Gregory v. Palino

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 24 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
EDDIE GREGORY,
Petitioner - Appellant, No. 98-1372
v. (D.C. No. 98-D-1486)
JOE PALINO and ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining Petitioner-Appellant’s 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.
Petitioner Eddie Gregory appeals the district court’s dismissal of his 28
U.S.C. § 2254 petition for a writ of habeas corpus as time-barred by the one-year
*
This order and judgment is not binding precedent, except under the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.
limitation period in 28 U.S.C. § 2244(d). In 1982, Petitioner was convicted of
first degree murder, second degree assault, and conspiracy to commit second
degree assault after a jury trial in a Colorado state court. Petitioner received
concurrent sentences of life imprisonment for the first degree murder conviction,
eight years’ imprisonment for the second degree assault conviction, and four
years’ imprisonment for the conspiracy conviction. See People v. Gregory, 691
P.2d 357, 359 (Colo. Ct. App. 1984). The Colorado Court of Appeals affirmed
Petitioner’s conviction on direct appeal in 1984. See id. Petitioner subsequently
filed a motion for post-conviction relief, which the Colorado District Court of the
City and County of Denver denied on August 23, 1993. The Colorado Court of
Appeals affirmed the denial on June 27, 1996. See R., Doc. 11 at Exh. 2 (People
v. Gregory, No. 93CA1637 (Colo. Ct. App. June 27, 1996) (unpublished)). On
March 3, 1997, the Colorado Supreme Court denied certiorari on the denial of
Petitioner’s application for post-conviction relief. See id., Doc. 9 at 2 & Exh. 2.
The Colorado Court of Appeals issued a mandate with respect to the denial of the
post-conviction application on March 7, 1997. See id. at Exh. 2.
Proceeding pro se, Petitioner submitted a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 on July 2, 1998. The district court filed the
petition on July 9, 1998. Petitioner alleged that he was denied effective
assistance of counsel, which in turn deprived him of a fair trial, and that he was
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denied due process of law because the state trial court refused to grant him a new
trial based on newly discovered evidence. On August 21, 1998, the district court
entered an order directing Petitioner to show cause why the petition should not be
barred as untimely pursuant to 28 U.S.C. 2244(d) and why his petition should not
be denied for failure to exhaust state remedies. Petitioner filed a response to the
show cause order on September 14, 1998, in which he asserted that he had
exhausted all available state remedies. Petitioner also alleged the following
reasons for failing to timely file his section 2254 petition: he was proceeding pro
se; his post-conviction counsel failed to inform him of the applicable limitations
period; the facility in which he is incarcerated has a rule prohibiting prisoners
from assisting each other in legal matters; the Legal Access Program provided in
the facility failed to provide him with needed assistance; and the law library in
the facility was inadequate and did not contain the relevant federal materials.
The district court denied Petitioner’s habeas corpus petition on
September 18, 1998. Although the court concluded that Petitioner had exhausted
his state remedies, it determined that the petition was barred by the one-year
limitation period set forth in 28 U.S.C. § 2244(d) and stated that it was not
persuaded by the excuses Petitioner offered for failing to timely file the petition.
On October 13, 1998, the district court denied Petitioner’s application for a
certificate of appealability and his application for leave to proceed in forma
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pauperis on appeal.
On appeal, Petitioner renews his application for a certificate of
appealability and his request for leave to proceed on appeal in forma pauperis.
He raises essentially the same arguments he raised in his response to the show
cause order and his habeas corpus petition. Although he concedes that he did not
timely file his petition, Petitioner claims that his counsel’s failure to inform him
of the time limitation contained in 28 U.S.C. § 2244(d) and the inadequate law
library at the state prison facility justify his untimely petition. See Appellant’s
Application for Certificate of Appealability at 2. Petitioner also contends that a
grace period should apply to someone bringing a section 2254 petition for the first
time and that the absence of such a grace period constitutes a denial of due
process of law. See id. at 3.
