Derrick Steilman v. Reginald Michael

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2021
• Docket: 20-35103
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DERRICK E. STEILMAN, No. 20-35103

Petitioner-Appellant, D.C. No. CV 19-38-BU-BMM

v. MEMORANDUM*

REGINALD D. MICHAEL, Director, Montana Department of Corrections; TIMOTHY C. FOX, Montana Attorney General,

Respondents-Appellees.

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Submitted June 10, 2021** Seattle, Washington

Before: GILMAN***, GOULD, and MILLER, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. This case involves Derrick E. Steilman’s petition for habeas relief under 28

U.S.C. § 2254. Steilman filed a § 2254 petition challenging the legality of his

110-year-sentence without the possibility of parole for a Montana homicide that he

committed when he was 17 years old. The district court dismissed the petition as

untimely. We agree with the district court that Steilman’s petition was untimely

because he failed to seek relief within one year of the Supreme Court’s decision in

Miller v. Alabama, 567 U.S. 460 (2012), and because he is not entitled to equitable

tolling.

1. Shortly before turning 18, Steilman committed a murder in Butte,

Montana. He pleaded guilty in October 1999.

2. Steilman filed an earlier petition for a writ of habeas corpus in the

Montana Supreme Court in May 2016, wherein he claimed that his sentence was

unconstitutional under the Eighth Amendment because the sentencing judge did

not sufficiently account for his youth per the new rule announced in Miller and

made retroactive in Montgomery v. Louisiana, 577 U.S. 190 (2016). The Montana

Supreme Court held that “[t]he combination of the good-time credit to which

Steilman is eligible and the amount of his sentence that will be discharged while

serving a sentence on a wholly unrelated crime” meant that Steilman’s sentence

was not a de facto life sentence. Steilman v. Michael, 407 P.3d 313, 320 (Mont.

2017); see also Steilman v. Michael, No. CV 19-38-BU-BMM-KLD, 2019 WL

2 20-35103 8017793, at *1 (D. Mont. Nov. 21, 2019), report and recommendation adopted in

part, rejected in part, No. CV 19-38-BU-BMM, 2020 WL 359212 (D. Mont. Jan.

22, 2020) (noting that the Montana Supreme Court “observed that Steilman’s

Montana sentence ran concurrently to a Washington state sentence for a separate

homicide, which would result in Steilman potentially serving [about] 31 years [for]

the Montana homicide.”).

3. We need not decide whether the Montana Supreme Court’s decision on

the merits was contrary to the United States Supreme Court’s decision in Miller

because Steilman’s federal habeas corpus petition was untimely. A state petition

for habeas corpus that is based upon the recognition of a new right must be filed

within one year of “the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review.”

28 U.S.C. § 2244(d)(1)(C). Steilman filed his petition within one year of

Montgomery, but four years after the decision in Miller.

4. Unfortunately for Steilman, the decision that triggers the one-year statute

of limitations is Miller, not Montgomery. Miller recognized a new right under the

Eighth Amendment (the right to an individualized hearing for juvenile offenders

before they can be sentenced to life without parole). 567 U.S. at 480. The

Supreme Court’s recent decision in Jones v. Mississippi, 141 S. Ct. 1307 (2021),

3 20-35103 reiterated that Montgomery simply held “that Miller applied retroactively to cases

on collateral review.” Id. at 1314; see also id. at 1316 (“Montgomery did not

purport to add to Miller’s requirements.”). Furthermore,

in making the [Miller] rule retroactive, the Montgomery Court . . . declined to impose new requirements not already imposed by Miller. As Montgomery itself explained, the Court granted certiorari in that case not to consider whether the rule announced in Miller should be expanded, but rather simply to decide whether Miller’s “holding is retroactive to juvenile offenders whose convictions and sentences were final when Miller was decided.”

Id. at 1317 (quoting Montgomery, 557 U.S. at 194). This leaves Steilman’s

timeliness argument based on Montgomery meritless because, as the Supreme

Court decided in Dodd v. United States, 545 U.S. 353, 357 (2005), the date that a

right is made retroactive is irrelevant for statute-of-limitations purposes.

5. Moreover, Steilman is not entitled to equitable tolling. His argument

turns on an unsubstantiated, vague allegation that “his attorney abandoned him and

gave him improper advice as to how much time he had remaining on the statute of

limitations.” He says that because he was “unable to present his claim to equitable

tolling in the district court[,] . . . [t]his Court should . . . reverse and remand this

case and give Steilman a chance to establish that he is entitled to equitable tolling.”

6. But equitable tolling of the one-year limitations period created by 28

U.S.C. § 2244(d)(1)(C) is rarely granted. Miranda v. Castro, 292 F.3d 1063,

1066–67 (9th Cir. 2002). To benefit from equitable tolling, a petitioner must show

4 20-35103 that he has “pursu[ed] his rights diligently” and was hindered by an “extraordinary

circumstance.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Before the

district court, Steilman proffered several reasons for equitable tolling, including

attorney malpractice, legal ignorance, and insufficient access to Montana legal

materials while incarcerated in the state of Washington. Steilman, 2019 WL

8017793, at *3–4.

7. Although Steilman put forth several reasons before the district court in

attempting to establish an “extraordinary circumstance,” he proffers on appeal only

that his attorney misadvised and “abandoned him.” But Steilman provides no

evidence to substantiate his argument, and this single reason does not constitute an

“extraordinary circumstance.” See Frye v. Hickman, 273 F.3d 1144, 1145–46 (9th

Cir. 2001) (holding that counsel’s general negligence did not warrant equitable

tolling); see also Ford v. Pliler, 590 F.3d 782, 786 (9th Cir. 2009) (noting that the

petitioner had given the lower court no evidence that an “attorney’s conduct had

made it impossible . . . to file a timely federal habeas petition”). In any event, the

attorney misconduct that Steilman alleges apparently occurred after the statute of

limitations had already lapsed, so it could not change the result in this case. See

Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).

AFFIRMED.

5 20-35103