Childers v. Crow, 20-5014

• Decision Date: 14 June 2021
• Docket Number: No. 20-5014,20-5014
• Citation: 1 F.4th 792
• Parties: John William CHILDERS, Petitioner - Appellant, v. Scott CROW, Director, Respondent - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

1 F.4th 792

John William CHILDERS, Petitioner - Appellant,

v.Scott CROW, Director, Respondent - Appellee.

No. 20-5014

United States Court of Appeals, Tenth Circuit.

FILED June 14, 2021

Howard A. Pincus, Assistant Federal Public Defender, Office of the Federal Public Defender, Denver, Colorado (Virginia L. Grady, Federal Public Defender, Office of the Federal Public Defender, Denver, Colorado, with him on the briefs), appearing for Appellant.

Joshua R. Fanelli, Assistant Attorney General, Office of the Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma (Mike Hunter, Attorney General of Oklahoma, with him on the briefs), appearing for Appellee.

Before MORITZ, SEYMOUR, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner-Appellant John William Childers, who is incarcerated in Oklahoma, appeals the district court's denial of his pro se 28 U.S.C. § 2254 petition for a writ of habeas corpus. Childers was convicted of violating two provisions of Oklahoma's Sex Offenders Registration Act (SORA) for living within 2,000 feet of a school and for failing to update his address. He is serving two consecutive life sentences for these convictions. After seeking post-conviction relief in state court, Childers sought federal habeas relief, arguing, among other things, that his life sentences were the result of an impermissible retroactive application of SORA's provisions in violation of the ex post facto clause of the Oklahoma Constitution. The district court determined that Childers's § 2254 petition was time-barred and denied relief. This court, however, granted a Certificate of Appealability (COA), concluding that "[r]easonable jurists could debate whether ... Childers has advanced a colorable claim of actual innocence" to overcome the time-bar. COA at 6.

We conclude the district court's procedural ruling was correct and that Childers did not raise a claim of actual innocence before the district court or in his application for a COA. Accordingly, we disagree that a COA should have been granted. Even were this not the case, as explained further below, Childers's ex post facto arguments on appeal have changed substantially from those he presented in his COA application. We therefore decline to consider Childers's new arguments because they exceed the scope of the COA. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we vacate the COA and dismiss this matter.

I

In 1998, John William Childers was charged with three sex offenses that he committed in 1992 in Delaware County, Oklahoma. He pleaded guilty on March 23, 1999. In exchange for his guilty plea, Childers agreed to three consecutive 10-year prison sentences. But he was released on March 29, 2005 with the balance of his sentence to be served on probation.

Shortly after his release in March 2005, Childers registered under Oklahoma's Sex Offenders Registration Act (SORA), Okla. Stat. tit. 57, § 583(A). At that time, SORA prohibited sex offenders from living within 2,000 feet of a school, id. § 590, and required them to notify the Department of Corrections and local law enforcement if they changed addresses, id. § 584(D) (2004). In September and October 2007, Childers was charged with violating both § 590 and § 584(D), respectively, under the 2006 version of those provisions. Childers entered a blind guilty plea to both offenses on September 8, 2009. Because both offenses occurred after former convictions for two or more felonies, Childers was sentenced to life in prison on each conviction, with the sentences to run consecutively.

Childers subsequently filed a motion to withdraw his guilty plea, which the Delaware County District Court denied. On direct appeal, Childers alleged ineffective assistance of counsel, that his sentences were excessive, and that his plea was not knowing and voluntary. The Oklahoma Court of Criminal Appeals (OCCA) denied the petition for a writ of certiorari on September 23, 2010. Childers did not appeal this decision to the United States Supreme Court and so his conviction became final ninety days later on December 23, 2010, when the period to seek certiorari review expired.

On December 16, 2011, Childers filed his first application for post-conviction relief in state court. Childers raised several claims related to the factual basis for his guilty plea, double jeopardy, alleged conflicts of interest, and ineffective assistance of counsel. On June 17, 2013, the state court denied the application in a one-sentence order.

On July 29, 2013 Childers filed a second application for post-conviction relief in state court. This second application consisted entirely of a request for permission to file an unspecified document out of time due to a mailing error. The state court denied that application on March 20, 2014.

