Date: 05-29-2018

Case Style:

Case Number: 18-5003

Judge: Mary Beck Briscoe

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Northern District of Oklahoma (Tulsa County)

Plaintiff's Attorney: Pro Se

Defendant's Attorney: Jennifer Blakeney Welch

Description: Brian Keith Heuston seeks a Certificate of Appealability (COA) to appeal the
denial of his 28 U.S.C. § 2254 petition. We deny the COA.
I
In a 2008 jury trial in Oklahoma state court, Heuston was convicted of first
degree burglary, and assault and battery with intent to kill. Heuston was sentenced to
life imprisonment, to be followed by a consecutive 20-year sentence. Heuston filed a
direct appeal with the Oklahoma Court of Criminal Appeals (OCCA), which affirmed
his convictions on September 16, 2009. Heuston did not file a petition for certiorari
with the Supreme Court of the United States.
* This order is not binding precedent except under the doctrines of law of the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
May 29, 2018
Elisabeth A. Shumaker
Clerk of Court
2
In March 2010—six months after the OCCA affirmed his convictions—
Heuston hired attorney Jeffrey Box to pursue state post-conviction relief. App’x at
267. Heuston alleges Box’s performance was deficient over the next two years,
during which Box did not file a petition for post-conviction relief. In April 2012,
Heuston hired attorney Charles Fox to pursue post-conviction relief. Id. at 280–81.
Heuston had trouble communicating with Fox over the ensuing year, and Fox also
failed to file a petition for post-conviction relief. Eventually, on May 15, 2013, Fox
returned all of the relevant case files to Heuston. Id. at 267, 278.
Using those files, Heuston attempted to file a pro se petition for postconviction
relief on April 16, 2013, but the Oklahoma state court rejected the filing
because it did not comply with local rules. Id. at 267. After pursuing a writ of
mandamus with the OCCA, id. at 195–96, on May 9, 2014, Heuston mailed a
properly formatted petition for post-conviction relief and initiated a proceeding in
Oklahoma state court, id. at 39, and it was filed on June 9, 2014. Id. at 83. Following
an evidentiary hearing, the state court denied post-conviction relief on October 23,
2015. Id. at 175–79. On appeal, the OCCA affirmed the denial of post-conviction
relief on April 21, 2016. Id. at 181–87.
Heuston placed his 28 U.S.C. § 2254 petition in the prison mail on February
13, 2017. In the petition, he argues that he received ineffective assistance of counsel
at various stages of his trial, appeal, and post-conviction proceedings. Jason
Bryant—the warden who oversees Heuston at the James Crabtree Correctional Center
and the Respondent-Appellee in this case—moved to dismiss Heuston’s § 2254
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petition, arguing Heuston’s petition was not filed within 28 U.S.C. § 2244(d)(1)’s
one-year statute of limitations. The district court granted Bryant’s motion to dismiss,
denied Heuston a COA, and entered judgment. Id. at 331–45.
Nine days after the district court issued its ruling, Heuston filed a notice of
appeal. Id. at 346. After this court docketed the case, Heuston moved for a limited
remand because he wished to file a motion for relief from judgment under Federal
Rule of Civil Procedure 60(b). We denied the motion for limited remand. Doc.
#10536045 (citing Burgess v. Daniels, 576 F. App’x 809, 813 (10th Cir. 2014)).
Heuston then filed his Rule 60(b) motion in the district court. While that Rule
60(b) motion was pending before the district court, Heuston filed a combined
opening brief and application for a COA in this court. See generally Aplt. Br.
Before we could address the application for a COA on the denial of the § 2254
petition, the district court denied the Rule 60(b) motion on May 16, 2018, and denied
Heuston a COA on the issues raised in the Rule 60(b) motion.
II
To obtain a COA, Heuston must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court denied
Heuston’s claims on the merits, he “must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). As Heuston is litigating pro se, we
liberally construe his application for a COA. See Hall v. Scott, 292 F.3d 1264, 1266
(10th Cir. 2002).
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Heuston’s application for a COA depends on whether reasonable jurists could
debate that Heuston’s § 2254 petition was untimely. In the Antiterrorism and
Effective Death Penalty Act (AEDPA), Congress set out the timeliness rules for
habeas corpus proceedings. Specifically, 28 U.S.C. § 2244(d) states:
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of—
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for State postconviction
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.
28 U.S.C. § 2244(d).
The district court held that Heuston’s §2254 petition was untimely under
§ 2244(d)(1)(A). App’x at 335–36. Since he did not file a petition for certiorari on
direct appeal of his convictions, his underlying conviction became final on December
15, 2009—90 days after the OCCA’s decision affirming the convictions. See Locke
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v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (holding that under § 2244(d)(1)(A) a
