Robinson v. Kaiser, (10th Cir. 2000)

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UNITEDSTATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LUKE ROBINSON,

Petitioner-Appellant,

v.

STEPHEN KAISER, Warden ofDavis Correctional Center,

Respondent-Appellee.

LUKE ROBINSON,

Petitioner-Appellant,

v.

STEPHEN KAISER, Warden ofDavis Correctional Center;ATTORNEY GENERAL OF THESTATE OF OKLAHOMA,

Respondents-Appellees.No. 99-5155

(D.C. No. 99-CV-133-K)

(N.D. Okla.)

No. 99-7136

(D.C. No. 99-CV-177-S)

(E.D. Okla.)

ORDER AND JUDGMENT(*)

Before TACHA, EBEL, and BRISCOE,Circuit Judges.

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

In these two appeals, pro se petitioner Luke Robinson seeks certificates ofappealability to challenge the district courts' denials of his petitions for writs ofhabeas corpus, filed pursuant to 28 U.S.C. § 2254.(1) Mr. Robinson seeks to appealthe denial of: (1) his § 2254 petition challenging his seventy-five-year sentenceimposed by the Tulsa County District Court (Tulsa conviction); and (2) his § 2254petition challenging his sixty-year sentence imposed by the Muskogee CountyDistrict Court (Muskogee conviction). In each case, the federal district courtdismissed Mr. Robinson's petition as time barred under the Antiterrorism andEffective Death Penalty Act of 1996 (AEDPA). Because Mr. Robinson has failedto make a "substantial showing of the denial of a constitutional right" in eithercase, we deny each of his requests for a certificate of appealability, and dismissboth appeals. 28 U.S.C. § 2253(c)(2).

The Tulsa Conviction, No. 99-5155

Mr. Robinson was convicted by jury of robbery by force with two priorfelony convictions, for which he was sentenced, on January 12, 1993, toseventy-five years' imprisonment. On May 23, 1995, the Oklahoma Court ofCriminal Appeals affirmed his conviction on direct appeal. Mr. Robinson fileda petition for writ of habeas corpus in the Northern District of Oklahoma onApril 17, 1997. The federal district court dismissed his petition without prejudicefor failure to exhaust state remedies. On April 22, 1997, Mr. Robinson filed forstate post-conviction relief. The Tulsa County District Court denied relief onNovember 25, 1997 and, on February 18, 1998, the Oklahoma Court of CriminalAppeals affirmed that denial.

Mr. Robinson then filed a federal habeas petition on February 17, 1999. The district court, affirming and adopting the magistrate judge's report andrecommendation, found Mr. Robinson's petition time barred under AEDPA andrejected his equitable tolling arguments. Thereafter, the district court denied hisrequest for a certificate of appealability.

On appeal, Mr. Robinson argues that the district court did not apply§ 2244(d) correctly. He claims that he missed the deadline through no fault of hisown, but, rather, due to ineffective assistance of counsel. He also argues that thedoctrine of equitable tolling applies to his petition because his attorney did notcorrectly apprise him of the filing deadline.

AEDPA establishes a one-year limitations period for federal habeaspetitions which generally begins to run from "the date on which the judgmentbecame final by the conclusion of direct review or the expiration of the time forseeking such review." 28 U.S.C. § 2244(d)(1)(A); see also Hoggrov. Boone,150 F.3d 1223, 1225 (10th Cir. 1998). For prisoners whose convictions becamefinal before April 24, 1996--AEDPA's effective date--the one-year limitationsperiod commences on April 24, 1996. See Hoggro, 150 F.3d at 1225-26. Timespent pursuing a properly filed application for state post-conviction review,however, tolls the one-year grace period. See 28 U.S.C. § 2244(d)(2);Hoggro,150 F.3d at 1226.

Here, Mr. Robinson filed his state post-conviction petition one day beforethe expiration of his AEDPA grace period. He therefore had to file his federalpetition one day after the Oklahoma Court of Criminal Appeals affirmed thedenial of post-conviction relief. Instead, he waited close to one year before filinghis petition in federal court.

We have reviewed the record, Mr. Robinson's arguments, the relevant law,and the district court's decision. Mr. Robinson's arguments do not further hiscause. His petition is time barred under AEDPA and the doctrine of equitabletolling does not save his petition. Specifically, Mr. Robinson did not: (1) diligently pursue his remedies as required by Miller v. Marr, 141 F.3d 976,978 (10th Cir.), cert. denied, 525 U.S. 891 (1998); (2) present any "extraordinarycircumstances" outside his control that made it impossible for him to file hispetition on time, Calderon v. United States District Court, 128 F.3d 1283, 1288(9th Cir. 1997); cert. denied, 522 U.S. 1099 (1998); or (3) make a colorableshowing of actual innocence, see Miller, 141 F.3d at 978.

Counsel's ineptitude, while unfortunate, does not save Mr. Robinson'spetition. First, there is no federal constitutional right to counsel in collateralproceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Second,thiscourt has held that a pro se petitioner cannot rely on his lack of knowledge aboutAEDPA in order to garner the benefits of equitable tolling. See Miller, 141F.3dat 978 (noting that pro se petitioner "simply did not know about the limitation inAEDPA until it was too late" and affirming district court's denial of habeaspetition as time barred). Given these two principles, it would be unfair to invokeequitable tolling when a petitioner is poorly represented in collateral proceedingsand to apply the doctrine based on counsel's lack of knowledge of AEDPA. Counsel's ineptitude would be of greater concern, perhaps, if Mr. Robinson couldshow that he diligently pursued his remedies or if he made a more substantialshowing of actual innocence.

The Muskogee Conviction, No. 99-7136

Mr. Robinson was convicted of larceny of merchandise from a retail storewith two prior felonies, for which he was sentenced, on November 9, 1993, tosixty years' imprisonment. The Oklahoma Court of Criminal Appeals affirmedhis conviction on January 22, 1996. On April 23, 1997, he sought post-convictionrelief in the Muskogee County District Court. That court's denial of relief wasaffirmed by the Oklahoma Court of Criminal Appeals on September 11, 1998.

Mr. Robinson filed his federal habeas petition on April 14, 1999. Thedistrict court dismissed Mr. Robinson's petition as time barred under AEDPA andrejected his equitable tolling argument because he failed to make a colorableshowing of actual innocence. The district court denied Mr. Robinson's requestfor a certificate of appealability.

On appeal, Mr. Robinson concedes his petition was late under AEDPA, butargues that the district court should not have applied the limitations period to hiscase because he had ineffective assistance of counsel and the petition was latethrough no fault of his own. He also claims that he made a colorable showing ofactual innocence and that the doctrine of equitable tolling saves his petition.

We have reviewed the record, Mr. Robinson's arguments, the relevant law,and the district court's decision. For the same three reasons stated above inreference to the Tulsa conviction, Mr. Robinson's petition is not subject toequitable tolling. Again, for the reasons discussed in reference to the Tulsaconviction, counsel's ineptitude does not save his petition.

For the foregoing reasons we DENY certificates of appealability inNos. 99-5155 and 99-7166 and DISMISS the appeals.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

FOOTNOTES

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*. This order and judgment is notbinding precedent, 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. Mr. Robinson was represented bycounsel in the district court in both of his§ 2254 cases on review here.

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