F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 14 1999 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
BENITO JEROME BOWIE,
Petitioner-Appellant,
v. No. 99-6176 (W.D. Okla.) GARY GIBSON; DREW EDMONDSON, (D.Ct. No. CIV-98-1447-R) Attorney General of the State of Oklahoma,
Respondents-Appellees. ____________________________
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and LUCERO, 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* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. Appellant Benito Jerome Bowie, an Oklahoma state inmate appearing pro
se, appeals the district court’s decision dismissing, as untimely, his habeas corpus
petition filed pursuant to 28 U.S.C. § 2254. We deny Mr. Bowie's request for a
certificate of appealability and dismiss his appeal. 1
On January 30, 1987, a jury convicted Mr. Bowie of first degree murder
and the trial court sentenced him to life in prison. The Oklahoma Court of
Criminal Appeals affirmed Mr. Bowie’s conviction July 15, 1991. On October
21, 1991, the state court formally denied Mr. Bowie’s petition for rehearing. Mr.
Bowie did not seek state post-conviction relief until April 1, 1998. The state
court denied his post-conviction application June 19, 1998, and the Oklahoma
Court of Criminal Appeals affirmed September 22, 1998.
Mr. Bowie filed his federal habeas petition October 16, 1998, claiming
multiple errors by the state trial court. The federal district court assigned the
matter to a magistrate judge who recommended dismissing the petition as time-
1 The district court made no ruling on Mr. Bowie’s request for a certificate of appealability. Under our Emergency General Order of October 1, 1996, we deem the district court’s failure to issue a certificate of appealability within thirty days after filing of the notice of appeal as a denial of a certificate. See United States v. Riddick, 104 F.3d 1239, 1241 n.2 (10th Cir. 1997), overruled on other grounds by United States v. Kunzman, 125 F.3d 1363,1364 n.2 (10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998).
-2- barred. Specifically, the magistrate judge determined that because Mr. Bowie’s
conviction became final before the effective date of the Antiterrorism and
Effective Death Penalty Act, the limitation period for filing Mr. Bowie’s federal
habeas petition did not begin to run until April 24, 1996, and tolled one year later,
on April 23, 1997. The magistrate judge then determined the tolling provisions of
28 U.S.C. § 2244(d)(2) did not apply because Mr. Bowie filed his state post-
conviction application after the limitation period ended. Because Mr. Bowie did
not file his federal habeas petition until October 16, 1998 -- one and one-half
years after the limitation period -- the magistrate judge recommended the petition
be dismissed as untimely.
The magistrate judge also carefully considered Mr. Bowie’s arguments for
equitably tolling the limitation period. In so doing, the magistrate judge rejected
Mr. Bowie’s contention that his two-year incarceration at the Oklahoma County
Detention Center, which contains no law library, somehow prevented him from
timely filing his petition. The magistrate judge determined that Mr. Bowie: (1)
failed to show he diligently pursued his federal claims while incarcerated for four
years at another facility; and (2) failed to show how the lack of a law library
affected his ability to timely file his petition, as required under Miller v. Marr,
141 F.3d 976, 978 (10th Cir.), cert. denied, 119 S. Ct. 210 (1998). The magistrate
-3- judge also rejected Mr. Bowie’s contention that both counsel retained by him
failed to timely file his petition. The magistrate judge first noted the evidence
presented did not establish actual retention of one attorney and then concluded
that even if Mr. Bowie retained both counsel and they failed to file his petition,
Mr. Bowie nevertheless had one year after he allegedly dismissed his last attorney
to timely file his petition. In any event, Mr. Bowie could not “sit idly by ...
knowing that no attorney was pursuing his case and still claim that he has
diligently pursued his claims.” Finally, the magistrate judge determined Mr.
Bowie’s claim of actual innocence lacked merit because the affidavits on which
he based his claim, and which allege that four prosecution witnesses offered false
testimony against him, lacked credibility, and even if true, were insufficient “to
show by a preponderance of the evidence that no reasonable juror would have
found him guilty of the crime charged.”
In a thorough fifteen-page order, the district court adopted the magistrate
judge’s recommendation and dismissed Mr. Bowie’s habeas petition as untimely.
