Corntassel v. Ray, (10th Cir. 2003)

Docket Number:02-5038




Petitioner - Appellant,


CHARLES RAY, Warden of DavisCorrectional Center; DREWEDMONDSON, Attorney General forthe State of Oklahoma; JAMESSAFFLE

Respondents - Appellees.No. 02-5038D.C. No. 01-CV-122-H(N.D. Oklahoma)


Before EBEL, LUCERO, and O'BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determinedunanimously that oral argument would not materially assist the determination ofthis appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case istherefore ordered submitted without oral argument.

Shawn E. Corntassel applies pro se for a certificate of appealability(1) of thedistrict court's denial of his petition for writ of habeas corpus filed under 28 U.S.C. § 2254. The district court denied the habeas petition astime-barred(2) anddenied the certificate. Exercising jurisdiction conferred by 28 U.S.C. §2253(c)(1), we agree the petition was untimely filed, deny the renewed requestfor a certificate of appealability(3),and dismiss the appeal.

Mr. Corntassel was convicted by an Oklahoma jury in October 1992 of twofelony counts: (1) assault and battery with a dangerous weapon, and (2) seconddegree murder. He was sentenced to consecutive terms of imprisonment: tenyears for the assault, and thirty-five years for the murder. The Oklahoma Courtof Criminal Appeals affirmed his convictions on April 4, 1995. Mr. Corntasselthen invoked state post-conviction review through three successive applicationsfor post-conviction relief (all denied, two appealed, both appeals denied) and onepetition for writ of habeas corpus (denied, appealed, appeal denied). Finally,hefiled for federal habeas review on February 20, 2001.

Petitioners have one year in which to file a federal habeas petition from astate court judgment pursuant to 28 U.S.C. § 2244(d). The year commences withthe date on which the state judgment becomes final, and is tolled while statecourt post-conviction proceedings are pending.(4) The district court calculated thedeadline to petition for federal habeas relief to be August 5, 1997. While Mr.Corntassel does not contest this calculation, he argues § 2244(d) should still notbar his claim for three reasons we are able to construe from his pleadings(5): (1)he should benefit from equitable tolling; (2) § 2244(d) violates the SuspensionClause of the U.S. Constitution; and (3) § 2244(d) does not apply to habeaspetitions challenging the jurisdiction of the state court to render judgment on acriminal conviction.(6)

We issue a certificate of appealability "only if the applicant has made asubstantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c)(2). When a district court has dismissed a § 2254 petition on proceduralgrounds, a certificate will issue when "jurists of reason would find it debatablewhether the district court was correct in its procedural ruling." Slack v.McDaniel, 529 U.S. 473, 484 (2000).

Equitable tolling is a doctrine providing safety-valve relief from rigidapplication of the one-year limitation rule of § 2244(d). It is only available in"rare and exceptional circumstances," Gibson v. Klinger, 232 F.3d 799, 808 (10thCir. 2000) (internal citation omitted), such as "when a prisoner is actuallyinnocent [or] when an adversary's conduct­or other uncontrollablecircumstances­prevents a prisoner from timely filing . . . ." Id. (internalcitationsomitted). "Moreover, a petitioner must diligently pursue his federal habeasclaims . . . ." Id. Since Mr. Corntassel waited more than three and one-half yearsafter the federal deadline to file his claim, we agree with the district judge'sdecision to deny him equitable tolling relief. He was not diligent. Furthermore,there is no evidence in the record to suggest he is actually innocent of the chargesof which he stands convicted, or that other uncontrollable circumstances impededhim from timely filing his federal claim.

Mr. Corntassel next argues the one-year limitation in § 2244(d) violates theSuspension Clause, U.S. Const. art. I, § 9, cl. 2.(7) To succeed, Mr. Corntasselmust demonstrate the one-year limitation of § 2244(d) renders the habeas remedy"inadequate or ineffective to test the legality of [his] detention." Miller v. Marr,141 F.3d 976, 977 (10th Cir.) (internal quotation marks and citation omitted),cert. denied, 525 U.S. 891 (1998). He has not met his burden since his own lackof diligence, not § 2244(d), foreclosed his ability to proceed with federal habeasaction.

Finally, Mr. Corntassel argues § 2244(d) does not bar habeas review of aproceeding conducted without jurisdiction and, hence, in violation of his dueprocess rights. We construe this argument as another request for equitabletolling, this time on the basis of actual innocence. Mr. Corntassel reasons hisconviction for second degree murder is void since he was charged with firstdegree murder, but convicted of second degree murder on a lesser-includedoffense instruction. He argues a trial court loses subject matter jurisdiction whenthe judge gives an arguably erroneous instruction.(8) He offers no authority insupport of this proposition; we find none, and so this basis of his claim fails. SeePhillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992) (dismissing anargument unsupported by cogent authority).

We conclude no reasonable jurist would debate the district court wascorrect in its procedural ruling, we decline to issue a certificate of appealability,and DISMISS the appeal.

Entered by the Court:


United States Circuit Judge


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

*. This order and judgment is not bindingprecedent except under thedoctrines of law of the case, res judicata and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. See 28 U.S.C. §2253(c)(1).

2. It is clear from the record the district courtcould have declined issuanceof a writ on the grounds of failure to exhaust state remedies, 28 U.S.C. §2254(b)(1), and adjudication on the merits in state court, 28 U.S.C. § 2254(d).

3. We grant Mr.Corntassel's motion tocorrect his application for acertificate of appealability and consider his corrective material.

4. Mr. Corntassel's state habeas corpuspetition and his third application forpost-conviction relief were both filed outside the one-year limitation period andthus do not toll as pending state collateral review actions under 28 U.S.C. §2244(d)(2). Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001), cert.denied, 122 S. Ct. 1789 (2002).

5. We construe a pro se pleading liberally. Haines v. Kerner, 404 U.S. 519,520-21 (1972).

6. Mr. Corntassel contends he was actuallyinnocent of the offense ofsecond degree murder of which he was convicted on a lesser-included offenseinstruction.

7. "The Privilege of the Writ of HabeasCorpus shall not be suspended,unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art. I, § 9, cl. 2.

8. Mr. Corntassel raised the same argumentin his third state application forpost-conviction relief, filed after the federal habeas deadline. In affirming thedenial of the application, the Oklahoma Court of Criminal Appeals found noerror in the trial court instruction on second degree murder as a lesser-includedoffense of first degree murder.