Miller v. Marr

F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

APR 14 1998

UNITED STATES COURT OF APPEALS

PATRICK FISHER

Clerk

TENTH CIRCUIT

GEORGE LEE MILLER,

Petitioner - Appellant,

v. No. 97-1380

RICHARD MARR; ATTORNEY

GENERAL FOR THE STATE OF

COLORADO,

Respondents - Appellees.

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 97-S-1628)

Submitted on the Briefs: *

George Miller, pro se.

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

KELLY, Circuit Judge.

*

After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Mr. Miller, an inmate, appeals from the dismissal of his habeas corpus

petition, 28 U.S.C. § 2254. Upon recommendation of the magistrate judge, the

district court dismissed the action as untimely under the one-year limitation

period contained in 28 U.S.C. § 2244(d)(1), enacted under the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.

1214. He now appeals, conceding that the petition was filed beyond the time

limit in § 2244(d)(1), see Aplt. Br. (Form A-11) at 11-11A, but contending that

the delay should be imputed to the state due to lack of access to legal materials.

See 28 U.S.C. § 2244(d)(1)(B). We grant Mr. Miller’s motion for leave to

proceed on appeal without prepayment of costs or fees, grant his application for a

certificate of appealability on the above issue, see 28 U.S.C. § 2253(c), and

affirm the district court’s judgment of dismissal.

Mr. Miller pled guilty to second degree murder and attempted second

degree assault in Colorado in 1989. He was sentenced to forty years and thirteen

years on the respective convictions, the sentences to run consecutively. He

unsuccessfully appealed to the Colorado Court of Appeals, and the Colorado

Supreme Court denied certiorari on March 25, 1991. Thereafter, Mr. Miller filed

a motion for state postconviction relief, unsuccessfully appealed to the Colorado

Court of Appeals, and the Colorado Supreme Court denied certiorari on October

4, 1993.

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In his petition dated July 10, 1997, Mr. Miller raises two grounds for relief:

(1) he was given an unduly harsh sentence, and (2) he received inadequate advice

that his sentences could be consecutive upon entering his plea. He indicates that

the first ground was raised on direct appeal; the second was raised in his motion

for postconviction relief. To avoid the one-year limitation period, Mr. Miller was

required to file prior to April 24, 1997, one year after the enactment of the

AEDPA. See United States v. Simmonds, 111 F. 3d 737, 746 (10th Cir. 1997).

Mr. Miller contended below that the one-year limitation on filing a first

habeas petition violated the Suspension Clause, U.S. Const. art. I, § 9, cl. 2, the

Constitution’s prohibition on suspending the writ. Whether the one-year

limitation period violates the Suspension Clause depends upon whether the

limitation period renders the habeas remedy “inadequate or ineffective” to test the

legality of detention. Swain v. Pressley, 430 U.S. 372, 381 (1977); United States

v. Hayman, 342 U.S. 205, 223 (1952). The burden is on the petitioner to

demonstrate inadequacy and ineffectiveness. See Bradshaw v. Story, 86 F.3d 164,

167 (10th Cir. 1996).

In Felker v. Turpin, 116 S. Ct. 2333 (1996), the Court held that restrictions

on filing successive petitions did not constitute a suspension of the writ, but did

not address restrictions on filing a first petition. See id. at 2339-40. In Lonchar

v. Thomas, 116 S. Ct. 1293 (1996), the Court disapproved of dismissal of a first

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federal habeas petition on equitable grounds outside of the statutory rule

concerning delayed petitions, Rule 9(a) of the Rules Governing § 2254 Cases in

the United States District Courts. See id. at 1303. The Court distinguished

between successive petitions and first federal habeas petitions: “Dismissal of a

first federal habeas petition is a particularly serious matter, for that dismissal

denies the petitioner the protections of the Great Writ entirely, risking injury to an

important interest in human liberty.” Id. at 1299. At the same time, the Court

expressed a clear deference to the rules that Congress has fashioned concerning

habeas. See id. at 1298.

There may be circumstances where the limitation period at least raises

serious constitutional questions and possibly renders the habeas remedy

inadequate and ineffective. Cf. Treistman v. United States, 124 F.3d 361, 373-

380 (2d Cir. 1997) (§ 2255). After considering the claims Mr. Miller desires to

raise, however, we are satisfied that such circumstances are not implicated here.

It must be remembered that § 2244(d) is not jurisdictional and as a limitation may

be subject to equitable tolling. See Calderon v. United States District Court, 128

F.3d 1283, 1287-88 (9th Cir. 1997), cert. denied, 118 S. Ct. 899 (1998).

Moreover, Mr. Miller does not contend, for example, that a constitutional

violation has resulted in the conviction of one who is actually innocent or

incompetent. See Schlup v. Delo, 513 U.S. 298, 324-29 (1995); Cooper v.

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Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 1376-77 (1996). The one-year time

period begins to run in accordance with individual circumstances that could

reasonably affect the availability of the remedy, see 28 U.S.C. § 2244(d)(1)(B)-

(D); see also Calderon, 128 F.3d at 1289 (limitation period tolled for

extraordinary circumstances over which inmate had no control), but requires

inmates to dillegently pursue claims.

Mr. Miller had from October 4, 1993 to file his federal habeas petition. He

had an additional year after the enactment of AEDPA given this circuit’s decision

in Simmonds. Mr. Miller contends that because he was housed at a private

Minnesota correctional facility from January 21, 1995 until April 29, 1997, he

lacked access to federal statutes and Colorado case law and only learned upon his

return of the AEDPA’s one-year time period. See R. doc. 7 at 2. Of course, this

does not explain Mr. Miller’s lack of pursuit of his federal claims before the

transfer from Colorado to Minnesota, from October 4, 1993 until January 20,

1995. We note that the claims Mr. Miller sought to raise are similar to those

raised in his direct appeal and motion for state postconviction relief, thereby

undercutting his argument that lack of access caused his delay. In the final

analysis, however, Mr. Miller has provided no specificity regarding the alleged

lack of access and the steps he took to diligently pursue his federal claims. Cf.

Lewis v. Casey, 116 S. Ct. 2174, 2179 (1996). It is not enough to say that the

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Minnesota faciltiy lacked all relevant statutes and case law or that the procedure

to request specific materials was inadequate. See Aplt. Br. (Form A-11) at 10. It

is apparent that Mr. Miller simply did not know about the limitation in the

AEDPA until it was too late.

AFFIRMED.

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