Sunday v. State of Oklahoma

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 17, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
TIM O TH Y LEE SU N D A Y,
Petitioner - A ppellant,
No. 06-5020
v. (D.C. No. 05-CV -209-JOE)
(N.D. Okla.)
STA TE OF O K LA H O MA ,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE O F APPEALABILITY
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
Timothy Lee Sunday, a state inmate appearing pro se, seeks a certificate of
appealability (COA) so that he may appeal from the district court’s denial of his
habeas petition filed pursuant to 28 U.S.C. § 2254. Because M r. Sunday has
failed to demonstrate that it is reasonably debatable whether the district court’s
procedural ruling dismissing his claim is correct, Slack v. M cDaniel, 529 U.S.
473, 484 (2000), we deny a COA and dismiss the appeal.
On November 6, 1992, a jury convicted M r. Sunday of five counts of sexual
battery in Craig County District Court, Oklahoma. On February 8, 1993, he was
sentenced to one-year imprisonment on each of the five counts. 1 R. Doc. 6 at Ex.
1. H e did not file a direct appeal from his conviction. See R. Doc. 11, Ex. A. O n
M arch 30, 2005 he filed an application for post-conviction relief in state court, R.
Doc. 1, Ex. 2, which was rejected as untimely and frivolous. R. Doc. 13 at 2;
Doc. 1, Ex. 1. Nothing in the record indicates M r. Sunday filed any other form of
post-conviction appeal.
On April 18, 2005, M r. Sunday filed his federal habeas petition. See R.
Doc. 1. In its amended form, he challenged his conviction and multiple sentences
on several grounds. See R. Doc. 4. On January 9, 2006, without addressing M r.
Sunday’s constitutional claims, the district court dismissed his habeas petition as
time-barred by the one-year limitations period in 28 U.S.C. § 2244(d)(1). R. Doc.
13. M r. Sunday filed a notice of appeal and request for a COA on January 24,
2006. R. Doc. 17. On January 26, the district court denied his request. R. Doc.
22 at 2. W hen the district court denies a habeas petition on procedural grounds
and fails to address the prisoner’s constitutional claims, we may issue a COA only
if the prisoner demonstrates that it is reasonably debatable whether (1) the
petition states a valid claim of the denial of a constitutional right, and (2) the
district court’s procedural ruling is correct. Slack, 529 U.S. at 484.
1
M r. Sunday is presently serving a sentence imposed for a conviction
other than the one in this collateral attack. R. Doc. 4 at 2. It appears that the
conviction here was used in A labama habitual offender proceedings, which M r.
Sunday may be challenging in Alabama federal court. Id. at 3.
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On appeal, M r. Sunday argues the merits of his claims and that the district
court erred in determining that his action is barred by limitations. The district
court’s conclusion that M r. Sunday claims are time-barred is not reasonably
debatable. The Antiterrorism and Effective Death Penalty Act (AEDPA ), enacted
on April 24, 1996, provides that a “1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court.” 28 U.S.C. § 2244(d)(1). This limitation period
usually commences on “the date on which the judgment became final by . . . the
expiration of the time for seeking [direct] review.” 28 U.S.C. § 2244(d)(1)(A).
However, a state prisoner whose conviction became final on or before April 24,
1996 must file his § 2254 motion on or before April 24, 1997. See United States
v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003); Hoggro v. Boone, 150 F.3d 1223,
1226 (10th Cir. 1998). M r. Sunday did not file a direct appeal from his
conviction, and thus it became final on February 18, 1993, ten days after the
imposition of his judgment and sentence. See Rule 2.1(B), Okla. Stat. tit. 22, Ch.
18, app. Because M r. Sunday’s conviction became final before April 24, 1996, he
had until April 24, 1997 to file his § 2254 petition. He did not file his § 2254
motion until A pril 18, 2005, almost eight years past the deadline.
The running of the limitations period would be tolled or suspended during
the pendency of any post-conviction or other collateral proceeding filed during
the one-year limitations period. See Hoggro, 150 F.3d at 1226. But a petition for
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post-conviction relief filed in state court after the limitations period has expired
no longer serves to toll it. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th
Cir. 2001). Thus, M r. Sunday’s M arch 30, 2005 application for post-conviction
relief is of no consequence. And although the limitations period for § 2254
motions is subject to equitable tolling in extraordinary circumstances, Gibson v.
Klinger, 232 F.3d 799, 808 (10th Cir. 2000), M r. Sunday does not raise any
reasons that support tolling here.
W e GRANT IFP status, DENY a COA, and DISM ISS this appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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