Bluemel v. Friel

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 18, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DA RREN C. BLUEM EL,
No. 06-4271
Petitioner-A ppellant,
v. District of Utah
CLINT S. FRIEL, W arden and M ARK (D.C. No. 2:04-CV-1082 TC)
L. SHURTLEFF, Attorney General,
Respondents-Appellees.
OR DER DENY ING CERTIFICATE O F APPEALABILITY
Before B RISC OE , M cKA Y , and M cCO NNELL, Circuit Judges.
D arren B luemel, a state prisoner, seeks a certificate of appealability (COA )
that would allow him to appeal from the district court’s order denying his habeas
corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A). Because
we conclude that M r. Bluemel filed his petition after the one-year statute of
limitations expired, we deny his request for a COA and dismiss the appeal. Id. §
2253(c)(2).
Background
On June 11, 1999, M r. Bluemel pleaded guilty in Utah state court to first-
degree murder. He was represented by court-appointed counsel. At sentencing
on August 30, 1999, he received the maximum sentence under state law at the
time: an indeterminate sentence of five years to life in prison. The record
indicates that, when M r. Bluemel pleaded guilty and was sentenced, he was taking
antidepressants due to a head injury he had suffered some five years earlier.
Because M r. Bluemel did not appeal his conviction, it became final on
September 29, 1999, the deadline under state law for filing an appeal. On A ugust
25, 2000, M r. Bluemel— then proceeding pro se— filed his first petition for state
post-conviction relief. The state district court denied this petition on December
11, 2000. M r. Bluemel did not appeal that dismissal within the thirty-day
deadline, which expired on January 11, 2001. He filed a second state petition for
post-conviction relief on January 19, 2001, which the state court denied on M arch
2, 2001. M r. Bluemel again failed to appeal that decision within the thirty days
allotted for doing so, or before April 2, 2001.
M r. Bluemel filed a third state petition for post-conviction relief on June 8,
2001. After this petition was denied, M r. Bluemel pursued it through the appeals
process, which ended on December 2, 2003, when the Utah Supreme Court denied
certiorari.
M r. Bluemel filed this petition for federal habeas relief on November 23,
2004. The district court denied M r. Bluemel’s petition on procedural grounds,
holding that the petition was barred because it was filed outside of the one-year
statute of limitations period in 28 U.S.C. § 2244(d). The court rejected M r.
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Bluemel’s contention that the limitations period should be tolled on statutory and
equitable grounds. M r. Bluemel now requests a COA from this Court.
Discussion
The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed
only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. § 2253(c)(2). W hen a court
denies a habeas petition on procedural grounds without reaching the underlying
constitutional claim, as the district court did in this case, “a CO A should issue
when the prisoner shows . . . 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 w hether the district court was correct in
its procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000). W e find the
district court’s procedural ruling correct and therefore dismiss the petition.
The A nti-Terrorism and Effective D eath Penalty Act (“AEDPA”) imposes a
one-year statute of limitations on habeas petitions by state prisoners. 28 U.S.C. §
2244(d)(1). This limitation period is tolled while properly filed applications for
state post-conviction relief or other collateral review are pending. Id. §
2244(d)(2). AEDPA’s statute of limitations is also subject to equitable tolling in
cases w here extraordinary circumstances outside of the prisoner’s control lead to
delay in filing. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). M r.
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Bluemel argues that he qualifies for both statutory and equitable tolling. He is
mistaken.
The district court properly found that the one-year limitations period had
expired long before M r. Bluemel filed this § 2254 petition. Three-hundred thirty-
one days of the 365-day allotment had already passed w hen M r. Bluemel first
sought post-conviction relief in state court on August 25, 2000. Thereafter, the
limitations period was tolled while M r. Bluemel’s first and second state petitions
for post-conviction relief were “pending”— i.e., after the petitions were filed and
before the time for appealing the resolved petitions expired. See 28 U.S.C. §
2244(d)(2); Carey v. Saffold, 536 U.S. 214, 220 (2002). The thirty-four days
remaining in his limitations period ticked away while no petition was pending and
expired no later than April 29, 2001. Thus, M r. Bluemel’s November 2004 §
2254 petition fell outside AEDPA ’s statute of limitations by at least three and a
half years. A nd the fact that M r. Bluemel filed a third state petition for post-
conviction relief on June 8, 2001, does not change our analysis. This third
petition was filed more than one month after the limitations period had expired,
so there was nothing left for the June 8 petition to toll.
M r. Bluemel, however, argues that the limitations period is tolled to this
day because the state district court that heard his first petition for post-conviction
relief did not rule on a motion to amend, which he filed before the court
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dismissed his claim. But the limitations period is tolled only while “a state
prisoner is attempting, through proper use of state court procedures, to exhaust
state court remedies.” Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999).
It is not proper use of court procedure for M r. Bluemel to neglect to appeal his
post-conviction petition and then challenge the state district court’s failure to rule
on an outstanding motion three and a half years later in a § 2254 proceeding.
Rather, M r. Bluemel should have attacked the state court’s failure to rule on his
motion in an appeal to the Utah courts. Under AEDPA , tolling stopped as soon as
the time for appealing the denied petition expired; at that moment, the petition
was no longer pending. See Carey 536 U.S. at 220; Barnett, 167 F.3d at 1323(internal citations omitted). Thus, the judgment on M r. Bluemel’s first post-
conviction petition became final, not withstanding the outstanding motion to
amend, on January 11, 2001, the deadline to appeal.
Finally, we turn to M r. Bluemel’s claim that the limitations period was
equitably tolled because (1) he was denied access to a law library, (2) the Utah
State Prison contract attorneys refused to help, (3) the contract attorneys provided
erroneous advice, (4) he was acting pro se, (5) he is mentally disabled, (6) the
state refused him access to his court file, and (7) state incarceration officials
confiscated his accumulated legal materials.
One dispositive factor leads us to reject these claims. During the time for
which M r. Bluemel seeks equitable tolling, he filed three petitions for state post-
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conviction relief and a separate civil suit against the state of Utah challenging the
prison policy on access to attorneys and law libraries. Equitable tolling excuses a
late habeas petition only when a prisoner (1) “has been pursuing his rights
diligently, and (2) . . . some extraordinary circumstance stood in his way.” Pace
v. D iG uglielm o, 544 U.S. 408 (2005); see also M arsh, 223 F.3d at 1220. M r.
Bluemel’s litigation work while incarcerated shows that he was able to pursue
legal remedies despite the circumstances he claims prevented a timely § 2254
petition. See Gaston v Palmer, 417 F.3d 1030, 1034–35 (9th Cir. 2005) (rejecting
the petitioner’s argument for equitable tolling because he was able to file timely
state habeas petitions). In other words, M r. Bluemel’s own efforts show that
there was no “extraordinary circumstance” preventing him from timely filing a §
2254 petition.
Conclusion
Accordingly, we D EN Y M r. Bluemel’s request for a COA and DISM ISS
this appeal.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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