Gibson v. Klinger

• Decision Date: 14 November 2000
• Docket Number: No. 99-5071,99-5071
• Citation: 232 F.3d 799
• Parties: (10th Cir. 2000) RONNIE LEE GIBSON, Petitioner - Appellant, v. KEN KLINGER, Respondent - Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 799

232 F.3d 799 (10th Cir. 2000)

RONNIE LEE GIBSON, Petitioner - Appellant, v. KEN KLINGER, Respondent - Appellee.

No. 99-5071

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 14, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D. Ct. No. 98-CV-370-K)

[Copyrighted Material Omitted] Steven Michael Presson (Robert Wade Jackson, with him on the brief), Jackson & Presson, P.C., Norman, Oklahoma, for Petitioner-Appellant.

James F. Kelly, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, with him on the brief), Office of the Attorney General of Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee.

Before TACHA, HOLLOWAY, and BALDOCK, Circuit Judges.

TACHA, Circuit Judge.

Defendant Ronnie Lee Gibson appeals the district court's dismissal of his petition for a writ of habeas corpus as untimely under the one-year limitations period provided by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. 2244(d)(1). In an order dated May 25, 2000, we issued a certificate of appealability on the issue of the timeliness of Mr. Gibson's federal habeas petition. We therefore exercise jurisdiction pursuant to 28 U.S.C. 2253(a) and affirm.

I. Background

The relevant procedural facts are as follows. On December 16, 1975, following the entry of a guilty plea, an Oklahoma district court sentenced Mr. Gibson to life imprisonment for first-degree manslaughter. On December 7, 1995, Mr. Gibson filed a petition for state post-conviction relief, which the Oklahoma court denied on April 25, 1996. Because he did not appeal the judgment within the thirty-day time period required under Oklahoma law, his time to appeal the district court's denial expired on May 25, 1996. Okla. Stat. tit. 22, 18 app. rule 5.2(C)(2). On June 13, 1996, he filed a motion for leave to appeal out of time, which the state district court granted that same day. Mr. Gibson did not, however, continue to pursue his appeal out of time, choosing to wait until November 12, 1996, when he again filed a motion for leave to appeal out of time with the state district court. The district court entered an order granting his motion for leave to appeal out of time on February 20, 1997. Mr. Gibson then filed a motion for leave to appeal out of time with the Oklahoma Court of Criminal Appeals pursuant to Okla. Stat. tit. 22, 18 app. rule 2.1(E)(1). On April 22, 1997, the appellate court granted the request, and he filed an application for an appeal out of time on May 15, 1997. The Oklahoma Court of Criminal Appeals affirmed the district court's denial of state post-conviction relief on June 25, 1997.

Mr. Gibson did not file a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 in the federal district court until May 20, 1998. The court dismissed his petition as untimely under the one-year statute of limitations for federal habeas petitions, 28 U.S.C. 2244(d)(1), and denied his request for a certificate of appealability. Mr. Gibson then appealed the district court's denial of his petition and certificate of appealability, arguing the statute of limitations should be tolled from April 25, 1996, when the state district court denied his application for post-conviction relief until June 25, 1997, when the state appellate court affirmed the district court's denial. In an order issued May 5, 2000, we granted a certificate of appealability to address the issue of whether and to what extent the one-year limitations period should be tolled under 28 U.S.C. 2244 (d)(2) in light of the state appellate court's grant of an appeal out of time.

II. Jurisdiction and Standard of Review

We must first address whether we have properly acquired jurisdiction of this appeal. In the order dated May, 25, 2000, we granted a certificate of appealability (COA) on the procedural tolling question and did not address Mr. Gibson's substantive, constitutional claims. Around the time that we issued the order, the Supreme Court decided Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595 (2000), providing further guidance on when a certificate of appealability should issue if a district court dismisses a habeas petition for procedural reasons: "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 1604. In creating this two-step inquiry, the Supreme Court also noted that each step is "part of a threshold inquiry," which must be satisfied before the court of appeals hears the appeal. Id.

