UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk
March 16, 2000
TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT
RE: 99-6328, Carter v. Hines Filed on March 14, 2000
There is a clerical error on page one of the order and judgment filed in this appeal. The panel of judges who decided this appeal is corrected to read: Brorby, Kelly, and Murphy. A corrected copy of the order and judgment is attached.
Sincerely,
Patrick Fisher, Clerk of Court
By: Keith Nelson Deputy Clerk
encl. F I L E D United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS MAR 14 2000
TENTH CIRCUIT PATRICK FISHER Clerk __________________________
MICHAEL S. CARTER,
Petitioner-Appellant,
v. No. 99-6328 (W.D. Okla.) REGINALD HINES, (D.Ct. No. 99-CV-39)
Respondent-Appellee. ____________________________
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.
Appellant Michael S. Carter, a state pro se inmate, appeals the district
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. court’s decision dismissing his habeas corpus petition filed pursuant to 28 U.S.C.
§2254 as time-barred. The district court also denied Mr. Carter’s request for a
certificate of appealability. We deny Mr. Carter’s request for a certificate of
appealability and his motion to proceed in forma paurperis, and dismiss his
appeal.
On June 20, 1997, Mr. Carter received a sentence of five years
imprisonment and a fine of $5,000 for uttering two or more bogus checks
exceeding $500. Under Oklahoma Court of Criminal Appeals Rule 2.5, he had
ten days after entry of his judgment and sentence – or until June 30, 1997 – to file
a direct appeal. He did not file his appeal with the state district court until July
29, 1997 – well beyond the time limit, thereby waiving his right to an appeal. On
May 22, 1998 he filed a state petition for a writ of habeas corpus, which the state
district court denied on September 25, 1998. He did not seek certiorari review in
the state court.
On December 14, 1998, Mr. Carter filed his federal habeas petition,
claiming ineffective assistance. The district court referred the matter to a
magistrate judge who recommended dismissal of the petition as untimely. The
magistrate judge determined the one-year limitation period for filing Mr. Carter’s
-2- federal petition began ten days after his sentence – on June, 30,1997, so the one-
year limitation period ended June 30, 1998. The magistrate judge next determined
the one-year limitation period was not tolled until May 22, 1998, when Mr. Carter
filed his state habeas petition. Thus, only thirty-nine days remained of the one-
year limitation period when Mr. Carter’s state petition tolled it. When the state
court denied his petition on September 25, 1998, Mr. Carter had only thirty-nine
days–or until November 3, 1998, in which to file his federal petition. Because he
did not file his federal petition until December 14, 1998, the magistrate judge
found it time-barred.
In addition, the magistrate judge noted Mr. Carter’s one-year limitation
period was not tolled by his untimely July 29, 1997 filing of his direct state
appeal, even though he claimed he placed the notice of appeal in a jailer’s hand
on June 23, 1997 – the day he hand-wrote the notice. The magistrate judge
pointed out the Oklahoma Court of Criminal Appeals has determined the
“mailbox” rule does not apply to appeals in state criminal matters. Finally, the
magistrate judge determined Mr. Carter did not allege innocence, incompetence,
or any other extraordinary circumstances warranting equitable tolling. After
reviewing Mr. Carter’s objections to the magistrate judge’s recommendations, the
district court adopted the magistrate judge’s Report and Recommendations in its
-3- entirety and dismissed the petition as untimely.
On appeal, Mr. Carter argues the merits of his ineffective assistance of
counsel claim. In addition, apparently in response to his untimely filing of his
federal petition, Mr. Carter makes the statement his time for appeal “does not
commence to run until [he] has been advised of his right to appeal and the
effective assistance of counsel has been afforded.” He also makes the statement
that “a convicted, confined person may collaterally attack his judgement of
sentence if he has not been afforded the assistance of counsel concerning his right
to appeal.” Because Mr. Carter timely filed this appeal, we can only assume this
statement concerns his failure to timely file his state direct appeal.
We review the district court’s factual findings for clear error and its legal
basis for dismissal of Mr. Carter’s §2254 petition de novo. Rogers v. Gibson, 173
F.3d 1278, 1282 (10th Cir. 1999), cert. denied, 120 S. Ct. 944 (2000). In
applying these standards, we construe Mr. Carter’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).
