Oneth B. Savery v. Hazel M. Peterson

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
ONETH B. SAVERY,
Petitioner - Appellant,
v.
HAZEL M. PETERSON,
Respondent - Appellee.
No. 22-3073
(D.C. No. 5:22-CV-03035-SAC)
(D. Kan.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
Petitioner Oneth Savery, a Kansas state prisoner proceeding pro se, seeks a
certificate of appealability (COA) from an order denying his 28 U.S.C. § 2254 petition as
untimely. Because reasonable jurists would not debate the district court’s ruling, we deny
Petitioner’s application and dismiss this matter.
In 2011, Petitioner was convicted in state court of several sexually-motivated
crimes. Petitioner filed the present § 2254 petition in February 2022, after unsuccessfully
challenging his convictions in state court on direct appeal and in post-conviction
proceedings. See State v. Savery, No. 106,116, 2013 WL 192555 (Kan. Ct. App. Jan. 11,
* This order is not binding precedent except under the doctrines of law of the case,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.
FILED
United States Court of Appeals
Tenth Circuit
June 8, 2022
Christopher M. Wolpert
Clerk of Court
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2013); Savery v. State, No. 116,266, 2017 WL 3001031 (Kan. Ct. App. July 14, 2017);
Savery v. State, No. 122,083, 2020 WL 6106477 (Kan. Ct. App. Oct. 16, 2020). The federal
district court denied Petitioner’s § 2254 petition as untimely, determining that he filed it
more than one year after his state-court direct appeal ended (excluding time spent pursuing
state post-conviction relief) and asserted no viable excuse for his untimeliness. See 28
U.S.C. § 2244(d)(1)(A), (d)(2). The district court also denied a COA.
Petitioner seeks a COA from this court so that he may appeal the order dismissing
his petition. See 28 U.S.C. § 2253(c)(1)(A). When, as here, the district court dismisses a
habeas petition on procedural grounds, we may grant a COA only if Petitioner shows that
reasonable jurists could debate (1) the district court’s procedural ruling and (2) the validity
of Petitioner’s constitutional claim. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Petitioner has failed to make a sufficient showing as to the first requirement.
At the outset, Petitioner does not dispute the district court’s determination that he
filed his petition months after the one-year statutory deadline expired. See 28 U.S.C.
§ 2244(d)(1)(A), (d)(2). Instead, he disputes the district court’s denial of equitable tolling.1
The “one-year statute of limitations is subject to equitable tolling but only ‘in rare and
exceptional circumstances.’” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)
(quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). “Equitable tolling of the
limitations period is available ‘when an inmate diligently pursues his claims and
1 The district court reviewed both the equitable-tolling and actual-innocence
doctrines for excusing an untimely § 2254 petition. Construing his pro se application for
COA liberally, see Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002), Petitioner only
appeals the district court’s denial of equitable tolling.
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demonstrates that the failure to timely file was caused by extraordinary circumstances
beyond his control.’” United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008)
(quoting Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)). Simple excusable
neglect, however, is insufficient. Gibson, 232 F.3d at 808.
To show why no reasonable jurist would disagree with the district court’s denial of
equitable tolling, it is helpful to outline why Petitioner’s § 2254 petition was untimely. The
one-year limitations period started the day after Petitioner’s “judgment became final by the
conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). Which was approximately
January 1, 2014—the day after his ninety-day deadline expired to seek review from the
Supreme Court of the United States. 2 Jimenez v. Quarterman, 555 U.S. 113, 119 (2009);
Sup. Ct. R. 13(1). The time continued to run until September 16, 2014, when Petitioner
filed his first state post-conviction motion. See 28 U.S.C. § 2244(d)(2). At that point,
approximately 258 days of the year had run, leaving 107 days remaining. The state post-
conviction proceedings continued until March 29, 2018, when the Kansas Supreme Court
denied a petition for review, at which point the one-year limitation period resumed.
Edwards v. Roberts, 479 F. App’x 822, 826 (10th Cir. 2012) (unpublished). The one-year
period expired approximately 107 days later, on July 14, 2018. Petitioner did not file
another state post-conviction motion until March 2019 and did not file the present § 2254
petition until February 2022—both long after the one-year limitations period expired.
2 The district court calculated the date as January 2, 2014. Mathematical precision
in this case is unnecessary.
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Petitioner fails to identify any action prior to February 2022 demonstrating his
diligent pursuit of federal habeas corpus relief. Nor does he identify any circumstance
beyond his control which prevented him from timely filing this matter. Petitioner argues
appellate counsel during his first state post-conviction proceedings frustrated his pursuit of
federal habeas corpus relief, but we fail to see why. Apparently, appellate counsel refused
to include a new issue on appeal, forcing Petitioner to file a second state post-conviction
motion. But Petitioner could have pursued that second motion (presumably) during or
shortly after the resolution of his first state post-conviction motion. He had, after all, 107
days after the conclusion of his first state post-conviction proceedings to file a second
motion in state court or file his federal § 2254 petition. He did neither. Petitioner’s other
arguments for equitable tolling are similarly unpersuasive. It is well established that
“ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse
prompt filing.” Marsh, 223 F.3d at 1220 (quoting Fisher v. Johnson, 174 F.3d 710, 714
(5th Cir. 1999)). And we do not see how the allegedly ineffective assistance of counsel on
direct appeal contributed to his untimely pursuit of federal habeas corpus relief. Because
Petitioner fails to allege specific facts showing that he diligently pursued his claims,
reasonable jurists could not debate the district court’s rejection of equitable tolling.
Accordingly, we DENY Petitioner’s application for COA and DISMISS the appeal.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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