Stouffer v. Trammell Stouffer v. Trammell (10th Cir., 2014)

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BIGLER JOBE STOUFFER, II, Petitioner - Appellant, v. ANITA TRAMMELL, Warden, Respondent - Appellee.

No. 14-7006

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

FILED: May 13, 2014

Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.

        Petitioner and appellant, Bigler Jobe Stouffer, II, a state prisoner proceeding pro se, seeks a Certificate of Appealability ("COA") to enable him to appeal the district court's dismissal of his amended petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Having concluded that he fails to meet the standards for issuance of a COA, we deny Mr. Stouffer's request for a COA and dismiss this matter.

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        In 1985, Mr. Stouffer was convicted of first degree murder and of shooting with intent to kill. He was sentenced to death on the first conviction and life imprisonment on the second. See Stouffer v. Reynolds 168 F. 3d 1155 1158 (10th Cir. 1999). In 2000, we affirmed the grant of habeas relief. See Stouffer v. Reynolds 214 F. 3d 1231 1232 (10th Cir. 2000). Mr. Stouffer was retried in February 2003 and a jury again found him guilty of first degree murder and shooting with intent to kill. See Stouffer v. State 147 P.3d 245 255-56 (Okla. Crim. Crim. App. 2006). He was sentenced to death for the first offense and a consecutive sentence of 100 years' imprisonment for the second offense. He is currently awaiting execution.

        The district court below characterized Mr. Stouffer's claims in the instant habeas petition as "vague, unclear and repetitive" but discerned the following grounds for Mr. Stouffer's petition:

The court further noted:

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Opinion & Order at 1-2; R. Vol. 1 at 62-63.

        Mr. Stouffer apparently seeks reversal and expungement of all prior enforcement of Okla. Crim. Stat. tit § 138/OP-060107 against him.

        The Warden/Respondent sought dismissal of the petition on various grounds, one of which was that Mr. Stouffer's petition was filed beyond the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d):

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28 U.S.C. § 2244(d)(1)(D). As the district court correctly noted, the one-year period also applies to § 2241 habeas corpus actions. Burger v. Scott 317 F. 3d 1133 1138 (10th Cir. 2003).

        Mr. Stouffer claims he is entitled to relief because he has been sentenced to death and, therefore, the state statute concerning earned credits does not apply to him. The district court determined that "pursuant to 28 U.S.C. § 2244(d)(1)(D), the limitations period began to run when he discovered or could have discovered the factual predicate of his claim. Mr. Stouffer asserts in his amended petition that he has been raising this issue in litigation as far back as 2006. " Opinion & Order at 2; R. Vol. 1 at 63 (citing Amended Habeas Petition at 2; R. Vol. 1 at 20). Accordingly, "based on his own statement, Mr. Stouffer's one-year limitations has expired. " Id.

        The district court also determined that, because Mr. Stouffer did not diligently pursue his claim, he was not entitled to application of the doctrine of equitable tolling. Equitable tolling is available only in "rare and exceptional circumstances. " Laurson v. Leyba 507 F. 3d 1230 1232 (10th Cir. 2007). A petitioner carries the burden to show that equitable tolling is appropriate because (1) "he has been pursuing his rights diligently, " and (2) "some extraordinary circumstance stood in his way. " Lawrence v. Florida 549 U.S. 327 336 (2007).

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"Failure to timely file must be caused by extraordinary circumstances beyond his control, " Burger 317 F. 3d at 1141, and "an inmate bears a strong burden to show specific facts to support his claim of extraordinary circumstances and due diligence. " Yang v. Archuleta 525 F. 3d 925 928 (10th Cir. 2008). The district court dismissed this argument as follows:

Opinion & Order at 3; R. Vol. 1 at 64.

        A state prisoner must obtain a COA before pursuing a habeas petition. Allen v. Zavaras 568 F. 3d 1197 1199 (10th Cir. 2009); 28 U.S.C. § 2253(c)(1)(A). A COA will issue "only if the applicant has made a substantial showing of the denial of a constitutional right, " which is accomplished when an

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applicant shows "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. " Slack v. McDaniel 529 U.S. 473 484 (2000) (quotation omitted). An applicant denied habeas relief on procedural grounds "must also show 'that jurists of reason would find it debatable . . . whether the district court was correct in its procedural ruling. '" Coppage v. McKune 534 F. 3d 1279 1281 (10th Cir. 2008 ) (quoting Slack 529 U.S. at 484).

        As indicated, the district court thoroughly explained why Mr. Stouffer's petition is time-barred and not eligible for equitable tolling. No reasonable jurist could dispute the propriety of that conclusion.

        For the foregoing reasons, we DENY Mr. Stouffer a COA and DISMISS this matter.

        ENTERED FOR THE COURT

        Stephen H. Anderson        Circuit Judge

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         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.

         Mr. Stouffer refers to Okla. Crim. Stat. tit. 57, § 138(A), which provides in pertinent part: "Every inmate of a state correctional institution shall have their term of imprisonment reduced monthly, based upon the class level to which they are assigned . . . . Each earned credit is equivalent to one (1) day of incarceration . . . . " The statute directs the Oklahoma Department of Corrections ("ODOC") to "develop a written policy and procedure whereby inmates shall be assigned to one of four class levels . . . . " Okla. Crim. Stat. tit. 57, § 138(B). In one of the many prior proceedings in our court involving Mr. Stouffer, we described Mr. Stouffer's situation as follows: "The ODOC has developed an internal regulation pursuant to which inmates are assigned to a class level which determines the rate at which credits are earned and the degree to which privileges are afforded. See OP-060107(II). On August 1, 2007, Stouffer was demoted from Level 4 to Level 1. He claims this demotion resulted in the loss of earned credits and the loss of his ability to earn such credits. " Stouffer v. Workman No. 09-7029, slip op. at 2-3 (10th Cir. Oct. 8, 2009) (unpublished).

         The Warden/Respondent made additional arguments in support of her motion to dismiss. She argued that Mr. Stouffer was not properly before the court, inasmuch as he was not challenging the legality of his incarceration and was therefore not entitled to habeas relief, and she argued that his petition was an improper successive one. We need not address those arguments, but simply note that Mr. Stouffer's petition faced many barriers.

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         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.

         Mr. Stouffer refers to Okla. Crim. Stat. tit. 57, § 138(A), which provides in pertinent part: "Every inmate of a state correctional institution shall have their term of imprisonment reduced monthly, based upon the class level to which they are assigned . . . . Each earned credit is equivalent to one (1) day of incarceration . . . . " The statute directs the Oklahoma Department of Corrections ("ODOC") to "develop a written policy and procedure whereby inmates shall be assigned to one of four class levels . . . . " Okla. Crim. Stat. tit. 57, § 138(B). In one of the many prior proceedings in our court involving Mr. Stouffer, we described Mr. Stouffer's situation as follows: "The ODOC has developed an internal regulation pursuant to which inmates are assigned to a class level which determines the rate at which credits are earned and the degree to which privileges are afforded. See OP-060107(II). On August 1, 2007, Stouffer was demoted from Level 4 to Level 1. He claims this demotion resulted in the loss of earned credits and the loss of his ability to earn such credits. " Stouffer v. Workman No. 09-7029, slip op. at 2-3 (10th Cir. Oct. 8, 2009) (unpublished).

         The Warden/Respondent made additional arguments in support of her motion to dismiss. She argued that Mr. Stouffer was not properly before the court, inasmuch as he was not challenging the legality of his incarceration and was therefore not entitled to habeas relief, and she argued that his petition was an improper successive one. We need not address those arguments, but simply note that Mr. Stouffer's petition faced many barriers.

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