With these standards in mind, we begin by reviewing the district court
-4- determination concerning the untimeliness of Mr. Carter’s § 2254 petition. We
find no error in the district court’s calculations on when Mr. Carter’s petition
became due, and therefore, agree Mr. Carter’s petition is untimely filed.
As to Mr. Carter’s statements concerning his right to counsel on direct
appeal, he seems to be articulating a statement of his rights rather than asserting a
denial of those rights. 1 We acknowledge a defendant must be informed of his
right to file a direct appeal, has the constitutional right to assistance of counsel in
his first appeal, and can waive his right to counsel and appeal pro se so long as
the waiver is voluntary, knowing and intelligent. See Baker v. Kaiser, 929 F.2d
1495, 1498, 1500 (10th Cir. 1991); Jewell v. Tulsa County, 450 P.2d 833, 835
(Okla. Crim. App. 1969). However, we have examined the record and find
nothing to show, on appeal or otherwise, Mr. Carter has ever alleged deprivation
of his direct appeal rights. Specifically, Mr. Carter has never alleged the court
failed to advise him of his appeal rights, 2 or that he asked for, or was refused,
1 In so doing, we note we generally do not consider an issue not passed on below, see Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir.
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UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk
March 16, 2000
TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT
RE: 99-6328, Carter v. Hines Filed on March 14, 2000
There is a clerical error on page one of the order and judgment filed in this appeal. The panel of judges who decided this appeal is corrected to read: Brorby, Kelly, and Murphy. A corrected copy of the order and judgment is attached.
Sincerely,
Patrick Fisher, Clerk of Court
By: Keith Nelson Deputy Clerk
encl. F I L E D United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS MAR 14 2000
TENTH CIRCUIT PATRICK FISHER Clerk __________________________
MICHAEL S. CARTER,
Petitioner-Appellant,
v. No. 99-6328 (W.D. Okla.) REGINALD HINES, (D.Ct. No. 99-CV-39)
Respondent-Appellee. ____________________________
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.
Appellant Michael S. Carter, a state pro se inmate, appeals the district
* 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. court’s decision dismissing his habeas corpus petition filed pursuant to 28 U.S.C.
§2254 as time-barred. The district court also denied Mr. Carter’s request for a
certificate of appealability. We deny Mr. Carter’s request for a certificate of
appealability and his motion to proceed in forma paurperis, and dismiss his
appeal.
On June 20, 1997, Mr. Carter received a sentence of five years
imprisonment and a fine of $5,000 for uttering two or more bogus checks
exceeding $500. Under Oklahoma Court of Criminal Appeals Rule 2.5, he had
ten days after entry of his judgment and sentence – or until June 30, 1997 – to file
a direct appeal. He did not file his appeal with the state district court until July
29, 1997 – well beyond the time limit, thereby waiving his right to an appeal. On
May 22, 1998 he filed a state petition for a writ of habeas corpus, which the state
district court denied on September 25, 1998. He did not seek certiorari review in
the state court.
On December 14, 1998, Mr. Carter filed his federal habeas petition,
claiming ineffective assistance. The district court referred the matter to a
magistrate judge who recommended dismissal of the petition as untimely. The
magistrate judge determined the one-year limitation period for filing Mr. Carter’s
-2- federal petition began ten days after his sentence – on June, 30,1997, so the one-
year limitation period ended June 30, 1998. The magistrate judge next determined
the one-year limitation period was not tolled until May 22, 1998, when Mr. Carter
filed his state habeas petition. Thus, only thirty-nine days remained of the one-
year limitation period when Mr. Carter’s state petition tolled it. When the state
court denied his petition on September 25, 1998, Mr. Carter had only thirty-nine
days–or until November 3, 1998, in which to file his federal petition. Because he
did not file his federal petition until December 14, 1998, the magistrate judge
found it time-barred.
