Milton v. Allbaugh

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 6, 2017
• Docket: 17-6130
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS December 6, 2017 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court

CHARLIE M. MILTON, JR.,

Petitioner - Appellant,

v. No. 17-6130 (D.C. No. 5:16-CV-01469-F) JOE ALLBAUGH, (W.D. Okla.)

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.

In this appeal, pro se 1 Petitioner-Appellant Charlie M. Milton, Jr., a state

prisoner, seeks a certificate of appealability (“COA”) in order to challenge the

district court’s denial of the habeas petition he brought under 28 U.S.C. § 2254.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is therefore ordered submitted without oral argument. This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with F ED . R. A PP . P. 32.1 and 10 TH C IR . R. 32.1. 1 Because Mr. Milton appears in these proceedings without counsel, we construe his pleadings liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), but stop short of acting as his advocate, see United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). He also seeks to proceed in forma pauperis. Exercising jurisdiction under 28

U.S.C. § 1291, and for the reasons that follow, we deny Mr. Milton’s request for

a COA, dismiss the matter, and deny his application to proceed in forma

pauperis.

I

Mr. Milton was charged in state court in Oklahoma County, Oklahoma with

four drug-related crimes: trafficking in cocaine base; trafficking in cocaine;

possession of drug proceeds; and possession of marijuana, a controlled substance.

On January 24, 2014, Mr. Milton pleaded guilty to two counts of possession of a

controlled substance with intent to distribute, and to the possession of drug

proceeds and marijuana charges. He was then sentenced to a term of thirty years’

imprisonment on the first count, ten years’ imprisonment on the second, and a

five year term and fine for the final two charges. Mr. Milton claimed in his

habeas petition that his sentences are set to run concurrently. Mr. Milton did not

seek to withdraw his plea or file an appeal and his conviction became final ten

days later, on February 3, 2014. On November 5, 2014, Mr. Milton filed a

“Motion to Amend Information on all Counts with A[n] Amend J/S Its been

Newly Discovered” (“Motion to Amend”). Dist. Ct. Doc. 10, Ex. 5, at 1 (Br. in

Supp. of Mot. to Dismiss Time Barred Pet., filed Mar. 1, 2017). An Oklahoma

court denied this motion on March 2, 2015. Mr. Milton filed the habeas petition

that forms the basis of this case on December 23, 2016. See R. at 5 (Pet. for Writ

2 of Habeas Corpus under 28 U.S.C. § 2254, dated Dec. 23, 2016).

Mr. Milton’s habeas petition asks the court “[t]o modify the 30-year

sentence to a 10[-]year sentence or vacate my sentence.” Id. at 18. It asserts five

grounds justifying relief: (1) ineffective assistance of counsel; (2) “an illegal

statute”; (3) “time barred”; (4) “the merits of the case”; and (5) double jeopardy.

Id. at 7. The Oklahoma Attorney General filed a motion to dismiss Mr. Milton’s

habeas petition as time-barred under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), 28 U.S.C. § 2244. The district court granted this

motion, adopting the magistrate judge’s recommendation. The district court also

denied Mr. Milton a COA. See R. at 134 (Dist. Ct. Order, dated Apr. 25, 2017).

Mr. Milton now appeals, seeking a COA to challenge the dismissal of his habeas

petition.

II

A prisoner may not appeal the denial of relief under § 2254 without a COA.

See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also Beylik v. Colorado,

377 F. App’x 796, 797 (10th Cir. 2010) (unpublished) (“The granting of a COA is

a jurisdictional prerequisite to [a prisoner’s] appeal from the denial of his § 2254

action.”). We may issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also

Miller-El, 537 U.S. at 349–50; Dockins v. Hines, 374 F.3d 935, 936 (10th Cir.

2004). Where, as here, the district court denies a habeas petition on procedural

3 grounds such as untimeliness, the applicant faces a “double hurdle.” Coppage v.

McKune, 534 F.3d 1279, 1281 (10th Cir. 2008). “Not only must the applicant

make a substantial showing of the denial of a constitutional right, but he must

also show ‘that jurists of reason would find it debatable . . . whether the district

court was correct in its procedural ruling.’” Id. (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)).

III

Mr. Milton argues that he is entitled to both statutory and equitable tolling

of AEDPA’s limitations period. However, neither form of tolling is appropriate

here.

A

AEDPA imposes a one-year statute of limitations on filing a § 2254 habeas

petition. 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins

running from the date on which the judgment against the state prisoner became

final “by the conclusion of direct review or the expiration of the time for seeking

such review.” 28 U.S.C. § 2244(d)(1)(A); accord Woodward v. Cline, 693 F.3d

1289, 1292 (10th Cir. 2012) (“The most common date that starts the [AEDPA

limitations period] clock is” the date on which the state-court judgment became

final). AEDPA also provides that “[t]he time during which a properly filed

application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted toward any period of

4 limitation under this subsection.” 28 U.S.C. § 2244(d)(2).