We review de novo the legal bases for the district court’s dismissal of
Petitioner’s habeas corpus petition. See Jackson v. Shanks, 143 F.3d 1313, 1317
(10th Cir.), cert. denied, __ U.S. __, 119 S. Ct. 378 (1998). The one-year
limitation period set forth in 28 U.S.C. § 2244(d) was enacted pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996. Because Petitioner’s
conviction and sentence became final before April 24, 1996, the effective date of
the AEDPA, Petitioner had until April 23, 1997, to file his petition. See United
States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). Pursuant to the statutory
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tolling provision in 28 U.S.C. § 2244(d)(2), however, the limitation period was
tolled while Petitioner pursued properly filed state post-conviction relief. See
Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998). We cannot tell from the
record the exact time during which Petitioner’s post-conviction relief application
was pending. However, we can surmise that Petitioner filed his application
sometime before August 23, 1993, the date on which the Colorado state district
court denied his motion, and that the Colorado Court of Appeals issued the final
mandate on Petitioner’s application on March 7, 1997. Generously construing
these dates in favor of Petitioner, we agree with the district court that Petitioner
should have filed his habeas corpus petition by March 7, 1998. See Williams v.
Boone, No. 98-6357, 1999 WL 34856, at *4 (10th Cir. Jan. 28, 1999) (“[F]or
prisoners whose convictions became final prior to April 24, 1996, the tolling
provisions apply only from April 24, 1996 until the time at which any post-
conviction proceeding is completed.”). Petitioner did not submit his petition until
almost four months after that date, on July 2, 1998. We therefore agree with the
district court that his habeas corpus petition is untimely and barred by the
provisions of 28 U.S.C. § 2244(d)(1) and (2).
We also reject Petitioner’s contentions for excusing his untimely filing.
Although he asserts that “the prison law library had removed all federal statutes
from the facility law library,” Appellant’s Br. at 11, “[i]n the final analysis, . . .
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[Petitioner] has provided no specificity regarding the alleged lack of access and
the steps he took to diligently pursue his federal claims.” Miller v. Marr, 141
F.3d 976, 978 (10th Cir.), cert. denied, __ U.S. __, 119 S. Ct. 210 (1998). Such
conclusory allegations are insufficient to justify equitable tolling. See id. (“It is
not enough to say that the [state] facility lacked all relevant statutes and case law
or that the procedure to request specific materials was inadequate.”); cf.
Cartwright v. Maynard, 802 F.2d 1203, 1211 (10th Cir. 1986) (affirming denial of
federal habeas petition that was “based on general allegations . . . without
substantive, supporting facts”), modified on other grounds, 822 F.2d 1477, 1478
n.2 (10th Cir. 1987), aff’d, 486 U.S. 356 (1988). Petitioner’s pro se status also
does not justify his failure to timely file his 28 U.S.C. § 2254 petition. See
Williams, 1999 WL 34856, at *3; cf. Rodriguez v. Maynard, 948 F.2d 684, 687
(10th Cir. 1991) (holding that “in abuse of the writ cases, cause and prejudice
standard applies to pro se petitioners just as it applies to petitioners represented
by counsel”). Further, because there is no legal right to counsel in collateral
proceedings, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), Petitioner’s
alleged lack of legal advice concerning the limitations period cannot constitute
sufficient cause for his failure to timely file his petition. See Williams, 1999 WL
34856, at *3; Whiddon v. Dugger, 894 F.2d 1266, 1267 (11th Cir.), cert. denied,
498 U.S. 834 (1990).
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Finally, Petitioner’s argument that the limitations period set forth in 28
U.S.C. § 2244(d) should be subject to a grace period and that the lack of a grace
period deprives him of due process is without merit. Not only has this court
recognized that the one-year limitation period does not begin to run until
April 24, 1996, for those convictions that became final before April 24, 1997, see
Simmonds, 111 F.3d at 746, but also the limitations period is subject to statutory
tolling under 28 U.S.C. § 2244(d)(2) and to equitable tolling. See Miller, 141
F.3d at 978. We have applied the statutory tolling provision of section
2244(d)(2), and we have determined that the facts of this case do not warrant
equitable tolling. Under these circumstances, no deprivation of due process has
occurred.
In short, Petitioner’s excuses are not sufficient to equitably toll the
limitations period set forth in 28 U.S.C. § 2244(d)(1). Petitioner therefore has not
made a substantial showing of the denial of a constitutional right as required by
28 U.S.C. § 2253(c)(2). See Williams, 1999 WL 34856, at *4 (holding that where
petitioner did not present adequate excuses for untimely filing of section 2254
petition, he failed to meet standard for issuance of certificate of appealability).
Accordingly, we DENY Petitioner’s application for a certificate of
appealability and his motion for leave to proceed in forma pauperis on appeal.
Petitioner’s appeal is DISMISSED.
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Entered for the Court
Monroe G. McKay
Circuit Judge
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