In addition, the magistrate judge noted Mr. Carter’s one-year limitation
period was not tolled by his untimely July 29, 1997 filing of his direct state
appeal, even though he claimed he placed the notice of appeal in a jailer’s hand
on June 23, 1997 – the day he hand-wrote the notice. The magistrate judge
pointed out the Oklahoma Court of Criminal Appeals has determined the
“mailbox” rule does not apply to appeals in state criminal matters. Finally, the
magistrate judge determined Mr. Carter did not allege innocence, incompetence,
or any other extraordinary circumstances warranting equitable tolling. After
reviewing Mr. Carter’s objections to the magistrate judge’s recommendations, the
district court adopted the magistrate judge’s Report and Recommendations in its
-3- entirety and dismissed the petition as untimely.
On appeal, Mr. Carter argues the merits of his ineffective assistance of
counsel claim. In addition, apparently in response to his untimely filing of his
federal petition, Mr. Carter makes the statement his time for appeal “does not
commence to run until [he] has been advised of his right to appeal and the
effective assistance of counsel has been afforded.” He also makes the statement
that “a convicted, confined person may collaterally attack his judgement of
sentence if he has not been afforded the assistance of counsel concerning his right
to appeal.” Because Mr. Carter timely filed this appeal, we can only assume this
statement concerns his failure to timely file his state direct appeal.
We review the district court’s factual findings for clear error and its legal
basis for dismissal of Mr. Carter’s §2254 petition de novo. Rogers v. Gibson, 173
F.3d 1278, 1282 (10th Cir. 1999), cert. denied, 120 S. Ct. 944 (2000). In
applying these standards, we construe Mr. Carter’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).
With these standards in mind, we begin by reviewing the district court
-4- determination concerning the untimeliness of Mr. Carter’s § 2254 petition. We
find no error in the district court’s calculations on when Mr. Carter’s petition
became due, and therefore, agree Mr. Carter’s petition is untimely filed.
As to Mr. Carter’s statements concerning his right to counsel on direct
appeal, he seems to be articulating a statement of his rights rather than asserting a
denial of those rights. 1 We acknowledge a defendant must be informed of his
right to file a direct appeal, has the constitutional right to assistance of counsel in
his first appeal, and can waive his right to counsel and appeal pro se so long as
the waiver is voluntary, knowing and intelligent. See Baker v. Kaiser, 929 F.2d
1495, 1498, 1500 (10th Cir. 1991); Jewell v. Tulsa County, 450 P.2d 833, 835
(Okla. Crim. App. 1969). However, we have examined the record and find
nothing to show, on appeal or otherwise, Mr. Carter has ever alleged deprivation
of his direct appeal rights. Specifically, Mr. Carter has never alleged the court
failed to advise him of his appeal rights, 2 or that he asked for, or was refused,
1 In so doing, we note we generally do not consider an issue not passed on below, see Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992), but make an exception in this case because his failure to timely file his state appeal may, in part, affect the tolling of the one-year limitation period to file his federal petition.
2 The record does show the trial court advised Mr. Carter of his right to appeal to the court of Criminal appeals, the necessary steps for perfecting an appeal, and that if he desired to appeal and could not afford counsel and a transcript, the same would be furnished by the State.
-5- assistance of counsel to help him with his direct appeal. Instead, the record
shows Mr. Carter himself prepared his pro se notice of appeal on June 23, 1997 –
seven days before it was due. Other than asserting the “mailbox rule” as
discussed by the magistrate judge, Mr. Carter has not shown why the same notice
of appeal was filed over one month later on July 29, 1997. While it is apparent he
filed his notice of appeal pro se, he fails to allege he did not waive his right to
counsel or that he involuntarily, unknowingly and unintelligently waived that
right. Under these circumstances, Mr. Carter’s summary statements, simply
articulating his appeal rights, are insufficient to equitably toll the one-year
limitation period for filing his federal petition.
In order to obtain a certificate of appealability, Mr. Carter must make a
substantial showing of the denial of a constitutional right as required by 28 U.S.C.
§ 2253(c)(2). He fails to do so.
For these and substantially the same reasons articulated in the magistrate
judge’s May 13, 1999 Report and Recommendation, and the district court’s July
29, 1999 Order, we deny Mr. Carter’s request for a certificate of appealability and
-6- to proceed in forma pauperis, and DISMISS his appeal.
Entered by the Court:
WADE BRORBY United States Circuit Judge
-7-