Young v. Addison

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 5, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
D A V ID LEE Y O U N G,
Petitioner-A ppellant, No. 07-6130
v. W estern District of Oklahoma
M IKE ADDISO N, W arden, (D.C. No. 07-CV-114-M )
Respondent-Appellee.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.
David Lee Young, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) 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. Young has failed to make “a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a
COA, and dismiss the appeal.
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
Background
On June 16, 2003, M r. Young, then represented by retained counsel,
pleaded guilty to three counts of kidnaping, two counts of robbery with firearms,
and one count of larceny of an automobile. The conviction and sentence w ere
entered by the D istrict Court of O klahoma County on August 1, 2003. On A ugust
7, 2003, M r. Young filed a Notice of Plea Withdrawal with the court. This notice
was timely under Rule 4.2(A) of the Oklahoma Court of Criminal Appeals, which
allows defendants to appeal from conviction on a guilty plea only if they have
applied to withdraw their plea within ten days of the date of the pronouncement of
the judgment and sentence. Okla. Ct. Crim. App. R. 4.2(A). The court dismissed
M r. Young’s motion, and he did not timely appeal the dismissal. However, on
June 7, 2004, with the assistance of counsel from the O klahoma Indigent Defense
System, M r. Young was granted leave to file an appeal out-of-time to challenge
the district court’s denial of his motion to withdraw his plea. On February 11,
2005, the Oklahoma Court of Criminal Appeals considered the appeal and
affirmed M r. Y oung’s sentence.
On January 29, 2007, M r. Young filed a petition for habeas corpus under
28 U.S.C. § 2254 in the W estern District of Oklahoma. He asserted that he had
received ineffective assistance of counsel at the time of his plea and that the
Oklahoma procedure for withdrawing a guilty plea interfered with his ability to
discover and raise this claim. The petition was reviewed by a magistrate judge,
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who found it time-barred and recommended dismissal. The district court agreed
and dismissed the petition on M ay 15, 2005. M r. Young now seeks a COA to
appeal this dismissal.
Discussion
A final order denying 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.” 28 U.S.C. § 2253(c)(2). Where, as here, the
district court denies a habeas petition on procedural grounds,
a COA should issue when the prisoner shows, at least, 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 whether the district court was correct in its
procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this case, we conclude that no
reasonable jurist would find the correctness of the district court’s procedural
ruling debatable.
The district court held that M r. Young’s petition violated the one-year
statute of limitations imposed on habeas petitions by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1). This
limitations period runs “from the latest of” one of four possible start dates, id.,and is tolled while properly filed applications for state post-conviction relief or
other collateral review are pending, id. § 2244(d)(2). Under subparagraph (A),
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the limitations period begins to run on “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking
such review.” Id. § 2244(d)(1)(A). Because M r. Young did not petition the
Supreme Court of the United States for certiorari after his loss before the
Oklahoma Court of Criminal Appeals, his conviction became final for purposes of
subparagraph (A) ninety days after that court’s order affirming his conviction.
See Rhine v. Boone, 182 F.3d 1153, 1155–56 (10th Cir. 1999). Thus M r. Young’s
conviction became final on M ay 12, 2005, and he had until M ay 12, 2006, to file
his petition for habeas corpus. Under subparagraph (A), then, his January 29,
2007 petition was untimely by at least 243 days.
M r. Young argues, as he did below, that the timeliness of his petition
should instead be governed by subparagraph (B) or (D), 28 U.S.C. §
2244(d)(1)(B) & (D). We disagree.
Under subparagraph (B), the one-year limitations period would begin to run
on “the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action.” Id. §
2244(d)(1)(B). M r. Young asserts that Oklahoma’s procedures for withdrawing a
plea of guilty “interfered with his ability to discover and raise his ineffective
assistance of counsel claims.” Petr.’s Br. 2. Specifically, he claims that “[u]nder
Oklahoma law, trial counsel was required to prepare a motion raising ineffective
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assistance of counsel claims against himself,” which creates what he calls a
conflict of interest. This argument is misdirected. Oklahoma’s procedure for
withdrawing a guilty plea in state court did not “prevent” M r. Young from filing a
federal habeas petition two years later. And even if M r. Young’s retained
attorney during the plea stage could be said to have been unconstitutionally
conflicted, this “impediment” had surely been removed by 2004, at which time
M r. Young was represented by new counsel from the Oklahoma Indigent Defense
System. This alleged conflict, then, could not have interfered with M r. Young’s
ability to meet a one-year deadline running from May 2005.
Alternatively, M r. Young argues, under subparagraph (D) the limitations
period should run from “the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise of due
diligence.” 28 U.S.C. § 2244(d)(1)(D). Mr. Young never suggests any specific
date on which he could have discovered his claim for ineffective assistance of
counsel, although we suppose he thinks it must have been at some time after
January 10, 2006, which would make his petition timely. However, the record
indicates that M r. Young had knowledge of this claim shortly after his conviction.
In his Notice of Plea Withdrawal, filed only days after his conviction, M r. Young
asserted that his attorney was “ineffective in his representation” and that the
advice he had received on the plea agreement was “misleading.” R. Doc. 1, Ex. 9,
at 2. Further, he was represented by new counsel at that hearing and on appeal
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before the Court of Criminal Appeals. Had M r. Young exercised due diligence, as
is required in order to qualify for a delayed trigger date under § 2244(d)(1)(D), he
would have asserted his claim as soon as he discovered it. As the magistrate
judge held, Mr. Young has “failed to articulate any reason for the lengthy delay in
discovering the factual basis of his ineffective assistance of counsel claim.” R.
Doc. 18, at 6.
Finally, M r. Young asserts that he qualifies for equitable tolling of the
limitations period. However, equitable tolling only applies when it is shown that
a prisoner “diligently pursues his claims and demonstrates that the failure to
timely file was caused by extraordinary circumstances beyond his control.”
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Mr. Young has not made
any showing of “extraordinary circumstances” that prevented him from filing his
petition.
For these reasons, we reject M r. Young’s reliance on 28 U.S.C. §
2244(d)(1)(B) or (D), and agree with the court below that his petition was
untimely under subparagraph (A) of that section.
Conclusion
Accordingly, we DENY M r. Young’s request for a COA and DISM ISS this
appeal. His motion to proceed in forma pauperis is also DENIED.
Entered for the Court,
M ichael W. McConnell
Circuit Judge
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