After examining the pleadings and affidavits filed by Mr. Bowie, the magistrate’s
recommendation, and the credibility and other findings of the state court, the
district court concluded that no circumstances warranted equitable tolling of the
limitation period. Specifically, with respect to Mr. Bowie’s claim of innocence,
-4- the district court determined no evidentiary hearing was necessary because the
state court performed a full and fair hearing on the credibility of the affidavits in
its post-conviction proceeding. In addition, the district court concluded the
affidavits on which Mr. Bowie relied lacked credibility because they: (1)
recanted previous trial testimony given under oath and subject to cross-
examination; (2) contained hearsay statements of individuals who did not testify
under oath as to the falsity of their prior testimony; (3) were deemed incredible by
the trial court which reviewed not only the affidavits, but transcripts of the sworn
testimony given before it in the state proceeding; and (4) were insufficient to
show by a preponderance of the evidence that no reasonable juror would have
found him guilty of the crime charged, especially in light of another inculpatory
witness who did not recant his trial testimony.
On appeal, Mr. Bowie renews his request to equitably toll the limitation
period because: (1) the Oklahoma county jail lacked a law library, thereby
preventing him access to legal materials and the courts; and (2) both of his
counsel failed to file his petition. While Mr. Bowie does not expressly renew his
claim of actual innocence, he nevertheless attaches the affidavits supporting that
claim.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 14 1999 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
BENITO JEROME BOWIE,
Petitioner-Appellant,
v. No. 99-6176 (W.D. Okla.) GARY GIBSON; DREW EDMONDSON, (D.Ct. No. CIV-98-1447-R) Attorney General of the State of Oklahoma,
Respondents-Appellees. ____________________________
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and LUCERO, 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. Appellant Benito Jerome Bowie, an Oklahoma state inmate appearing pro
se, appeals the district court’s decision dismissing, as untimely, his habeas corpus
petition filed pursuant to 28 U.S.C. § 2254. We deny Mr. Bowie's request for a
certificate of appealability and dismiss his appeal. 1
On January 30, 1987, a jury convicted Mr. Bowie of first degree murder
and the trial court sentenced him to life in prison. The Oklahoma Court of
Criminal Appeals affirmed Mr. Bowie’s conviction July 15, 1991. On October
21, 1991, the state court formally denied Mr. Bowie’s petition for rehearing. Mr.
Bowie did not seek state post-conviction relief until April 1, 1998. The state
court denied his post-conviction application June 19, 1998, and the Oklahoma
Court of Criminal Appeals affirmed September 22, 1998.
Mr. Bowie filed his federal habeas petition October 16, 1998, claiming
multiple errors by the state trial court. The federal district court assigned the
matter to a magistrate judge who recommended dismissing the petition as time-
1 The district court made no ruling on Mr. Bowie’s request for a certificate of appealability. Under our Emergency General Order of October 1, 1996, we deem the district court’s failure to issue a certificate of appealability within thirty days after filing of the notice of appeal as a denial of a certificate. See United States v. Riddick, 104 F.3d 1239, 1241 n.2 (10th Cir. 1997), overruled on other grounds by United States v. Kunzman, 125 F.3d 1363,1364 n.2 (10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998).
-2- barred. Specifically, the magistrate judge determined that because Mr. Bowie’s
conviction became final before the effective date of the Antiterrorism and
Effective Death Penalty Act, the limitation period for filing Mr. Bowie’s federal
habeas petition did not begin to run until April 24, 1996, and tolled one year later,
on April 23, 1997. The magistrate judge then determined the tolling provisions of
28 U.S.C. § 2244(d)(2) did not apply because Mr. Bowie filed his state post-
conviction application after the limitation period ended. Because Mr. Bowie did
not file his federal habeas petition until October 16, 1998 -- one and one-half
years after the limitation period -- the magistrate judge recommended the petition
be dismissed as untimely.
The magistrate judge also carefully considered Mr. Bowie’s arguments for
equitably tolling the limitation period. In so doing, the magistrate judge rejected
Mr. Bowie’s contention that his two-year incarceration at the Oklahoma County
Detention Center, which contains no law library, somehow prevented him from
timely filing his petition. The magistrate judge determined that Mr. Bowie: (1)
failed to show he diligently pursued his federal claims while incarcerated for four
years at another facility; and (2) failed to show how the lack of a law library
affected his ability to timely file his petition, as required under Miller v. Marr,
141 F.3d 976, 978 (10th Cir.), cert. denied, 119 S. Ct. 210 (1998). The magistrate
-3- judge also rejected Mr. Bowie’s contention that both counsel retained by him
failed to timely file his petition. The magistrate judge first noted the evidence
presented did not establish actual retention of one attorney and then concluded
that even if Mr. Bowie retained both counsel and they failed to file his petition,
Mr. Bowie nevertheless had one year after he allegedly dismissed his last attorney
to timely file his petition. In any event, Mr. Bowie could not “sit idly by ...
knowing that no attorney was pursuing his case and still claim that he has
diligently pursued his claims.” Finally, the magistrate judge determined Mr.