We granted a COA to address the timeliness of Mr. Gibson's petition under AEDPA and did not determine whether the petition debatably presents a "valid claim of the denial of a constitutional right." Before proceeding to the limitations issue, we must therefore review the constitutional claims. Because the district court did not address these claims and the parties have not briefed them on appeal, our review is limited. We will only take a "quick" look at the federal habeas petition to determine whether Mr. Gibson has "'facially allege[d] the denial of a constitutional right.'" Jefferson v. Welborn, 222 F.3d 286, 289 (7th Cir. 2000). After reviewing the habeas petition, we conclude that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack, 120 S. Ct. at 1604; Adams v. LeMaster, 223 F.3d 1177, 1179 (10th Cir. 2000). Specifically, we find at least one of Mr. Gibson's claims--that a material breach of his plea agreement constitutes a violation of his constitutional right to due process--debatably states a valid constitutional claim. United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994) ("If the government breaches express or implied terms of a plea agreement, a violation of due process occurs."). Having established both prong's of Slack's threshold inquiry, we proceed to the merits of the appeal.

Because we must answer a question of law, our review of the district court's denial is de novo. Rowe v. LeMaster, 225 F.3d 1173, 1174 (10th Cir. 2000); Adams, 223 F.3d at 1179.

III. Discussion

AEDPA establishes a one-year statute of limitations for federal habeas petitions. 28 U.S.C. 2244(d)(1). Because Mr. Gibson's conviction was not final before AEDPA's enactment, the one-year statute of limitations does not begin to run until AEDPA's effective date, April 24, 1996. Hoggro v. Boone, 150 F.3d 1223, 1225-26 (10th Cir. 1998) (recognizing judicially created grace period); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997) (creating grace period beginning on AEDPA's effective date). Hence, without tolling of the limitations period, Mr. Gibson brought his federal habeas petition, filed May 20, 1998, more than one year too late.

To determine whether the federal habeas petition was timely, we must construe the language of AEDPA's tolling provision, 28 U.S.C. 2244(d)(2): "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." Based on this provision, we recognize that the limitations period, which began running on April 24, 1996, was clearly tolled for one day until the state court denied the properly filed application for post-conviction relief on April 25, 1996. We then reach three conclusions: (1) the limitations period was tolled for the thirty days during which Mr. Gibson could have filed an appeal of the state court's denial of his application for post-conviction relief; (2) the state court's decision to grant an appeal out of time and decide the case on the merits does not transform all of Mr. Gibson's state filings into one "properly filed" application; and (3) the limitations period was tolled again on November 12, 1996, when Mr. Gibson filed his second motion for leave to appeal out of time in the state district court and did not resume running until June 25, 1997, when the state appellate court affirmed the state district court's April 1996 denial of Mr. Gibson's application for post-conviction relief. We also note that Mr. Gibson is not entitled to equitable tolling.

A. Tolling During the Thirty-Day Statutory Time Period

In Rowe v. LeMaster, we tolled the one-year statute of limitations during the thirty-day statutory period in which a petitioner could have sought review of a state court denial of a post-conviction application.¹ 225 F.3d at 1174. Because we focused our inquiry on another tolling question, we did not specifically analyze this issue. Thus, we hold today that, regardless of whether a petitioner actually appeals a denial of a post-conviction application, the limitations period is tolled during the period in which the petitioner could have sought an appeal under state law.

This conclusion is consistent with our decision in Barnett v. LeMaster, interpreting when a post-conviction application is "pending" for tolling purposes. 167 F.3d 1321, 1323 (10th Cir. 1999). Noting our interpretation followed the generally accepted definition of the term, we construed "pending" broadly "to encompass all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application." Id. Applying this definition, we tolled the limitations period from the time the petitioner filed a state post-conviction application until the state supreme court denied certiorari, including statutory grace periods for appeal. Id.

Other circuits have also recognized...