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    The United States Court of Appeals for the Tenth Circuit denied Dwight Dean Handy's application for a certificate of appealability and dismissed his appeal of the district court's denial of his petition for habeas corpus relief. The court determined that Handy's habeas petition was untimely under the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act because his previous state post-conviction relief petitions were either denied more than one year before he filed his federal habeas petition or were not properly filed in state court in a manner that could toll the limitations period.

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    Filed: Patrick Fisher

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    The United States Court of Appeals for the Tenth Circuit denied Dwight Dean Handy's application for a certificate of appealability and dismissed his appeal of the district court's denial of his petition for habeas corpus relief. The court determined that Handy's habeas petition was untimely under the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act because his previous state post-conviction relief petitions were either denied more than one year before he filed his federal habeas petition or were not properly filed in state court in a manner that could toll the limitations period.

    Original Description:

    Filed: 2001-05-02 Precedential Status: Non-Precedential Docket: 00-8067

    Original Title

    Handy v. Everett, 10th Cir. (2001)

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    The United States Court of Appeals for the Tenth Circuit denied Dwight Dean Handy's application for a certificate of appealability and dismissed his appeal of the district court's denial of his petition for habeas corpus relief. The court determined that Handy's habeas petition was untimely under the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act because his previous state post-conviction relief petitions were either denied more than one year before he filed his federal habeas petition or were not properly filed in state court in a manner that could toll the limitations period.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    43 views4 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit denied Dwight Dean Handy's application for a certificate of appealability and dismissed his appeal of the district court's denial of his petition for habeas corpus relief. The court determined that Handy's habeas petition was untimely under the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act because his previous state post-conviction relief petitions were either denied more than one year before he filed his federal habeas petition or were not properly filed in state court in a manner that could toll the limitations period.

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    of 4

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    MAY 2 2001

    PATRICK FISHER
    Clerk

    DWIGHT DEAN HANDY,


    Petitioner - Appellant,

    vs.

    VANCE EVERETT, in his official


    capacity as Warden, Wyoming
    Department of Corrections State
    Penitentiary; WYOMING
    ATTORNEY GENERAL,

    No. 00-8067
    (D.C. No. 99-CV-269)
    (D. Wyo.)

    Respondents - Appellees.
    ORDER AND JUDGMENT *
    Before EBEL, KELLY, and LUCERO, Circuit Judges. **
    Mr. Handy, an inmate appearing pro se, 1 seeks to appeal from the district
    courts denial of his petition for habeas corpus relief under 28 U.S.C. 2254.
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. This court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    *

    After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
    **

    As permitted by Johnson v. Avery, 393 U.S. 483, 490 (1969), another


    inmate assisted Mr. Handy in the preparation of this appeal.
    1

    Doc. 2. We grant the application to proceed in forma pauperis, but in light of Mr.
    Handys failure to make a substantial showing of the denial of a constitutional
    right, we deny his application for a COA and dismiss the appeal. Slack v.
    McDaniel, 529 U.S. 473, 482 (2000) (citation omitted).
    Because Mr. Handy filed the instant petition on December 22, 1999,
    subsequent to the effective date of the Antiterrorism and Effective Death Penalty
    Act of 1996, the limitations period set forth in 28 U.S.C. 2244(d)(1) applies to
    this action. Doc. 1. Mr. Handy entered a guilty plea on November 27, 1989, and
    his motion to withdraw the plea was denied on January 23, 1991. For prisoners,
    like Mr. Handy, whose convictions became final before April 24, 1996, the
    one-year statute of limitations begins to run on that date and ends on April 23,
    1997. Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998). We toll the
    one-year limitation period only for the time Mr. Handy had a properly filed
    application pending for state post-conviction relief. 28 U.S.C. 2244(d)(2);
    Hoggro, 150 F.3d at 1226.
    By April 24, 1996, Mr. Handy had filed, and the Wyoming state courts had
    denied, two petitions for post-conviction relief. The first petition was denied on
    June 8, 1993; the second on February 13, 1995. Under Wyoming law, a final
    order entered upon an application for post-conviction relief may be reviewed by
    the supreme court [of Wyoming] on writ of certiorari . . . pursuant to the
    -2-

    Wyoming Rules of Appellate Procedure. Wyo. Stat. Ann. 7-14-107 (Michie


    1995). A petition for a writ of review must be filed with the reviewing court
    within 11 days after entry of the order from which relief is sought. Wyo. R.
    App. P. 13.03(a) (1995) (emphasis added). On March 9, 1995, Mr. Handy filed
    for a Petition for Writ of Review in the trial court, but the court never acted on
    that petition. Petr Br. at 5 (emphasis added). Even if we overlook the possibility
    that Mr. Handys petition was untimely, cf. Kittles v. Rocky Mountain Recovery,
    Inc., 1 P.3d 1220, 1222-23 (Wyo. 2000) (holding that compliance with Rule
    13.03(a)s eleven-day deadline is not jurisdictional), we cannot ignore the fact
    that it was filed in the wrong court. Accordingly, the petition was not properly
    filed and therefore cannot operate to toll the limitations period. 28 U.S.C.
    2244(d)(1); see also Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999).
    Even if the petition had been properly filed, Mr. Handys tolling
    argument would fail nonetheless because the petition was not pending at any
    point during the relevant one-year period. The Wyoming Rules of Appellate
    Procedure provide that a certiorari petitionshall be deemed denied if the
    reviewing court does not accept review within 30 days from the date of the
    petition. Wyo. R. App. P. 13.03(c). Thus, even if we assume that Mr. Handys
    petition for a writ of review was properly filed on March 9, 1995, it was
    effectively denied on April 8, 1995, over one year before the limitations period
    -3-

    even began. Section 2244(d)(2) is therefore inapplicable and the instant petition
    was untimely under 2244(d)(1).
    Accordingly, we DENY Mr. Handys application for a COA and DISMISS
    the appeal. Mr. Handys motion to proceed in forma pauperis is GRANTED, as is
    his motion to supplement the record.
    Entered for the Court

    Paul J. Kelly, Jr.


    Circuit Judge

    -4-

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