FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 4, 2018
Elisabeth A. Shumaker Clerk of Court DANIEL ROBERT AKRE,
Petitioner - Appellant, No. 17-6177 v. (D.C. No. 5:16-CV-00665-R) (W.D. Okla.) JOE M. ALLBAUGH,
Respondent - Appellee.
ORDER *
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
In 2008, Mr. Daniel Akre entered an Alford plea in Oklahoma state
court on four counts of lewd molestation and one count of indecent
proposal of a minor. Through this plea, Mr. Akre protested his innocence
but acknowledged that the State’s evidence would be sufficient to convict.
State ex rel. Okla. Bar Ass’n v. Murdock, 236 P.3d 107, 109 n.2 (Okla.
2010).
* This order does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). The trial court accepted the plea and sentenced Mr. Akre to 25 years’
imprisonment, with half of the sentence suspended. After unsuccessfully
challenging the conviction in state-court proceedings, Mr. Akre filed a
federal habeas petition in June 2016. The federal district court rejected Mr.
Akre’s
habeas claims and
separate claim for an injunction against the state’s enforcement of some provisions of the suspended sentence.
Mr. Akre seeks a certificate of appealability so that he can appeal the
district court’s order dismissing his habeas petition and claim for
injunctive relief. In seeking the certificate, Mr. Akre raises five issues. We
reject each of Mr. Akre’s arguments and deny the certificate of
appealability.
1. Standard for a Certificate of Appealability
To appeal, Mr. Akre needs a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(A). We can issue this certificate only if Mr. Akre shows that
the district court’s ruling was debatable or wrong. See Laurson v. Leyba,
507 F.3d 1230, 1231-32 (10th Cir. 2007).
2. The district court correctly held that eight of the habeas claims were time-barred.
The district court rejected eight of Mr. Akre’s nine habeas claims
because Mr. Akre had not filed the habeas petition within the one-year
period of limitations. This ruling was correct. 2 Mr. Akre entered his plea on February 1, 2008, and was sentenced on
March 26, 2008. He had ten days to seek withdrawal of his plea. Okla. Ct.
Crim. App. R. 4.2(A); see Gordon v. Franklin, 456 F. App’x 739, 742
(10th Cir. 2012) (unpublished) (applying Rule 4.2(A) to an Alford plea
entered in Oklahoma state court). Because he failed to seek withdrawal of
his plea within ten days, the conviction became final on April 8, 2008. See
Gordon, 456 F. App’x at 742.
Mr. Akre then had one year to file a habeas petition in federal court.
28 U.S.C. § 2244(d)(1)(A). Instead, he waited over eight years before
filing a federal habeas petition. As a result, the habeas claims were
untimely.
Mr. Akre makes various arguments regarding the eight habeas claims.
For example, on his claim involving competency, he asserts that the
limitations period did not start until he was given a competency hearing.
But Mr. Akre provides no support for this assertion. 1
1 Mr. Akre has not argued, either in district court or our court, that his alleged incompetency would support equitable tolling. Cf. Biester v. Midwest Health Servs., 77 F.3d 1264, 1268 (10th Cir. 1996) (“[T]he Tenth Circuit has never held that mental incapacity tolls the statute of limitations.”); Ebrahimi v. E.F. Hutton & Co., 852 F.2d 516, (10th Cir. 1988) (“We are reluctant to expand the equitable tolling doctrine to include mental incapacity or illness where no court has previously recognized such a tolling factor.”); Rantz v. Hartley, 577 F. App’x 805, 810 (10th Cir. 2014) (unpublished) (“‘[T]his circuit has yet to apply equitable tolling on the basis of mental incapacity.’” (quoting McCall v. Wyo. Att’y Gen, 339 F. App’x 848, 850 (10th Cir. 2009) (unpublished))). We note, however, that
3 In addition, Mr. Akre argues that his claim of ineffective assistance
of counsel can proceed because the Oklahoma Court of Criminal Appeals
addressed the merits in post-conviction proceedings. But this argument
does not bear on the timeliness of the claim.
Mr. Akre does not present any arguments about timeliness for four of
his claims:
1. that he was not informed of Oklahoma’s rule requiring him to serve at least 85% of his sentence before parole,
2. that the District Attorney failed to carry out promises made in Mr. Akre’s plea bargain,
3. that the prosecution acted maliciously and violated the Fifth Amendment’s prohibition against double jeopardy, and
4. that past crimes should not have been used against Mr. Akre.
Finally, Mr. Akre admits that two of his claims, a Miranda claim and
a Brady claim, were not timely raised. But he argues that they should be
considered as part of his claim involving ineffective assistance of counsel.
* * *
Eight of the habeas claims were indisputably time-barred.
we have repeatedly denied certificates of appealability based on arguments for equitable tolling predicated on mental illness. See, e.g., Rantz v. Hartley, 577 F. App’x 805, 810-11 (10th Cir. 2014); Maynard v. Chrisman, 568 F. App’x 625, 627 (10th Cir. 2014) (unpublished); Rawlins v. Newton- Embry, 352 F. App’x 273, 275-76 (10th Cir. 2009) (unpublished).
