Opinion · Court of Appeals for the Tenth Circuit
May v. Workman
339 F.3d 1236
- Type
- Opinion
- Court
- Court of Appeals for the Tenth Circuit
- Jurisdiction
- Federal
- Date
- 2003-08-15
- Topic
- general
holding that district court properly determined that AEDPA limitations period was not tolled during pendency of various motions for transcripts and petitions for writs of mandamus relating to those motions | concluding that the district court “correctly determined that the limitations period should not be tolled during the pendency of [the petitioner’s] various motions for transcripts and petitions for writs of mandamus relating to those motions” | noting that AEDPA’s one-year period “is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period” (emphasis added) | noting that AEDPA’s one-year period “is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period” (emphasis added) | noting that AEDPA’s one-year period “is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period” (emphasis added) (citing 28 U.S.C. § 2244(d)(2) | noting that AEDPA’s one-year period “is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period” (emphasis added) (citing 28 U.S.C. § 2244(d)(2) | noting that AEDPA’s one-year period “is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period” (emphasis added) (citing 28 U.S.C. § 2244(d)(2) | noting that AEDPA’s one-year period “is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period” (emphasis added) (citing 28 U.S.C. § 2244(d)(2) | noting that AEDPA’s one-year 6 period “is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period” (emphasis added) (citing 28 U.S.C. § 2244(d)(2) | noting that AEDPA’s one- year period “is tolled or suspended during the pendency of a state application for post- conviction relief properly filed during the limitations period” (emphasis added) (citing 28 U.S.C. § 2244(d)(2) | noting that AEDPA’s one-year period “is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period” (emphasis added) (citing 28 U.S.C. § 2244(d)(2)). 3 III. Tolling pursuant to 2244(d)(1)(D | noting that AEDPA’s one-year period “is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period” (emphasis added) (citing 28 U.S.C. § 2244(d)(2)). Tolling pursuant to 28 § 2244(d)(1)(C | noting that AEDPA’s one-year period “is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period” (emphasis added) (citing 28 U.S.C. § 2244(d)(2)). C. Impediment Under 28 U.S.C. § 2244(d)(1)(B | noting that AEDPA’s one-year period “is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period” (emphasis added) (citing 28 U.S.C. § 2244(d)(2)). C. Tolling Pursuant to 28 U.S.C. § 2244(d)(1)(C | applying the § 2244(d) one-year limitalions period to a § 2254 habeas petition | agreeing with federal district court “that the limitations period should not be tolled during the pendency of [petitioner’s] various motions for transcripts and petitions for writs of mandamus relating to those motions” | agreeing with federal district court “that the limitations period should not be tolled during the pendency of [petitioner’s] various motions for transcripts and petitions for writs of mandamus relating to those motions” | agreeing with federal district court “that the limitations period should not be tolled during the pendency of [petitioner’s] various motions for transcripts and petitions for writs of manda
Citator
- Cited by
- 39 opinions
John May, a state prisoner appearing pro se, seeks a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny his request for a COA and dismiss the appeal.
*1237 On December 4, 1994, Mr. May was convicted of first degree murder in Oklahoma state court and sentenced to life imprisonment without parole. His conviction was affirmed by the Oklahoma Court of Criminal Appeals on January 9, 1996, and on April 8, 1996, the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court expired, thus making his conviction final. As detailed in the district court’s order, Mr. May filed a series of motions between 1997 and 2002 requesting transcripts at public expense and mandamus relief regarding his motions for transcripts. All of these motions were denied, as were Mr. May’s various appeals. Mr. May subsequently filed his federal petition for a writ of habe-as corpus on November 15, 2002.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Mr. May had until April 24, 1997 to file a federal habeas petition. 28 U.S.C. § 2244(d)(1); Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir.2001) (holding that when a conviction became final before AEDPA’s effective date of April 24, 1996, a petitioner has one year after AEDPA’s enactment to file a § 2254 petition).
Mr. May filed his federal habeas petition on November 15, 2002, long after the AEDPA limitations period had expired. The district court held that Mr. May’s federal habeas petition was time barred and that equitable tolling was not warranted. Accordingly, the district court dismissed the habeas petition and denied a COA.
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA can issue only “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of -his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 123 S.Ct. at 1034, 123 S.Ct. 1029. After careful review of the record, we conclude the requirements for issuance of a COA have not been met.
The one-year period of limitation for filing a federal habeas petition is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period. § 2244(d)(2). As established above, for purposes of § 2244(d)(1)(A), Mr. May’s conviction became final on April 8, 1996. The district court correctly determined that the limitations period should not be tolled during the pendency of Mr. May’s various motions for transcripts and petitions for writs of mandamus relating to those motions. See Rec. vol. I, doc. 10 at 4-5 (Dist. Ct. Order, filed Mar. 6, 2003) (citing Osborne v. Boone, No. 99-7015, 176 F.3d 489, 1999 WL 203523, at *1 (10th Cir. April 12, 1999) (unpublished disposition) (holding that “attempts to obtain trial records and transcripts at public expense are not collateral proceedings which would result in the tolling of the filing period under § 2244(d)(2)”) (citing Hoggro v. Boone, 150 F.3d 1223, 1226-27 (10th Cir.1998))).
Mr. May filed his petition almost five years after the expiration of the one-year limitations period set forth in 28 U.S.C. § 2244(d)(1)(A), without a showing of entitlement to either statutory tolling or equitable tolling. We have carefully reidewed Mr. May’s brief, the district court’s order, and the material portions of the record, and conclude that Mr. May has failed to raise a debatable issue as to whether his petition was improperly dismissed as time-barred. Accordingly, we DENY Mr. *1238 May’s application for a COA, and we DISMISS the matter.