Atkins v. Boone, (10th Cir. 2000)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

KENNETH RAY ATKINS,

Petitioner-Appellant,

v.



BOBBY BOONE; ATTORNEY

GENERAL OF THE STATE OF

OKLAHOMA,

Respondents-Appellees.

No. 99-7153

(E.D. Okla.)

(D.Ct. No. 99-CV-184-B)

ORDER AND JUDGMENT
name="txt*">(*)

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 Kenneth Ray Atkins, a 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, and denying his request for a certificate of

appealability. We deny Mr. Atkins' request for a certificate of appealability and

dismiss his appeal.

The district court dismissed Mr. Atkins' petition as untimely. In so doing,

the district court applied the applicable statutes and carefully calculated the

deadline for filing Mr. Atkins' petition. The district court first determined Mr.

Atkins' conviction became final on July 31, 1996, and the one-year statute of

limitation applied under 28 U.S.C. § 2244(d) extended the filing period for Mr.

Atkins' petition to July 30, 1997. The district court then determined Mr. Atkins'

first state post-conviction application tolled the one-year limitation period under

§ 2244(d)(2) for forty-nine days from April 24, 1997 until June 12, 1997, thereby

extending his one-year limitation period from July 31, 1996 to September 17,

1997.

The district court next rejected Mr. Atkins' request to equitably toll the

limitation period for another ten months and six days from June 12, 1997, when

the state court issued his first post-conviction decision, to April 17, 1998, when

Mr. Atkins allegedly learned of the state court's decision. In rejecting this

argument, the district court ascertained Mr. Atkins: 1) provided no

documentation showing his counsel abandoned Mr. Atkins' case in allegedly

failing to advise him of the state court's decision; and 2) failed to diligently

pursue his federal habeas claims. The district court further reasoned that even if

the limitation period was extended until the time Mr. Atkins knew about the

denial of his state petition, Mr. Atkins still did not timely file his petition. In

making this determination, the district court added the ten-month and six-day

period in which Mr. Atkins claimed he did not know of the state decision, to the

September 17, 1998 deadline, arriving at a new, hypothetical deadline of July 23,

1998 for filing his petition. However, the court noted Mr. Atkins did not actually

file his habeas petition until April 19, 1999 ­ well beyond July 23, 1998.

The district court also rejected Mr. Atkins' argument his second state

habeas post-conviction petition,(1)

filed on October 21, 1998, tolled the deadline.

The district court found Mr. Atkins' second state petition could not toll the

limitation period as he filed it even after the hypothetically extended deadline of

July 23, 1998. Finally, the district court held Mr. Atkins' alleged three-month

delay by his attorneys in filing his direct appeal had no significant effect on the

date his conviction became final.(2)

On appeal, Mr. Atkins raises the same issues addressed by the district court

concerning the equitable tolling of the limitation period for filing his petition.

Specifically, Mr. Atkins suggests tolling the limitation period by seventeen

months for delays which occurred in filing his direct state appeal and in

discovering the state appellate court's ruling on his first state habeas petition.

We review the legal basis for the district court's dismissal of Mr. Atkins'

§ 2254 petition de novo. See Jackson v. Shanks, 143 F.3d

1313, 1317 (10th Cir.),

cert. denied, 525 U.S. 950 (1998). In applying this standard, and after a careful

review of the record, we agree with the district court's thorough and well-explained assessment

that Mr. Atkins untimely filed his § 2254 petition.

Therefore, we decline to duplicate the same analysis here.

Under circumstances presented, Mr. Atkins fails to make a substantial

showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). Thus, for substantially the same reasons set forth in the district

court's November 4, 1999 Order, we deny Mr. Atkins' application for a

certificate of appealability, and DISMISS his appeal.

Entered by the Court:

WADE BRORBY

United States Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. 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.

1. This petition raised the same issues raised

in the first state post-conviction

petition.

2. In requesting equitable tolling of the

limitation period, Mr. Atkins relied on a

letter from his wife to the Oklahoma Bar Association. In the letter, his wife alleges the

attorneys who filed his direct state appeal acted ineffectively, in part by delaying the

filing of Mr. Atkins' direct appeal; failing to file a State post-conviction appeal instead of

a direct appeal, and neglecting for three months to advise Mr. Atkins of the state appellate

court's decision on direct appeal. As the district court noted, this alleged three-month

delay had no significant effect on the date his conviction became final. We further note

that despite Mr. Atkins' wife's perceived three-month delay, no prejudice occurred as Mr.

Atkins' attorneys appear to have timely filed his direct appeal, and Mr. Atkins timely filed

a state post-conviction petition, which tolled the one-year limitation period for filing his

federal petition for forty-nine days.

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