Burger v. Scott

Decision Date15 January 2003
Docket NumberNo. 01-6285.,01-6285.
PartiesDerek D. BURGER, Petitioner-Appellant, v. H.N. SCOTT, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Submitted on the briefs: Gloyd L. McCoy of Coyle, McCoy & Burton, Oklahoma City, OK, for Petitioner-Appellant.

W.A. Drew Edmondson, Attorney General of Oklahoma, William R. Holmes, Assistant Attorney General, Oklahoma City, OK, for Respondent-Appellee.

Before SEYMOUR, McKAY, and MURPHY, Circuit Judges.

McKAY, Circuit Judge.

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.

Petitioner Derek D. Burger, an Oklahoma state inmate appearing pro se, appeals the district court's dismissal of his 28 U.S.C. § 2241 petition for writ of habeas corpus as falling outside the federal statute of limitations. Previously we determined that Burger had made the required "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(b)(2), and therefore we granted a certificate of appealability (COA) and ordered supplemental briefing on the issue of whether the district court properly dismissed Burger's petition as untimely. Because we conclude that equitable tolling should have been applied in this case, we reverse and remand to the district court for further proceedings.

I. Background

Burger is currently serving a fifty-year sentence for robbery with a firearm. He was considered for parole in December of 1996, 1997, and 1998, pursuant to an annual parole consideration date under existing Oklahoma Pardon and Parole Board policy, but he was denied parole on each occasion. In July 1997, the Oklahoma law regarding parole consideration was amended to lengthen the period of reconsideration after the denial of parole from one to three years for persons convicted of a violent crime. See Okla. Stat. Ann. tit. 57, § 332.7 (West 1991 & Supp.2002). Consequently, the Oklahoma Pardon and Parole Board informed Burger on February 17, 1999, that his next parole hearing had been moved from December of 1999 to December of 2001.

In a state habeas proceeding filed in the Cleveland County District Court, Burger challenged this action as violating the Ex Post Facto Clause of the United States Constitution. The circumstances surrounding the timing of this state filing form the core of the current dispute. While his petition was date-stamped as "filed" by the state district court on May 12, 2000, Burger contends he actually mailed his petition to that court on January 7, 2000. Because Oklahoma imposes no time limits for filing applications for post-conviction relief in the district courts, see Moore v. Gibson, 27 P.3d 483, 487 (Okla.Crim.App.2001), the filing date had no bearing on the timeliness of Burger's state petition, which was ultimately denied on the merits by the district court and the Oklahoma Court of Criminal Appeals (OCCA).1 The state court filing date did, however, prove critical to Burger's filing in federal court.

Burger filed his federal petition on December 13, 2000, fourteen days after the OCCA ruled on his state claim. The State responded, arguing inter alia, that Burger's federal claim was barred by the one-year statute of limitations pursuant to 28 U.S.C. § 2244(d)(1). According to the State, Burger's federal limitations period began to run on February 17, 1999, the day he received notice of the change in his parole reconsideration date; consequently, Burger had until February 17, 2000, to seek federal habeas relief. Therefore, the State argued, Burger's federal petition was filed nearly ten months outside the one-year limitations period. Burger objected to the State's timeliness argument by alleging that he had, in fact, mailed his state petition on January 6, 2000,2 and that therefore the federal limitations period should be tolled during the pendency of his state petition. According to Burger, the four-month delay in getting his petition "filed" was beyond his control. Specifically, Burger claimed:

[t]he Cleveland County District Court was playing some type of game with inmates Petition, that's why it wasn't filed until May 12, 2000. See there isn't any [sic] fees in filing a Writ of Habeas Corpus in the State Courts system, but Cleveland County District Court elected to charge Petitioner a fee of $122.00. Taken into consideration that Petitioner's intention was that his Petition should have been filed on the 6th or 7th day of January, 2000. Petitioner could not be at fault because the Cleveland County District Court held his Petition for four (4) months before it was filed.

R., Doc. 9 at 2. At the time of his objection, Burger's only evidence of a January filing was his notarized verification, which was attached to his original state petition and dated January 6, 2000.

