182 F.3d 1153 (10th Cir. 1999), 98-6353, Rhine v Boone

Docket Nº:98-6353
Citation:182 F.3d 1153
Case Date:July 07, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1153

182 F.3d 1153 (10th Cir. 1999)




No. 98-6353

United States Court of Appeals, Tenth Circuit

July 7, 1999


Submitted on appellant's brief: [*]

Terry Lynn Rhine, pro se.

Before Porfilio, McKAY, and Lucero, Circuit Judges.

McKAY, Circuit Judge.

This appeal arises from the district court's dismissal of petitioner's habeas corpus petition as time-barred.1 Petitioner was convicted of second degree murder in state court after his plea of nolo contendre. He moved to withdraw his plea, and the trial court denied the motion. Because we do not have the state court record before us, it is difficult to ascertain the exact series of events that followed. We have,

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however, pieced the following event time-line from the briefs and the few state court documents that are in the record.

Petitioner's brief in support of his habeas petition states that he filed a pro se state court application for post-conviction relief on March 2, 1994. R. Vol. I, tab 2 at 2. The post-conviction application was denied on April 21, 1994, and he appealed the denial to the Oklahoma Court of Criminal Appeals on June 6, 1994. See id. On appeal, the Oklahoma Court of Criminal Appeals ordered the trial court to hold a new hearing on petitioner's motion to withdraw his plea. After a new hearing, the state court again denied the motion to withdraw the plea, and petitioner filed a second application for state post-conviction relief "[i]n June 1996."2 Id. at 3. The state district court denied the second application, and the Oklahoma Court of Criminal Appeals affirmed the trial court's denial of post-conviction relief on February 24, 1997. Petitioner filed a petition for writ of certiorari with the United States Supreme Court on April 11, 1997, and the petition was denied on June 16, 1997. Petitioner filed his petition for writ of habeas corpus relief pursuant to 28 U.S.C. § 2254 with the federal district court on February 23, 1998. The district court dismissed the petition as untimely and granted a certificate of appealability on the tolling issue.

According to 28 U.S.C. § 2244(d)(1)(A), a person in custody pursuant to the judgment of a state court has one year from the date the judgment became final to file an application for writ of habeas corpus pursuant to § 2254. This one-year limitation period was added to the statute by the Antiterrorism and Effective Death Penalty Act (AEDPA), which took effect on April 24, 1996. Petitioners whose convictions became final before the effective date of the AEDPA were given a grace period to file their federal habeas petitions by April 23, 1997. See United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). Pursuant to 28 U.S.C. § 2244(d)(2), the time during which a petitioner has a properly filed application for state post-conviction review pending is not counted toward the limitation period. See Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998).

The majority of petitioner's pro se brief on appeal centers around his contention that the State denied him access to legal materials, creating an impediment to timely filing his habeas petition. He argues that because of the State-created impediment, his limitation period should begin to run from the time the impediment was removed. See 28 U.S.C. § 2244(d)(1)(B). Petitioner did not make this argument to the district court. He filed an objection to the State's motion to dismiss the habeas petition as untimely, but he did not argue that the State had created an impediment to his filing in violation of the Constitution. Because we will generally not consider issues raised on appeal that were not first presented to the district court, see Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992), we do not address this issue.

Conversely, petitioner argued to the district court that the limitation period should be equitably tolled, but he has waived that issue by not raising it before this court. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994). We note, however, that the district court found that the circumstances of this case do not warrant equitable tolling, and, were we to decide this issue, we would agree.

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The issue that we address on appeal is how much time of the one-year limitation period was tolled under § 2244(d)(2). It is undisputed that the time during which petitioner's second state application for post-conviction relief was pending should not be counted toward the limitation period. It is also undisputed that this includes the 269 days between June 1, 1996 (the date the district court assumed the petition was filed) and February 24, 1997...

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