Ameen v. Clayton

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 29, 2020
• Docket: 20-6084
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS September 29, 2020 TENTH CIRCUIT Christopher M. Wolpert Clerk of Court

TODD OLIVER AMEEN,

Petitioner - Appellant, No. 20-6084 (D.C. No. 5:19-CV-00485-PRW) v. (W.D. Okla.) DEON CLAYTON, Interim Warden,

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.

This matter is before the court on Todd Ameen’s request for a certificate of

appealability (“COA”) and for permission to proceed on appeal in forma pauperis.

Ameen seeks a COA so he can appeal the dismissal, on timeliness grounds, of his

28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no

appeal may be taken from a final order denying habeas corpus relief unless the

petitioner first obtains a COA); id. § 2244(d) (setting out a one-year limitations

period as to § 2254 habeas corpus petitions). Because Ameen has not “made a

substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), this

court denies his request for a COA and dismisses this matter. On November 17, 2016, Ameen pleaded guilty, in Oklahoma state court, to

one count of first degree burglary. Ameen’s conviction became final ten days

later, on November 27, 2016, because Ameen did not seek to timely withdraw his

plea or seek a direct appeal to the Oklahoma Court of Criminal Appeals. See

Okla. Stat. tit. 22, Ch.18 App. Rule 4.2; Okla. Stat. tit. 22, § 1051. Pursuant to

28 U.S.C. § 2244(d)(1), the § 2244 limitations period for Ameen to file a § 2254

petition began to run on November 28, 2016, and would normally have expired on

November 28, 2017. See Harris v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th Cir.

2011). In this case, however, the district court assumed, without deciding, that

Ameen was entitled to ninety-four days of statutory tolling, pursuant to 28 U.S.C.

§ 2244(d)(2), while Ameen had pending in state court a motion for judicial review

under Okla. Stat. tit. 22, § 982a. See Randall v. Allbaugh, 662 F. App’x 571, 573

n.3 (10th Cir. 2016) (noting that whether such a motion entitles a petitioner to

statutory tolling is an unresolved question in this circuit); Doby v. Dowling, 632

F. App’x 485, 488 (10th Cir. 2015) (“We can assume that [petitioner’s] limitation

period was tolled while this [§ 982a] motion [for judicial review] was

pending . . . .”). Thus, the limitations period for Ameen to file his § 2254 habeas

petition expired on March 2, 2018. 1

1 Like the district court, this court sees no need to resolve this question. Ameen’s § 2254 petition is untimely even if we assume his Oklahoma state § 982a (continued...)

-2- Ameen filed the instant § 2254 habeas petition on May 28, 2019, almost

fifteen months after the expiration of the limitations period set out in § 2244(d).

The matter was referred to a magistrate judge for initial proceedings. 28 U.S.C.

§ 636(b)(1). In a thorough and well-reasoned Report and Recommendation, the

magistrate judge concluded as follows: (1) Ameen’s attempt to invoke actual

innocence was unavailing because the assertion was really a claim of legal

innocence, rather than factual innocence; (2) Ameen was not entitled to equitable

tolling because, inter alia, he failed to demonstrate he diligently pursued his

rights, see Lawrence v. Florida, 549 U.S. 327, 336 (2007); and (3) the delayed

accrual provision set out in § 2244(d)(1)(D) was not applicable because Ameen

was well aware of the factual basis of his substantive habeas claim at the time he

committed the burglary. In a lengthy order that considered a whole series of

objections and supplements filed by Ameen, the district court adopted the

magistrate judge’s Report and Recommendation and dismissed Ameen’s § 2254

habeas petition as untimely.

Ameen seeks a COA so he can appeal the district court’s dismissal of his

§ 2254 petition. The granting of a COA is a jurisdictional prerequisite to

Ameen’s appeal from the denial of his § 2254 petition. Miller-El v. Cockrell, 537

1 (...continued) motion entitles him to ninety-four days of statutory tolling.

-3- U.S. 322, 336 (2003). To be entitled to a COA, Ameen must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is,

he must demonstrate “reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.” Id.

(quotations omitted). When a district court dismisses a § 2254 petition on

procedural grounds, a petitioner is entitled to a COA only if he shows both that

reasonable jurists would find it debatable whether he had stated a valid

constitutional claim and debatable whether the district court’s procedural ruling

was correct. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). In evaluating

whether Ameen has satisfied his burden, this court undertakes “a preliminary,

though not definitive, consideration of the [legal] framework” applicable to each

of his claims. Miller-El, 537 U.S. at 338. Although Ameen need not demonstrate

his appeal will succeed to be entitled to a COA, he must “prove something more

than the absence of frivolity or the existence of mere good faith.” Id.

Having undertaken a review of Ameen’s appellate filings, the magistrate

judge’s Report and Recommendation, the district court’s order, and the entire

record before this court pursuant to the framework set out by the Supreme Court

in Miller-El, we conclude Ameen is not entitled to a COA. The district court’s

resolution of Ameen’s petition is not reasonably subject to debate. Indeed, in

-4- denying Ameen’s request for a COA, this court sees no need to recapitulate the

cogent analyses set out in both the magistrate judge’s Report and

Recommendation and the district court’s order. Accordingly, this court DENIES

Ameen’s request for a COA and DISMISSES this matter. Ameen’s request to

proceed on appeal in forma pauperis is GRANTED. All other pending motions,

specifically including Ameen’s requests for an evidentiary hearing and for

appointment of counsel are hereby DENIED.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

-5-