4 3. The district court did not need to reach the merits of Mr. Akre’s claims after finding them time-barred.
Mr. Akre also contends that the district court should have considered
his habeas claims “individually, separately, and on the merits.” Appellant’s
Opening Br. at 12. It was unnecessary for the district court to address the
merits of the time-barred claims. See Slack v. McDaniel, 529 U.S. 473, 484
(2000) (“Where a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further.”).
4. A writ of habeas corpus was unavailable as a remedy on Mr. Akre’s challenge to the application of the Oklahoma Sex Offender Registration Act.
Mr. Akre’s second habeas claim challenged the application of certain
provisions of the Oklahoma Sex Offender Registration Act after his release
from prison. The district court rejected this claim, reasoning that it was not
redressable in habeas proceedings. This ruling is not debatable.
A writ of habeas corpus provides a remedy to challenge a conviction
or sentence. But Mr. Akre’s second habeas claim does not address the
conviction or sentence. Instead, this claim challenges the necessity of
complying with the Oklahoma Sex Offender Registration Act after he
finishes serving his sentence. As the district court explained, habeas
5 proceedings are not available to challenge this collateral consequence of
his conviction.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 4, 2018
Elisabeth A. Shumaker Clerk of Court DANIEL ROBERT AKRE,
Petitioner - Appellant, No. 17-6177 v. (D.C. No. 5:16-CV-00665-R) (W.D. Okla.) JOE M. ALLBAUGH,
Respondent - Appellee.
ORDER *
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
In 2008, Mr. Daniel Akre entered an Alford plea in Oklahoma state
court on four counts of lewd molestation and one count of indecent
proposal of a minor. Through this plea, Mr. Akre protested his innocence
but acknowledged that the State’s evidence would be sufficient to convict.
State ex rel. Okla. Bar Ass’n v. Murdock, 236 P.3d 107, 109 n.2 (Okla.
2010).
* This order does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). The trial court accepted the plea and sentenced Mr. Akre to 25 years’
imprisonment, with half of the sentence suspended. After unsuccessfully
challenging the conviction in state-court proceedings, Mr. Akre filed a
federal habeas petition in June 2016. The federal district court rejected Mr.
Akre’s
habeas claims and
separate claim for an injunction against the state’s enforcement of some provisions of the suspended sentence.
Mr. Akre seeks a certificate of appealability so that he can appeal the
district court’s order dismissing his habeas petition and claim for
injunctive relief. In seeking the certificate, Mr. Akre raises five issues. We
reject each of Mr. Akre’s arguments and deny the certificate of
appealability.
1. Standard for a Certificate of Appealability
To appeal, Mr. Akre needs a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(A). We can issue this certificate only if Mr. Akre shows that
the district court’s ruling was debatable or wrong. See Laurson v. Leyba,
507 F.3d 1230, 1231-32 (10th Cir. 2007).
2. The district court correctly held that eight of the habeas claims were time-barred.
The district court rejected eight of Mr. Akre’s nine habeas claims
because Mr. Akre had not filed the habeas petition within the one-year
period of limitations. This ruling was correct. 2 Mr. Akre entered his plea on February 1, 2008, and was sentenced on
March 26, 2008. He had ten days to seek withdrawal of his plea. Okla. Ct.
Crim. App. R. 4.2(A); see Gordon v. Franklin, 456 F. App’x 739, 742
(10th Cir. 2012) (unpublished) (applying Rule 4.2(A) to an Alford plea
entered in Oklahoma state court). Because he failed to seek withdrawal of
his plea within ten days, the conviction became final on April 8, 2008. See
Gordon, 456 F. App’x at 742.
Mr. Akre then had one year to file a habeas petition in federal court.
28 U.S.C. § 2244(d)(1)(A). Instead, he waited over eight years before
filing a federal habeas petition. As a result, the habeas claims were
untimely.
Mr. Akre makes various arguments regarding the eight habeas claims.
For example, on his claim involving competency, he asserts that the
limitations period did not start until he was given a competency hearing.
But Mr. Akre provides no support for this assertion. 1
1 Mr. Akre has not argued, either in district court or our court, that his alleged incompetency would support equitable tolling. Cf. Biester v. Midwest Health Servs., 77 F.3d 1264, 1268 (10th Cir. 1996) (“[T]he Tenth Circuit has never held that mental incapacity tolls the statute of limitations.”); Ebrahimi v. E.F. Hutton & Co., 852 F.2d 516, (10th Cir. 1988) (“We are reluctant to expand the equitable tolling doctrine to include mental incapacity or illness where no court has previously recognized such a tolling factor.”); Rantz v. Hartley, 577 F. App’x 805, 810 (10th Cir. 2014) (unpublished) (“‘[T]his circuit has yet to apply equitable tolling on the basis of mental incapacity.’” (quoting McCall v. Wyo. Att’y Gen, 339 F. App’x 848, 850 (10th Cir. 2009) (unpublished))). We note, however, that
3 In addition, Mr. Akre argues that his claim of ineffective assistance
of counsel can proceed because the Oklahoma Court of Criminal Appeals
addressed the merits in post-conviction proceedings. But this argument
does not bear on the timeliness of the claim.
