Baker v. Saffle

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 14, 2000
• Docket: 00-6022
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 14 2000 TENTH CIRCUIT PATRICK FISHER Clerk

EVERET L. BAKER,

Petitioner-Appellant,

v. No. 00-6022 (W. District of Oklahoma) JAMES S. SAFFLE; TWYLA (D.C. No. 99-CV-1022-L) SNIDER, Warden; OKLAHOMA DEPARTMENT OF CORRECTIONS,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before BRORBY, KELLY, and MURPHY, Circuit Judges.

After examining the briefs and 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.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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. This case is before the court on Everet Baker’s request for a certificate of

appealability (“COA”). Baker seeks a COA so that he can appeal the district

court’s dismissal with prejudice of his 28 U.S.C. § 2254 habeas corpus petition.

See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a

final order denying relief in a § 2254 proceeding unless the petitioner first obtains

a COA). Baker is entitled to a COA only upon making a “substantial showing of

the denial of a constitutional right.” Id. § 2253(c)(2). Baker can make such a

showing by demonstrating “that 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.” Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000) (quotations

omitted).

The district court dismissed Baker’s petition on the ground that it was not

filed within the one-year statute of limitations set out in 28 U.S.C. § 2244(d).

This court has reviewed the entire record in this case and concludes that Baker is

not entitled to a COA for substantially those reasons set out in the magistrate

judge’s Report and Recommendation dated December 23, 1999, and the district

court Order dated December 29, 1999. In particular, this court agrees with the

district court that Oklahoma’s lack of a statute of limitations controlling when

state post-conviction procedures must begin does not excuse Baker from

-2- complying with the federal habeas corpus statute of limitations set out in

§ 2244(d). We further agree that § 2244(d)’s statute of limitations did not begin

to run anew pursuant to § 2244(d)(1)(C) or (d)(1)(D) when the Oklahoma Court

of Criminal Appeals (“OCCA”) issued its opinion in State v. Campbell, 965 P.2d

991 (Okla. Crim. App. 1998). Section 2244(d)(1)(C) only applies where the

United States Supreme Court recognizes a new constitutional right and makes that

right retroactively applicable to cases on collateral review. The decision of the

OCCA in Campbell applying existing Supreme Court precedent certainly does not

implicate this section. Nor, as noted by the district court, does the decision in

Campbell implicate § 2244(d)(1)(D). The decision in Campbell establishes state

legal precedent; it does not bring to light any new facts relevant to Baker’s habeas

claims.

Because Baker has not made a substantial showing of the denial of a

constitutional right, he is not entitled to a COA. See 28 U.S.C. § 2253(c)(2).

Accordingly, this court DENIES Baker’s request for a COA and DISMISSES the

appeal. Baker’s motion to proceed in forma pauperis is DENIED.

ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge

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