Shields v. Smith
This text of Shields v. Smith (Shields v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 10, 2020 _________________________________ Christopher M. Wolpert Clerk of Court MARK SHIELDS,
Petitioner - Appellant,
v. No. 20-6000 (D.C. No. 5:19-CV-00801-D) R. C. SMITH, Warden; SCOTT CROW, (W.D. Okla.) Director, Department of Corrections; BOARD OF PARDON AND PAROLE,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before HARTZ, BALDOCK, and CARSON, Circuit Judges. _________________________________
Applicant Mark Shields seeks a certificate of appealability (COA) to appeal the
denial by the United States District Court for the Western District of Oklahoma of his
application for relief under 28 U.S.C. § 2241. See 28 U.S.C. § 2253(c)(1)(A) (requiring
COA for state prisoner to appeal denial of relief under § 2241). We deny a COA and
dismiss the appeal.
In 1984 Applicant was convicted of first-degree murder and sentenced to life
imprisonment. On August 30, 2019, Applicant filed an application for relief asserting
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. that he is entitled to the parole procedures that existed at the time of his conviction and
that he has been improperly denied the application of good-time credits to his sentence.
Although Applicant styled his application as being under 28 U.S.C. § 2254, the district
court properly construed his filing as an application for relief under § 2241 because he
challenges the execution of his sentence. See Yellowbear v. Wyoming Att’y Gen., 525
F.3d 921, 924 (10th Cir. 2008) (“Section § 2241 is a vehicle . . . for attacking the
execution of a sentence. A § 2254 petition, on the other hand, is the proper avenue for
attacking the validity of a conviction and sentence.” (citations omitted)).
The magistrate judge reported that none of Applicant’s issues had merit and also
recommended that the application be dismissed without prejudice as untimely. Because
Applicant filed objections to the magistrate judge’s Supplemental Report and
Recommendation, the district court reviewed the issues de novo. The district court
agreed with and adopted the Supplemental Report and Recommendation in its entirety.
Accordingly, it dismissed the application without prejudice and denied a COA.
Applicant now seeks a COA from this court.
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing 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, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other
words, the applicant must show that the district court’s resolution of the constitutional
2 claim was either “debatable or wrong.” Id. If the application was denied on procedural
grounds, the applicant faces a double hurdle. 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.
In 1997 the Oklahoma legislature passed the Truth in Sentencing Act which
repealed the prior parole statute and decreased the frequency of parole reconsideration for
violent offenders—including those like Applicant who were convicted before the Act was
enacted. See Okla. Stat. Ann. tit. 57, § 332.7. Applicant asserts in this court that the use
of the procedures set out in the Act, as opposed to the parole procedures in place at the
time of his conviction, violates his due-process rights and runs afoul of the Ex Post Facto
Clause of the federal Constitution. He also claims that he was denied the application of
good-time credits in violation of his right to due process.
Although the district court rejected Applicant’s claims on the merits, it also
determined that his parole claim was untimely because he admitted that he was
considered for parole sometime in 2005 and was therefore aware by then that the
frequency and nature of his parole consideration was being governed by the amended
statute. Thus the one-year limitations period under 28 U.S.C. § 2244(d)(1)(D) would
have expired on that claim long before his application was filed. See Burger v. Scott, 317
F.3d 1133, 1138 (10th Cir. 2003); Maynard v. Chrisman, 568 F. App’x 625, 626–27
(10th Cir. 2014).
3 Applicant has alleged various difficulties he had in learning of a legal basis for his
claim, including difficulties accessing case law and other authorities. But the district
court properly declined to toll the limitations period, recognizing that we have limited
equitable tolling to “rare and exceptional circumstances,” and have said that “a claim of
insufficient access to relevant law . . . is not enough to support equitable tolling.” Gibson
v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (internal quotation marks omitted).
Applicant also maintains that the district court mischaracterized his parole history
when it conducted its timeliness inquiry. His claim appears to be that the district court
mistakenly described Applicant as having been considered for parole in 2005 even
though he was afforded only an informal “jacket review” of his application as opposed to
an in-person hearing. Absent such an in-person hearing, he contends, the 2005
proceeding cannot be accurately described as “parole consideration.” We disagree.
Applicant apparently misunderstands the parole procedures applicable to him as a result
of the amended statute. As the district court explained, the parole statute provides that all
violent offenders are subject to a two-step parole process under which an individual is not
entitled to anything more than a review of the report submitted by the Pardon and Parole
Board (“jacket review”) unless the Board votes for further consideration. See Okla. Stat.
Ann. tit. 57, § 332.7(D)(1). Thus, a jacket review constitutes parole consideration. And,
in any event, the absence of in-person review clearly alerted Applicant that he was being
reviewed under the new statute.
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