds “without reaching the prisoner’s
underlying constitutional claim,” we may issue a COA only if “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). Mr. Hancox does not satisfy this standard.
*
This order is not binding precedent, except under the doctrines of law of the case,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.
Mr. Hancox’s application was dismissed by the district court as time-barred under
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §
2244(d). AEDPA established a one-year limitations period for the filing of habeas
petitions by prisoners in state custody. The limitations period begins to run on the latest
of the following: (1) the date on which a state court judgment becomes final; (2) the date
of the removal of an unconstitutional state-created impediment; (3) the date on which a
right is newly recognized by the Supreme Court; or (4) the date on which the factual
predicate of claims could have been discovered through due diligence. See 28 U.S.C. §
2244(d)(1)(A)–(D). The limitations period may be tolled for the “time during which a
properly filed application for State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).
The district court ran the limitations period from the date on which Mr. Hancox’s
state-court judgment became final: Mr. Hancox entered a guilty plea and was sentenced
on July 6, 2011. He did not file a motion to withdraw the plea (or otherwise seek to
appeal the conviction), so the conviction became “final” on July 16, 2011, ten days after
the pronouncement of the judgment and sentence. See Okla. R. Crim. App. 4.2; Clayton
v. Jones, 700 F.3d 435, 441 (10th Cir. 2012). The one-year limitations period for filing a
federal habeas application began the following day, and expired one year later, on July
17, 2012. The district court then added eighty-four days after assuming that Mr.
Hancox’s request for a sentence modification under Okla. Stat. tit. 22, § 982a, which was
filed on April 12, 2012, and denied on July 5, 2012, statutorily tolled the limitations
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period. With eighty-four days added to the limitations period, Mr. Hancox had until
October 9, 2012 to file his § 2254 application. He filed it on June 28, 2016.
Mr. Hancox does not argue that he is entitled to statutory or equitable tolling.
Instead, he asserts that his ineffective-assistance-of-counsel (IAC) claim is exempted
from AEDPA’s limitations period, arguing his “claim is all but identical to the Lafler
claim, in both issue and timeline,” and that “by the very language of Lafler holding his
case is not subject to any bar under AEDPA.” (Opening Br. at 13, 9; see also id. at 13
(“An ineffective assistance of counsel such as Petitioner’s is not subject to time bars.”))
But Mr. Hancox misreads Lafler. “Lafler held that an attorney who rendered
constitutionally deficient advice to reject a plea bargain was ineffective where his advice
caused his client to reject the plea and go to trial, only to receive a much harsher
sentence.” United States v. Vanderwerff, 788 F.3d 1266, 1272–73 (10th Cir. 2015).
Timeliness was not an issue in Lafler, so the Court had no reason to address it. IAC
claims are not categorically exempted from AEDPA’s limitations period. See, e.g.,
McQuiggin v. Perkins, 133 S. Ct. 1924, 1929 (2013); Davis v. McCollum, 798 F.3d 1317,
1320 (10th Cir. 2015); see also, e.g., Shawley v. Bear, 662 F. App’x 581, 583 (10th Cir.
2016). Nor does Ladd v. Stephens, 748 F.3d 637 (5th Cir. 2014), which Mr. Hancox
quotes, help his cause. That case had to do with deference to state court proceedings.
Here, the problem for Mr. Hancox is not that he is barred from federal habeas relief by
virtue of something a state court did or did not do. Finally, insofar as Mr. Hancox seeks
to challenge errors or deficiencies in his state court postconviction proceedings, or raise
claims under state law, such claims are generally not cognizable under federal habeas
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review. See United States v. Dago, 441 F.3d 1238, 1248 (10th Cir. 2006) (“[D]ue
process challenges to post-conviction procedures fail to state constitutional claims
cognizable in a federal habeas proceeding.”); Montoya v. State of N.M., 55 F.3d 1496,
1499 (10th Cir. 1995).
Reading Mr. Hancox’s pro se pleadings liberally (very liberally), he may be
arguing that the limitations period began on a later, alternative date. As noted above,
under § 2244(d)(1)(D) the one-year limitations period does not begin to run until the date
on which the factual predicate of the claim(s) presented could have been discovered
through the exercise of due diligence. An IAC claim has two components: “[T]o
establish a claim of ineffective assistance of counsel, the defendant must show not only
that counsel’s performance was deficient but that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Washington v. Roberts, 846 F.3d 1283, 1296 (10th Cir. 2017) (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)). Accordingly, “to have the factual
predicate for a habeas petition based on ineffective assistance of counsel, a petitioner
must have discovered (or with the exercise of due diligence could have discovered) facts
suggesting both unreasonable performance and resulting prejudice.” Hasan v. Galaza,
254 F.3d 1150, 1154 (9th Cir. 2001) (emphasis omitted).
Mr. Hancox’s federal habeas application and subsequent filings could be read
(again, construing them very liberally) as asserting that he did not discover the facts that
would establish prejudice until well after his sentence became final. Alternatively, Mr.
Hancox may be attempting to raise claims of ineffective assistance of appellate counsel
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or ineffective assistance of counsel in postconviction proceedings. Either way, the
timeline leading up to the filing of his § 2254 application would be the same: Mr.
Hancox was sentenced on July 6, 2011. According to Mr. Hancox, he “immediately
expressed his surprise and disagreement with the sentence . . . to his attorney,” but
counsel “told him to be quiet and not worry about it” because “his sentence would be
adjusted as expected at the one year review hearing.” (Opening Br. at 2.) Mr. Hancox’s
counsel filed a motion for sentence modification on April 12, 2012. It was denied on July
5, 2012, after a hearing during which, Mr. Hancox alleges, his “counsel never objected,
or bothered to make any sort of statement to the court. He remained completely silent
throughout.” (Id. at 4.) According to Mr. Hancox, counsel assured him after the hearing
that he would appeal the denial of the motion for sentence modification. Relying on his
counsel’s assurances, “[Mr. Hancox] left the courtroom expecting an appeal to be filed in
his behalf.” (Id.)
But Mr. Hancox’s counsel never filed an appeal. Mr. Hancox alleges to have sent
his counsel fourteen letters seeking information about his appeal between March 10,
2013, and April 23, 2014. It was not until late February 2014 that Mr. Hancox received a
response from his counsel, at least according to Mr. Hancox. In a letter dated February
19, 2014, which was marked as received by the prison on February 21, 2014, counsel
advised Mr. Hancox that he could not represent Mr. Hancox any further. Reading his
filings very liberally (this point cannot be emphasized enough), Mr. Hancox might be
asserting that he did not know, and could not have discovered through due diligence, the
facts establishing prejudice, until he heard back from counsel in late February 2014. (Or,
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as noted above, he may be attempting to raise an IAC claim based on this post-plea-
agreement sequence of events.) But Mr. Hancox’s § 2254 application for federal habeas
relief would still be untimely. Even assuming for the sake of argument that the statute of
limitations began to run from February 2014 and was tolled from January 26, 2015, to
April 21, 2016, while additional postconviction proceedings were pending in state court,
Mr. Hancox would have had until mid-May 2016 to file a petition. He filed it on June 28,
2016.
Accordingly, we DENY Mr. Hancox’s request for a certificate of appealability.
We GRANT his request to proceed in forma pauperis on appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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