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Miller v. Marr

United States Court of Appeals, Tenth Circuit
Apr 14, 1998
141 F.3d 976 (10th Cir. 1998)

Summary

holding that the one-year limitation on filing a § 2254 petition did not violate petitioner's rights under Suspension Clause

Summary of this case from U.S. v. Sandoval

Opinion

No. 97-1380.

Filed April 14, 1998.

Appeal from the United States District Court for the District of Colorado.

(D.C. No. 97-S-1628).

Submitted on the Briefs:

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

George Miller, pro se.

Before PORFILIO, KELLY, and HENRY, Circuit Judges.


Mr. Miller, an inmate, appeals from the dismissal of his habeas corpus petition, 28 U.S.C. § 2254. Upon recommendation of the magistrate judge, the district court dismissed the action as untimely under the one-year limitation period contained in 28 U.S.C. § 2244(d)(1), enacted under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214. He now appeals, conceding that the petition was filed beyond the time limit in § 2244(d)(1), see Aplt. Br. (Form A-11) at 11-11A, but contending that the delay should be imputed to the state due to lack of access to legal materials. See 28 U.S.C. § 2244(d)(1)(B). We grant Mr. Miller's motion for leave to proceed on appeal without prepayment of costs or fees, grant his application for a certificate of appealability on the above issue, see 28 U.S.C. § 2253(c), and affirm the district court's judgment of dismissal.

Mr. Miller pled guilty to second degree murder and attempted second degree assault in Colorado in 1989. He was sentenced to forty years and thirteen years on the respective convictions, the sentences to run consecutively. He unsuccessfully appealed to the Colorado Court of Appeals, and the Colorado Supreme Court denied certiorari on March 25, 1991. Thereafter, Mr. Miller filed a motion for state post-conviction relief, unsuccessfully appealed to the Colorado Court of Appeals, and the Colorado Supreme Court denied certiorari on October 4, 1993.

In his petition dated July 10, 1997, Mr. Miller raises two grounds for relief: (1) he was given an unduly harsh sentence, and (2) he received inadequate advice that his sentences could be consecutive upon entering his plea. He indicates that the first ground was raised on direct appeal; the second was raised in his motion for post-conviction relief. To avoid the one-year limitation period, Mr. Miller was required to file prior to April 24, 1997, one year after the enactment of the AEDPA. See United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997).

Mr. Miller contended below that the one-year limitation on filing a first habeas petition violated the Suspension Clause, U.S. Const. art. I, § 9, cl. 2, the Constitution's prohibition on suspending the writ. Whether the one-year limitation period violates the Suspension Clause depends upon whether the limitation period renders the habeas remedy "inadequate or ineffective" to test the legality of detention. Swain v. Pressley, 430 U.S. 372, 381 (1977); United States v. Hayman, 342 U.S. 205, 223 (1952). The burden is on the petitioner to demonstrate inadequacy and ineffectiveness. See Bradshaw v. Story, 86 F.3d 164, 167 (10th Cir. 1996).

In Felker v. Turpin, 116 S.Ct. 2333 (1996), the Court held that restrictions on filing successive petitions did not constitute a suspension of the writ, but did not address restrictions on filing a first petition. See id. at 2339-40. In Lonchar v. Thomas, 116 S.Ct. 1293 (1996), the Court disapproved of dismissal of a first federal habeas petition on equitable grounds outside of the statutory rule concerning delayed petitions, Rule 9(a) of the Rules Governing § 2254 Cases in the United States District Courts. See id. at 1303. The Court distinguished between successive petitions and first federal habeas petitions: "Dismissal of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty." Id. at 1299. At the same time, the Court expressed a clear deference to the rules that Congress has fashioned concerning habeas. See id. at 1298.

There may be circumstances where the limitation period at least raises serious constitutional questions and possibly renders the habeas remedy inadequate and ineffective. Cf. Treistman v. United States, 124 F.3d 361, 373-380 (2d Cir. 1997) (§ 2255). After considering the claims Mr. Miller desires to raise, however, we are satisfied that such circumstances are not implicated here. It must be remembered that § 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling. See Calderon v. United States District Court, 128 F.3d 1283, 1287-88 (9th Cir. 1997), cert. denied, 118 S.Ct. 899 (1998). Moreover, Mr. Miller does not contend, for example, that a constitutional violation has resulted in the conviction of one who is actually innocent or incompetent. See Schlup v. Delo, 513 U.S. 298, 324-29 (1995); Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 1376-77 (1996). The one-year time period begins to run in accordance with individual circumstances that could reasonably affect the availability of the remedy, see 28 U.S.C. § 2244(d)(1)(B)-(D); see also Calderon, 128 F.3d at 1289 (limitation period tolled for extraordinary circumstances over which inmate had no control), but requires inmates to dilegently pursue claims.