conviction “is not final and the one-year limitation period for filing a federal habeas
petition does not begin to run until . . . after the time for filing a petition for certiorari
with the Supreme Court has passed” (internal quotation marks omitted)). The district
court thus determined the one-year period for § 2244(d)(1)(A) ran from December
16, 2009, to December 16, 2010. Heuston did not place his § 2254 petition in the
prison mail until February 13, 2017. The district court concluded this was untimely
by more than four years, even after applying § 2244(d)(2) and removing the period
between June 9, 2014, and April 21, 2016, when Heuston was pursuing postconviction
relief in the Oklahoma state court system.
Aside from the § 2244(d)(1)(A) analysis, the district court also held that its
application of § 2244(d)(1)(B) would not alter the outcome. As he does in his
application for a COA, Heuston argued AEDPA’s one-year period did not actually
begin to run on December 16, 2009, but was delayed until February 28, 2013, when
the OCCA issued Logan v. State, 293 P.3d 969 (Okla. Crim. App. 2013). Heuston
contended that prior to Logan, an Oklahoma state court would likely have held that
he waived his ineffective assistance of counsel arguments, and would have dismissed
his petition for post-conviction relief. According to Heuston, this constituted a statecreated
impediment and satisfied § 2244(d)(1)(B). Without addressing whether this
was a proper reading of Logan, the district court rejected this argument, stating that
“futility is not a valid justification for filing an untimely § 2254 petition.” App’x at
337 (quoting Head v. Wilson, 792 F.3d 102, 110 (D.C. Cir. 2015)). Further, the
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district court concluded that even if Logan presented an impediment to a state postconviction
filing, Heuston’s § 2254 petition would still be untimely. The OCCA
decided Logan on February 28, 2013. Heuston did not mail a properly formatted
state post-conviction petition until May 9, 2014. App’x at 39. Thus, the district
court concluded that, even if Heuston’s Logan argument were meritorious, the period
between when Logan was decided and the filing of his state post-conviction petition
still exceeded AEDPA’s one-year time period.
As he does in his application for a COA, Heuston also argued that the
misconduct of his attorneys, the deficiencies of the law library at his prison, and his
status as a pro se litigant who has no legal training should entitle him to equitable
tolling of AEDPA’s one-year time limit. The district court rejected these arguments.
As the district court noted, equitable tolling is proper when the petitioner
shows there are “specific facts” to establish “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way.” Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quotation omitted). Applying that
case law here, the district court first addressed Heuston’s argument that deficient
performance by Box and Fox should have equitably tolled the one-year statute of
limitations. The district court held that even if Heuston was entitled to tolling during
that 42-month period between when Heuston first contacted Box and when Fox
returned Heuston’s materials, Heuston’s § 2254 petition would still be untimely.
There were 358 days between May 15, 2013 (the date Heuston received his materials
from Fox) and May 9, 2014 (when Heuston mailed a properly formatted state post7
conviction petition and stopped the AEDPA clock pursuant to § 2244(d)(2)). This
left Heuston seven days to file a § 2254 petition after the completion of his state postconviction
proceedings. The OCCA denied post-conviction relief on April 21, 2016.
Heuston did not place his § 2254 petition in the prison mail until February 13, 2017.
The district court held that, even under this favorable view of the timeline, Heuston’s
§ 2254 petition was still untimely.
The district court also concluded any deficiencies of the prison law library
apply to all inmates and are not extraordinary enough to qualify for equitable tolling.
App’x at 341–42 (citing Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)). And the
district court held that Heuston’s “lack of legal training does not support equitable
tolling.” Id. at 342 (citing Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)).
Finally, the district court rejected Heuston’s argument that, because he may
have been experiencing an allergic reaction to medication at the time of his crimes,
he was actually innocent. The district court concluded that when a petitioner argues
he was intoxicated during the offense, he is making a “legal innocence” argument.
Id. at 342–43 (citing Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000)). The
district court held that, to meet AEDPA’s actual innocence exception, a petitioner
must argue that he is factually innocent. Id.; 5/16/18 Order denying Rule 60(b)
motion, D. Ct. Dkt. 36 at 3–4.
Heuston asks us to grant a COA to review all of these holdings. We conclude
that reasonable jurists could not debate the correctness of any of the district court’s
rulings. Slack, 529 U.S. at 484. Thus, we deny Heuston a COA.

Outcome: We DENY Heuston’s application for a COA and dismiss this case.

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