Barnes v. Booher, (10th Cir. 2000)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

SAMUEL BARNES,

Petitioner-Appellant,

v.



GLYNN BOOHER,

Respondent-Appellee.

No. 00-7066

(E. District of Oklahoma)

(D.C. No. 99-CV-403-S)

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

Before BRORBY,
name="9">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.

Samuel Barnes, proceeding pro se and in forma pauperis,
href="#N_1_a" name="txt1a">(1) seeks a

certificate of appealability ("COA") so that he can appeal the district court's

denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1) (providing that a COA is a necessary predicate to any appeal from a

final order in a § 2254 proceeding). Because Barnes has not "made a substantial

showing of the denial of a constitutional right," id. § 2253(c)(2), this court

denies his request for a COA and dismisses this appeal.

Barnes was convicted in Oklahoma state court in 1993 on charges of

unlawful possession of marijuana with intent to distribute. Barnes did not perfect

a direct appeal. Nevertheless, because of Barnes' poor health and overcrowding

in the Oklahoma prison system, his sentence was deferred until his health

improved. Barnes eventually had heart bypass surgery and stopped reporting his

medical condition as required by the terms of his sentence deferral. Accordingly,

Oklahoma authorities detained Barnes and he began serving his ten-year term of

incarceration in July of 1998. According to Barnes, it was not until after he was

eventually incarcerated, approximately five years after his conviction became

final, that he "discovered" that his attorney had not perfected a direct appeal.

Barnes therefore filed an application for post-conviction relief in state court on

November 2, 1998, requesting an out-of-time appeal. The Oklahoma Court of

Criminal Appeals ("OCCA") affirmed the denial of Barnes' state petition in an

unpublished order, concluding that it was Barnes himself, rather than Barnes'

counsel, who was at fault for failing to perfect a direct appeal. In particular, the

OCCA concluded that Barnes had sufficient income to pay counsel and had been

specifically "advised at the time of sentencing of his right to appeal and his right

to court appointed counsel and publicly provided transcripts, yet . . . made no

application for either." Furthermore, the OCCA concluded that Barnes "was

negligent in failing to communicate with his attorney, pay his attorney, pay for a

transcript on appeal or take any other steps to attempt to perfect his appeal."

After he was unsuccessful in seeking a direct appeal out-of-time in state

court, Barnes filed the instant § 2254 habeas petition. After setting out the

relevant time line, the district court concluded that Barnes' § 2254 petition was

not timely filed. The district court noted that because Barnes' conviction became

final prior to the effective date of the Antiterrorism and Effective Death Penalty

Act of 1996 ("AEDPA"), he had until April 24, 1997 to file his § 2254 petition.

See 28 U.S.C. § 2244(d)(1) ("A 1-year period of limitations shall apply to an

application for a writ of habeas corpus by a person in custody pursuant to a

judgment of a State court."); Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998)

(holding that when a conviction became final before the effective date of the

AEDPA, a petitioner has "one year after the enactment of the AEDPA" to file a

§ 2254 petition). Barnes' § 2254 petition was filed far outside of the one-year

period. Furthermore, because Barnes' state petition for post-conviction relief

was not filed until § 2244(d)'s limitations period had already expired, that

petition did not serve to toll the limitations period under § 2244(d)(2). Finally,

although recognizing that the limitations period set out in § 2244(d)(1) was

subject to equitable tolling, see Miller, 141 F.3d at 978, the district court

concluded that Barnes was not entitled to equitable tolling because he had not

diligently pursued his claim. As noted by the district court, Barnes was free from

incarceration during the entire time the limitations period was running, making it

significantly easier for Barnes to access the resources necessary to timely file a

petition. As noted by the OCCA in denying Barnes' state petition for post-conviction relief,

Barnes had the wherewithal to monitor his legal proceedings

during the relevant periods but simply neglected to do so.

Barnes is entitled to a COA only upon making a substantial showing of the

denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). This showing

requires a demonstration that reasonable jurists could debate whether the petition

should have been resolved in a different manner. See Slack v. McDaniel, 120 S.

Ct. 1595, 1603-04 (2000). Upon review of Barnes' appellate contentions, the

district court's order, and the entire record on appeal, this court concludes that

the district court's conclusion that Barnes is not entitled to equitable tolling

because of his lack of diligence is not reasonably debatable. Accordingly, we

DENY Barnes' request for a COA and DISMISS the

appeal.

ENTERED FOR THE COURT:

Michael R. Murphy

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.Barnes has submitted to this court, attached

to his pro se brief, an

application to proceed in forma pauperis on appeal. After the brief with attached

application was filed, however, the district court granted Barnes' motion to

proceed in forma pauperis on appeal. Accordingly, Barnes' application to this

court to proceed in forma pauperis on appeal is dismissed as

moot.

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