Mr. Miller had from October 4, 1993 to file his federal habeas petition. He had an additional year after the enactment of AEDPA given this circuit's decision in Simmonds. Mr. Miller contends that because he was housed at a private Minnesota correctional facility from January 21, 1995 until April 29, 1997, he lacked access to federal statutes and Colorado case law and only learned upon his return of the AEDPA's one-year time period. See R. doc. 7 at 2. Of course, this does not explain Mr. Miller's lack of pursuit of his federal claims before the transfer from Colorado to Minnesota, from October 4, 1993 until January 20, 1995. We note that the claims Mr. Miller sought to raise are similar to those raised in his direct appeal and motion for state post-conviction relief, thereby undercutting his argument that lack of access caused his delay. In the final analysis, however, Mr. Miller has provided no specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal claims. Cf. Lewis v. Casey, 116 S.Ct. 2174, 2179 (1996). It is not enough to say that the Minnesota facility lacked all relevant statutes and case law or that the procedure to request specific materials was inadequate. See Aplt. Br. (Form A-11) at 10. It is apparent that Mr. Miller simply did not know about the limitation in the AEDPA until it was too late.

AFFIRMED.


Summaries of

Miller v. Marr

United States Court of Appeals, Tenth Circuit
Apr 14, 1998
141 F.3d 976 (10th Cir. 1998)

holding that the one-year limitation on filing a § 2254 petition did not violate petitioner's rights under Suspension Clause

Summary of this case from U.S. v. Sandoval

holding limited library access insufficient to establish extraordinary circumstances warranting equitable tolling

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holding that, where petitioner does not contend he is actually innocent, the limitation period does not render the habeas remedy inadequate and ineffective

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holding that, where petitioner does not contend he is actually innocent, the limitation period does not render the habeas remedy inadequate and ineffective, but noting that there may be circumstances — for example a constitutional violation has resulted in the conviction of one who is actually innocent — where the limitation period "at least raises serious constitutional questions and possibly renders the habeas remedy inadequate and ineffective"

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holding equitable tolling not warranted to prisoner claiming he lacked access to federal statutes and case law, and only learned of AEDPA's time limitations sometime after April 29, 1997

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holding that, to apply the doctrine of equitable tolling, a petitioner must provide "specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal claims"

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holding alleged lack of access to law library materials and resulting unawareness of limitation period did not warrant equitable tolling

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holding that to invoke equitable tolling, "It is not enough to say that the [prison] facility lacked all relevant statutes and case law or that the procedure to request specific materials was inadequate."

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holding petitioner's contention he was housed in private correctional facility where he lacked access to federal statutes and case law for approximately two year period of time did not warrant equitable tolling

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holding petitioner's contention he was housed in private correctional facility where he lacked access to federal statutes and case law for approximately two year period of time did not warrant equitable tolling

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holding that equitable tolling was not justified by the fact that petitioner simply did not know about AEDPA time limitation

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holding equitable tolling not warranted to prisoner claiming he lacked access to federal statutes and case law, and only learned of ADEPA's time limitations sometime after April 29, 1997

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holding the statute of limitations contained in § 2244(d) does not violate the Suspension Clause

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holding that equitable tolling did not apply, in part, because the petitioner provided no specificity regarding the steps he took to diligently pursue his federal claims

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holding that the limitation period imposed by § 2244 is not jurisdictional but rather is subject to equitable tolling

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holding that petitioner's failure to provide specific information regarding his alleged lack of access to legal materials was fatal to his claim of entitlement to equitable tolling

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holding that petitioner did not diligently pursue his claims when he allowed four years to lapse between the completion of his state post-conviction review and the filing of his federal petition for writ of habeas corpus

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holding equitable tolling not warranted to prisoner claiming he lacked access to federal statutes and case law, and only learned of AEDPA's time limitations sometime after April 29, 1997

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holding that equitable tolling applies to one-year limitation period in 28 U.S.C. § 2244(d)

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holding that equitable tolling did not apply where access to legal materials that would have given notice of the limitations period was delayed

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holding that AEDPA's limitation period not equitably tolled where petitioner "provided no specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal claims"

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finding that lack of access to case law does not warrant equitable tolling

Summary of this case from Mayberry v. Rios

finding petitioner "provided no specificity regarding the alleged . . . steps he took to diligently pursue his federal [habeas] claim" and concluding that petitioner "simply did not know about the [one-year] limitation"

Summary of this case from Banks v. Trani

finding that petitioner "provided no specificity regarding the alleged lack of access [to federal statutes, state case law and AEDPA materials] and the steps he took to diligently pursue his federal claims" and concluding that "[i]t is not enough to say that the [prison] lacked all relevant statues and case law or that the procedure to request specific materials was inadequate"

Summary of this case from Dunn v. NENMDF/Geo Grp. Prison Library

finding equitable tolling is not justified by the fact that the petitioner did not know about AEDPA's time limitation

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Case details for

Miller v. Marr

Case Details

Full title:GEORGE LEE MILLER, Petitioner-Appellant, v. RICHARD MARR; ATTORNEY GENERAL…

Court:United States Court of Appeals, Tenth Circuit

Date published: Apr 14, 1998

Citations

141 F.3d 976 (10th Cir. 1998)

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