The magistrate judge assigned to the case ordered the State to address Burger's claim that he timely filed his state petition. The State subsequently filed a supplemental response stating that

[t]he undersigned spoke with the Cleveland County Deputy Court Clerk that handles the habeas filings. She advised that there is nothing in the records in Cleveland County to either confirm or deny [Burger's] claim that he mailed his state habeas petition to them in January of 2000. Records or copies of pre-filing correspondence are not logged in or kept by the Cleveland County Court Clerk's office. Consequently, no records or computer entries exist regarding [Burger's] state habeas petition ... prior to May 12, 2000.

The deputy clerk did advise, however, that such petitions are often not filed when received, and that they are commonly returned to prisoners with instructions regarding how to apply for in forma pauperis status and with instructions on the proper format for the summons. Once the prisoner provides the information in the manner instructed, the Clerk takes the pleading to the presiding judge for a determination of whether it is ready to be filed.

Id., Doc. 13 at 1.

The magistrate judge recommended that Burger's petition be dismissed as untimely pursuant to § 2244(d)(1). Specifically, the magistrate judge found the applicable limitations period began to run on February 17, 1999, the date when "the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." R., Doc. 15 at 3 (quoting § 2244(d)(1)(D)). The magistrate judge rejected Burger's argument that the provisions of § 2244(d)(1)(C) (allowing the limitations period to begin on the date on which the constitutional right asserted in the petition was initially recognized by the Supreme Court) provided the starting point for the running of the limitation period. Consequently, the magistrate judge concluded that Burger had until February 17, 2000, to file his federal habeas claim and that therefore, absent some applicable tolling provision, Burger's filing on December 13, 2000, was untimely.

The magistrate judge then found that the appropriate limitations period was not subject to either statutory or equitable tolling. As to statutory tolling, the magistrate judge noted "[Burger] provides no demonstrative support for the assertion that his state habeas petition was received by the state district court prior to its filing date of May 12, 2000." Id. at 4. Acknowledging Oklahoma's refusal to recognize a prisoner mailbox rule for post-conviction applications filed in the district courts,3 the magistrate judge searched for evidence that Burger delivered a properly verified application for post-conviction relief to the appropriate district court for the purposes of filing. See Moore, 27 P.3d at 488; R., Doc. 15 at 5-6. Finding none, the magistrate judge concluded "there is nothing in the record to indicate that [Burger's] state petition was received on any day other than May 12, 2000, when both parties agree the petition was filed in the state district court." R., Doc. 15 at 6. Recommending against equitable tolling of the federal limitations period, the magistrate judge found that "[Burger] has not diligently pursued his ex post facto claim, and [he] presents no extraordinary circumstances compelling ... equitable tolling." Id. at 7.

Burger objected to the magistrate judge's report and recommendation and specifically addressed the timeliness issue, providing additional evidence to the district court that his state petition was properly submitted in January 2000. In his objection, Burger alluded to an apparent misunderstanding he had with the county court about his filing fee,4 but he nevertheless provided the federal court with a copy of two checks made out to the Cleveland County Court Clerk. The first check, No. 017513, was dated January 3, 2000, in the amount of $122.00, and included a notation indicating that Burger received the check on January 6, 2000. The second check, No. 018862 for the same amount, was dated June 5, 2000. Burger argued that after he mailed his petition and check on January 7, he received no word from the county court about his case "until the Court requested an additional $122.00 ... thus making the total filing fees of $244.00." Id. Doc. 17 at 3.

In addition to the two checks, Burger provided a copy of the prison legal mail log, showing that he placed something in the mail addressed to the Cleveland County Court Clerk on January 7, 2000. He also provided a copy of the prison's notary record log, indicating that he had something notarized for "Cleveland Cty" on January 6. Finally, he provided a receipt for payment, issued by the Cleveland County Court, showing the court's receipt of check No. 17513 on May 15, 2000. Attached to the receipt was a letter from the court clerk, dated June 1, 2000, requesting prison officials replace check No. 17513 because it was posted as received more than ninety...

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