Bowie’s claim of actual innocence lacked merit because the affidavits on which
he based his claim, and which allege that four prosecution witnesses offered false
testimony against him, lacked credibility, and even if true, were insufficient “to
show by a preponderance of the evidence that no reasonable juror would have
found him guilty of the crime charged.”
In a thorough fifteen-page order, the district court adopted the magistrate
judge’s recommendation and dismissed Mr. Bowie’s habeas petition as untimely.
After examining the pleadings and affidavits filed by Mr. Bowie, the magistrate’s
recommendation, and the credibility and other findings of the state court, the
district court concluded that no circumstances warranted equitable tolling of the
limitation period. Specifically, with respect to Mr. Bowie’s claim of innocence,
-4- the district court determined no evidentiary hearing was necessary because the
state court performed a full and fair hearing on the credibility of the affidavits in
its post-conviction proceeding. In addition, the district court concluded the
affidavits on which Mr. Bowie relied lacked credibility because they: (1)
recanted previous trial testimony given under oath and subject to cross-
examination; (2) contained hearsay statements of individuals who did not testify
under oath as to the falsity of their prior testimony; (3) were deemed incredible by
the trial court which reviewed not only the affidavits, but transcripts of the sworn
testimony given before it in the state proceeding; and (4) were insufficient to
show by a preponderance of the evidence that no reasonable juror would have
found him guilty of the crime charged, especially in light of another inculpatory
witness who did not recant his trial testimony.
On appeal, Mr. Bowie renews his request to equitably toll the limitation
period because: (1) the Oklahoma county jail lacked a law library, thereby
preventing him access to legal materials and the courts; and (2) both of his
counsel failed to file his petition. While Mr. Bowie does not expressly renew his
claim of actual innocence, he nevertheless attaches the affidavits supporting that
claim. Finally, Mr. Bowie raises the same issues presented in his petition
-5- concerning the merits of his case and alleging errors by the state court during his
trial.
We review the district court’s factual findings for clear error and its legal
bases for dismissal of Mr. Bowie’s § 2254 petition de novo. See Rogers v.
Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999). In applying these standards, we
construe Mr. Bowie’s pro se pleadings liberally, holding them to a less stringent
standard than formal pleadings drafted by lawyers. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
We begin by noting the magistrate judge correctly determined the limitation
period for filing Mr. Bowie’s federal habeas petition did not begin to run until
April 24, 1996, and tolled one year later, on April 23, 1997. See 28 U.S.C.
§ 2244(d)(1); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998). We
further agree the tolling provisions of 28 U.S.C. § 2244(d)(2) clearly do not apply
because Mr. Bowie filed his state post-conviction application after this limitation
period ended. See 28 U.S.C. § 2244(d)(2). (In accord with Allen v. Oklahoma,
No. 99-6033, 1999 WL 492804, at *1 (10th Cir. July 13, 1999) (unpublished
opinion); Hansell v. LeMaster, No. 98-2207, 1999 WL 258335, at *2 (10th Cir.
April 30, 1999) (unpublished opinion).) Because Mr. Bowie did not file his
-6- federal habeas petition until one and one-half years after the limitation period, the
district court properly dismissed the petition as untimely.
As to Mr. Bowie’s request for equitable tolling of the statutory limitation
period, we agree, for substantially the same reasons set forth in the district court’s
Order of April 13, 1999, and the magistrate judge’s Report and Recommendation
of January 20, 1999, that tolling is inappropriate under the circumstances of this
case. Finding his petition untimely, we decline to address the merits of the
remaining issues raised in Mr. Bowie’s petition and on appeal.
Thus, under the circumstances presented and after a careful review of the
record, we determine Mr. Bowie fails to make a substantial showing of the denial
of a constitutional right necessary for issuing a certificate of appealability. 28
U.S.C. § 2253(c)(2). Accordingly, we deny Mr. Bowie’s request for a certificate
of appealability and DISMISS the appeal.
Entered by the Court:
WADE BRORBY United States Circuit Judge
-7-