Mr. Akre does not present any arguments about timeliness for four of
his claims:
1. that he was not informed of Oklahoma’s rule requiring him to serve at least 85% of his sentence before parole,
2. that the District Attorney failed to carry out promises made in Mr. Akre’s plea bargain,
3. that the prosecution acted maliciously and violated the Fifth Amendment’s prohibition against double jeopardy, and
4. that past crimes should not have been used against Mr. Akre.
Finally, Mr. Akre admits that two of his claims, a Miranda claim and
a Brady claim, were not timely raised. But he argues that they should be
considered as part of his claim involving ineffective assistance of counsel.
* * *
Eight of the habeas claims were indisputably time-barred.
we have repeatedly denied certificates of appealability based on arguments for equitable tolling predicated on mental illness. See, e.g., Rantz v. Hartley, 577 F. App’x 805, 810-11 (10th Cir. 2014); Maynard v. Chrisman, 568 F. App’x 625, 627 (10th Cir. 2014) (unpublished); Rawlins v. Newton- Embry, 352 F. App’x 273, 275-76 (10th Cir. 2009) (unpublished).
4 3. The district court did not need to reach the merits of Mr. Akre’s claims after finding them time-barred.
Mr. Akre also contends that the district court should have considered
his habeas claims “individually, separately, and on the merits.” Appellant’s
Opening Br. at 12. It was unnecessary for the district court to address the
merits of the time-barred claims. See Slack v. McDaniel, 529 U.S. 473, 484
(2000) (“Where a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further.”).
4. A writ of habeas corpus was unavailable as a remedy on Mr. Akre’s challenge to the application of the Oklahoma Sex Offender Registration Act.
Mr. Akre’s second habeas claim challenged the application of certain
provisions of the Oklahoma Sex Offender Registration Act after his release
from prison. The district court rejected this claim, reasoning that it was not
redressable in habeas proceedings. This ruling is not debatable.
A writ of habeas corpus provides a remedy to challenge a conviction
or sentence. But Mr. Akre’s second habeas claim does not address the
conviction or sentence. Instead, this claim challenges the necessity of
complying with the Oklahoma Sex Offender Registration Act after he
finishes serving his sentence. As the district court explained, habeas
5 proceedings are not available to challenge this collateral consequence of
his conviction.
5. Mr. Akre is not entitled to an injunction barring the Oklahoma Department of Corrections from subjecting him to polygraphs.
Mr. Akre must take regular polygraph tests as part of his suspended
sentence. In district court, he challenged this condition. But the district
judge could not discern what Mr. Akre wanted, noting that it was not clear
if Mr. Akre was seeking an injunction against the Oklahoma Sex Offender
Registration Act’s supervisory conditions or the particular conditions of
his suspended sentence. The distinction matters, as the district judge noted,
because Mr. Akre’s request for injunctive relief must seek the same relief
as his habeas petition: release from custody. See Hicks v. Jones, 332 F.
App’x 505, 508 (10th Cir. 2009) (unpublished) (denying injunctive relief
to a prisoner who sought relief on “‘a matter lying wholly outside the
issues in [his] suit’” (quoting De Beers Consol. Mines v. United States, 325
U.S. 212, 220 (1945))).
Mr. Akre clarified this ambiguity in his appellate brief, stating that
he had intended to challenge the conditions of his suspended sentence. This
clarification is fatal because a challenge to his suspended sentence is time-
barred. See Gist v. Evans, 587 F. App’x 490, 492 (10th Cir. 2014)
(unpublished) (holding that the one-year limitations period under § 2244(d)
began running with the inclusion of a suspended sentence as part of the
6 sentence). This suspended sentence was part of the 2008 criminal
judgment, and his motion for an injunction was not filed until 2016. In
light of Mr. Akre’s clarification, the district court was indisputably right to
deny the motion for an injunction.
6. Mr. Akre is entitled to proceed in forma pauperis.
Mr. Akre requests not only a certificate of appealability but also
leave to proceed in forma pauperis. We grant this request.
7. Conclusion
Mr. Akre’s habeas claims are not reasonably debatable. Eight of the
claims are time-barred, and the ninth claim is not redressable in habeas
proceedings. We therefore deny a certificate of appealability and dismiss
the appeal; however, we grant leave to proceed in forma pauperis.
Entered for the Court
Robert E. Bacharach Circuit Judge