Phillips v. Addison, No. 11-5100 (10th Cir. 2011)
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Pro se prisoner Petitioner Eric Phillips applied for a certificate of appealability (COA) from the Tenth Circuit to challenge a district court's dismissal of his motion for post-conviction relief. After pleading guilty in Oklahoma state court to two counts each of first degree murder and unauthorized removal of a dead body, Petitioner was sentenced to life. He did not move to withdraw his plea or otherwise pursue direct appeal of his conviction. In late 2009, a state district court held a hearing to review Petitioner's sentence, but denied his request for modification. A member of Petitioner's family found him an attorney to challenge the outcome of the 2009 hearing. The attorney told Petitioner he believed Petitioner had a viable habeas claim, but miscalculated the filing deadline. Unable to actually prepare the claim himself, the attorney assisted Petitioner to file the habeas petition pro se. Petitioner filed the claim, but it was denied by the court as time-barred. Petitioner argued he was entitled to equitable tolling for the attorney's miscalculation. Finding that an inmate was entitled to statutory tolling of the limitations period when a properly filed application for post-conviction relief was pending, the Tenth Circuit found that Petitioner's application was indeed improperly filed. He was not therefore entitled to equitable tolling. The Court dismissed his application for a COA and dismissed his appeal.
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FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS TENTH CIRCUIT October 26, 2011 Elisabeth A. Shumaker Clerk of Court ERIC LEE PHILLIPS, Petitionerï Appellant, No. 11-5100 (D.C. No. 4:11-CV-00025-CVE-FHM) (N.D. Okla.) v. MIKE ADDISON, Warden, Respondentï Appellee. ORDER DENYING CERTIFICATE OF APPEALABILITY* Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges. Eric Lee Phillips, a state prisoner proceeding pro se, applies for a Certificate of Appealability ( COA ) to appeal the district court s dismissal of his 28 U.S.C. § 2254 petition. We deny a COA and dismiss his appeal. I After pleading guilty in Oklahoma state court to two counts each of first degree murder and unauthorized removal of a dead body, Phillips was sentenced to life * This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. imprisonment on March 3, 2009. He did not move to withdraw his plea or otherwise pursue direct appeal of his conviction. On November 16, 2009, a state district court judge held a hearing to review Phillips sentence but denied his request for modification. On February 22, 2010, Phillips filed for state post-conviction relief, arguing that his plea was not knowing and voluntary. The trial court denied his claim, and the Oklahoma Court of Criminal Appeals ( OCCA ) affirmed on July 13, 2010. On August 23, 2010, Phillips aunt sent an email to Stanley Monroe, an attorney who represented Phillips in the state post-conviction proceedings, inquiring about the next steps in Phillips case. Monroe replied that they could discuss a potential federal habeas petition in September. On December 15, Phillips aunt sent another email seeking an update. Monroe replied that he thought that Phillips had a viable federal habeas claim and that the deadline to file a habeas petition would be July 13, 2011 one year from the OCCA s denial of Phillips application for state post-conviction relief. However, Monroe indicated that he would not have time to prepare a petition for Phillips in the immediate future. He offered to assist Phillips with a pro se petition or to have Phillips wait until his workload lessened, probably in May. Phillips filed a pro se § 2254 petition on January 11, 2011. The district court determined that the deadline for filing that petition passed on August 20, 2010, dismissed the petition, and denied COA. In doing so, the court held that Phillips was entitled to statutory tolling for the time spent pursuing state post-conviction relief, but rejected Phillips argument that he was entitled to equitable tolling because of attorney Monroe s -2- misadvice. II Subject to limited exceptions, the Anti-Terrorism and Effective Death Penalty Act ( AEDPA ) imposes a one-year statute of limitations on habeas petitions. 28 U.S.C. § 2244(d)(1). The one-year period usually starts at the conclusion of direct review or the expiration of the time for seeking such review. § 2244(d)(1)(A). Phillips AEDPA clock began to run on March 14, 2009, ten days after he was sentenced. See Okla. Ct. Crim. App. R. 4.2(a) (defendant who pleads guilty is permitted ten days to seek withdrawal of plea and appeal). Thus without any tolling of the statute of limitations, the period for Phillips to file a federal habeas petition would have expired on March 14, 2010. However, an inmate is entitled to statutory tolling of the limitations period while a properly filed application for state post-conviction relief is pending. § 2244(d)(2). When Phillips filed his state post-conviction relief petition on February 22, 2010, he had 20 days remaining to file a federal petition. His state filing suspended the limitations period until the OCCA denied his petition on July 13, 2010. Thus, the limitations period for Phillips federal petition expired 20 days after that date, on August 2, 2010.1 1 In several unpublished cases, we have held that a request for judicial review of a sentence under Okla. Stat. tit. 22, § 982a a discretionary, non-appealable form of relief does not toll the AEDPA limitations period. See, e.g., Bohon v. Oklahoma, 313 F. App x 82, 84 n.1 (10th Cir. 2008) (unpublished); Nicholson v. Higgins, 147 F. App x 7, 8 n.2 (10th Cir. 2005) (unpublished). Phillips does not argue he should be entitled to Continued . . . -3- Phillips argues that he is also entitled to equitable tolling of the limitations period because of attorney Monroe s erroneous advice that a federal habeas petition would not be due until July 13, 2011. Equitable tolling is only available when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control. Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Because habeas petitioners have no constitutional right to counsel, [a]ttorney miscalculation is simply not sufficient to warrant equitable tolling without more. Lawrence v. Florida, 549 U.S. 327, 336-37 (2007). When attorney error rises to the level of egregious misconduct, however, we have allowed for equitable tolling. See Fleming v. Evans, 481 F.3d 1249, 1255-57 (10th Cir. 2007). In Fleming, for example, we concluded that equitable tolling could be warranted because a prisoner s attorney failed to file a petition despite repeatedly assuring his client that he was doing so. Id. Unacceptable though attorney Monroe s mistake may be, it is a negligent miscalculation of the sort that our precedents deem unworthy of equitable tolling. Unlike the unscrupulous attorney in Fleming who intentionally deceived his client into believing he was filing a petition, Monroe simply provided incorrect advice. Further, it is not clear that Monroe s error caused Phillips petition to be untimely: The only evidence Phillips has provided of Monroe s misadvice are emails from August 24 and December 15, 2010 after the AEDPA deadline had already expired. Thus, Phillips has not shown that tolling based on his § 982a motion, nor would the single day in which that motion was pending affect our conclusion as to timeliness. -4- Monroe s negligence impeded a timely filing. Accordingly, the district court correctly concluded that Phillips is not entitled to equitable tolling. III We DENY a COA and DISMISS the appeal. Entered for the Court Carlos F. Lucero Circuit Judge -5-
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