On August 15, 2014, Childers filed a third application for post-conviction relief in state court. In this application, Childers raised four claims: (1) that he did not have as many prior convictions as the state claimed and his life sentences were therefore improperly enhanced; (2) that his life sentences rested on an unconstitutional retroactive application of SORA; (3) that his guilty plea was not knowing and voluntary; and (4) that he received ineffective assistance of counsel. For his second claim (the only claim that remains in this appeal), Childers cited the Oklahoma Supreme Court's decisions in Starkey v. Okla. Dep't of Corr. , 305 P.3d 1004 (Okla. 2013), and Cerniglia v. Okla. Dep't of Corr. , 349 P.3d 542 (Okla. 2013), which together held that a retroactive application of SORA violated the ex post facto clause of the Oklahoma Constitution, and therefore the applicable version of SORA is the one in effect when a person is convicted of the underlying sex offense and becomes subject to SORA's provisions. Under these cases, Childers argued that the version of SORA that was in effect at the time of his conviction in 1999 sharply limited the maximum penalty to one year in prison for living within 2,000 feet of a school in violation of § 590 and five years in prison for failure to update an address in violation of § 584(D). Importantly, Childers's ex post facto argument did not directly attack his SORA convictions; he only argued that his life sentences were based on an unconstitutional retroactive application of SORA.¹

On September 22, 2016, the state court denied Childers's application because his claim that he did not have as many prior convictions as the state alleged had already been raised in his first application for post-conviction relief. Childers appealed and the OCCA affirmed on December 14, 2016. The OCCA summarized the application as only raising three, not four, claims: "that his sentences were wrongfully enhanced, [that] his pleas were not knowingly or intelligently made, and that counsel was ineffective." ROA at 153. The OCCA held that "[t]he issues of ineffective assistance of counsel and that his pleas were not knowing or voluntary were raised on direct appeal," and "the issue of improper enhancement was raised in [the] first post-conviction application." Id. at 154. "These issues are, therefore, barred by the doctrine of res judicata ." Id. The OCCA did not specifically address Childers's ex post facto argument but held that "all issues not raised in the direct appeal, which could have been raised, are waived." Id.

II

On July 4, 2017, Childers filed the § 2254 petition that is the subject of this appeal in the United States District Court for the Northern District of Oklahoma. He raised four claims: (1) his sentence constituted unconstitutional ex post facto punishment; (2) his sentence was contrary to a provision of Oklahoma law that governs multiple punishments for the same crime, Okla. Stat. tit. 21, § 11 ; (3) his guilty plea was not knowing or intelligent due to ineffective assistance of counsel; and (4) the Oklahoma courts had violated state law by making inadequate findings of fact with respect to his post-conviction motions. With respect to timeliness, Childers stated that he filed his § 2254 petition within one year of the Oklahoma courts resolving his most recent post-conviction application.

The district court dismissed Childers's petition as untimely under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d). Specifically, the district court found that Childers's conviction became final on December 23, 2010 after he failed to appeal the OCCA's decision, and that although Childers's first application for post-conviction relief in state court on December 16, 2011 tolled the one-year period to seek federal habeas relief, the clock re-started on July 18, 2013 (the day after the appeal period for Childers's first petition expired) and the window to file a federal habeas petition closed seven days later on July 25, 2013. The district court concluded that Childers's July 2017 petition was filed "well after the [ § 2254 ] deadline." ROA at 167.

The district court rejected Childers's argument that the statute of limitations began to run when the Oklahoma Supreme Court issued its decisions in Starkey and Cerniglia , because "only United States Supreme Court rulings can trigger the commencement of a new one-year period under 28 U.S.C. § 2244(d)(1)(C)." Id. at 168. The district court did not address any allegations of cause, prejudice, or actual innocence to overcome the time-bar because Childers did not raise any such claims.²

Childers sought, and we granted, a COA. Although the order granting the COA concluded that "[r]easonable jurists could not debate whether ... Childers’[s] § 2254 [petition] was timely," COA at 5, it determined that "[r]easonable jurists could debate whether ... Childers has advanced a colorable claim of actual innocence" to overcome the time-bar. Id. at 6. The COA acknowledged that this was a liberal construction of Childers's pro se application for a COA since he "did not use the phrase ‘actual innocence’ in his...