The first question that we must address is whether Mr. Milton’s Motion to

Amend qualifies under § 2244(d)(2) for statutory tolling of the one-year

limitations period. The district court found that it did not, and for the reasons

explained below, we conclude that reasonable jurists would not find this decision

debatable.

Our decision in Woodward is instructive. In Woodward, a state prisoner

had filed a motion to allow for DNA testing less than a year before his conviction

became final. See 693 F.3d at 1291. The state courts never ruled on this motion,

and eleven years later, the prisoner filed a habeas petition in federal court. Id.

We held that this petition was untimely under AEDPA, notwithstanding the

unresolved DNA testing motion. Id. at 1292. We determined that the DNA

testing motion was not really one for “collateral review” of the prisoner’s

conviction or sentence, as required for statutory tolling under § 2244(d)(2). Id. at

1293; see 28 U.S.C. § 2244(d)(2) (statutory tolling takes place during the

pendency of “a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment”).

We noted that “‘collateral review’ of a judgment or claim means a judicial

reexamination of a judgment or claim in a proceeding outside of the direct review

process.” Woodward, 693 F.3d at 1293 (quoting Wall v. Kholi, 562 U.S. 545, 553

(2011)). The DNA testing motion “did not call for a judicial reexamination of the

5 judgment imposing [Mr. Woodward’s] sentence,” because it merely “asked that

DNA testing be done on hair samples preserved in [Mr. Woodward’s] case and

that the results be provided to him.” Id. Significantly, we observed that the

motion “contained no request that his conviction or sentence be reexamined.” Id.

In the present case, Mr. Milton’s Motion to Amend states in its entirety:

Now on this Nov 1, day of 2014 this matter comes before the Judge on a Motion to Amend the Information Becauce its been Newly Discoved. That under Terms of Imprisonment Count (2) 30 year to do. Count (3) 10 year to do. Count (4) Fines Only

Dist. Ct. Doc. 10, Ex. 5, at 1(typographical errors in original); accord R. at 120

(R. & R., dated Mar. 31, 2017). Mr. Milton also purported to append to his

motion a “Summary [of] Opinion” of an Oklahoma state court decision; he asked

the court to consider it but offered no explanation regarding the significance of

the decision. Id. at 2. Like Woodward, Mr. Milton’s motion “contained no

request that his conviction or sentence be reexamined,” 693 F.3d at 1293, and

there was no basis from the text of the motion to reasonably infer such a request,

much less what the contours of the request would be.

The magistrate judge found in his recommendation—which the district

court adopted—that the Motion to Amend failed, in any cognizable fashion, to

“call for a judicial reexamination of the judgment” against Mr. Milton. Id. at

1293. As such, the Motion to Amend did not seek collateral review of Mr.

Milton’s sentence, and the statutory tolling of § 2244(d)(2) was never triggered.

6 We conclude that reasonable jurists would not debate the correctness of this

determination.

B

Mr. Milton also suggests that he is eligible for equitable tolling, arguing

that he is incarcerated at a facility that does not have “an adequate law library.”

Aplt.’s Br. at 7. However, we do not believe that reasonable jurists would debate

the district court’s decision to reject this contention.

Equitable tolling is “a rare remedy” successfully invoked only “in unusual

circumstances,” and is “to be applied sparingly.” Yang v. Archuleta, 525 F.3d

925, 929 (10th Cir. 2008) (first quoting Wallace v. Kato, 549 U.S. 384, 396

(2007), then quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113

(2002)). Specifically, we have previously held that lack of access to relevant case

law is not enough, standing by itself, to justify equitable tolling of AEDPA’s

limitations period. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)

(noting that “a claim of insufficient access to relevant law, such as AEDPA, is not

enough to support equitable tolling”); see also Weibley v. Kaiser, 50 F. App’x

399, 403 (10th Cir. 2002) (unpublished) (“[A]llegations regarding insufficient

library access, standing alone, do not warrant equitable tolling.”). Notably, Mr.

Milton does not point to anything beyond lack of access to a law library that

would warrant equitable tolling. Accordingly, reasonable jurists could not debate

the correctness of the district court’s decision to reject Mr. Milton’s request for

7 equitable tolling.

IV

Finally, we address Mr. Milton’s request to proceed in forma pauperis in

his appeal. Because he has not shown “a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal,” McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan,

937 F.2d 502, 505 (10th Cir. 1991)), we deny his application to proceed in forma

pauperis and direct him to make full and immediate payment of the outstanding

appellate filing fee. See also United States v. Pitt, 672 F. App’x 885, 886 (10th

Cir. 2017) (unpublished) (denying a motion to proceed in forma pauperis, because

the COA applicant had not demonstrated “a reasonably debatable appeal point”).

V

Based on the foregoing, we DENY Mr. Milton’s request for a COA,

DISMISS the matter, and DENY his application to proceed in forma pauperis.

Entered for the Court

JEROME A. HOLMES Circuit Judge