Childers v. Crow
1f4th792
| 10th Cir. | 2021Background
- John William Childers pleaded guilty in 1999 to 1992 sex offenses and was released on probation in 2005; he registered under Oklahoma’s SORA after release.
- In 2007 he was charged under the 2006 SORA for (1) living within 2,000 feet of a school (§590) and (2) failing to update his address (§584(D)); he entered blind guilty pleas in 2009 and received two consecutive life sentences as a recidivist.
- Childers sought state post-conviction relief; in a 2014 application he relied on the Oklahoma Supreme Court’s Starkey and Cerniglia decisions (2013) that limited retroactive application of SORA under the Oklahoma Constitution.
- He filed a federal habeas petition under 28 U.S.C. §2254 in 2017; the district court dismissed it as untimely under AEDPA’s one-year statute of limitations and did not address actual innocence or tolling because Childers had not raised those below.
- This court initially granted a COA, construing Childers’ pro se filings liberally as possibly raising a colorable actual-innocence gateway; on further review the majority vacated the COA and dismissed, holding Childers did not present an actual-innocence claim below and that new theories on appeal exceed the COA’s scope.
- Judge Seymour dissented, arguing the petition did attack the convictions, that the district court should have been required to liberally construe and evaluate an actual-innocence gateway based on intervening state-law decisions, and that remand or COA expansion was warranted.
Issues
| Issue | Childers’ Argument | State/Respondent’s Argument | Held |
|---|---|---|---|
| Timeliness under AEDPA §2244(d) | Petition timely because it was filed within one year of state courts resolving latest post-conviction application and/or excused by actual innocence based on intervening Oklahoma decisions | AEDPA one-year period expired in 2013; Starkey/Cerniglia do not restart AEDPA clock; petition untimely | District court correctly held petition untimely; appellate majority affirms dismissal on procedural grounds |
| Actual-innocence gateway to overcome time-bar | Intervening Oklahoma decisions (Starkey, Cerniglia) show retroactive application of later SORA made his 2009 convictions void — this is a Bousley-type legal innocence/actual-innocence claim | No actual-innocence claim was fairly presented to the district court; petitioner raised sentence challenge not conviction invalidity | Majority: Childers waived an actual-innocence claim by not raising it below; COA should not have been granted on that basis |
| Scope of the Certificate of Appealability (COA) | COA should permit consideration of ex post facto challenges to convictions because initial COA language suggested actual innocence could be debated | COA must be limited to issues reasonably presented below; new or altered theories on appeal exceed COA scope | Majority: Vacated COA and declined to consider new ex post facto theories that were not presented below |
| Liberal construction of pro se pleadings / preservation | Pro se petition should be liberally construed to include an actual-innocence gateway and supporting legal-innocence theory; district court erred by not evaluating it | Liberal construction has limits; courts will not rewrite petitions or entertain claims not presented below | Majority: Pro se liberal-construction does not extend to supplying or creating claims not presented; dissent: petition reasonably read to challenge convictions and required inquiry |
Key Cases Cited
- McQuiggin v. Perkins, 569 U.S. 383 (2013) (actual-innocence gateway can overcome AEDPA time bar)
- Slack v. McDaniel, 529 U.S. 473 (2000) (COA standards when petition denied on procedural grounds)
- Miller-El v. Cockrell, 537 U.S. 322 (2003) (COA issuance principles)
- Schlup v. Delo, 513 U.S. 298 (1995) (standard for gateway actual-innocence claims)
- Bousley v. United States, 523 U.S. 614 (1998) (intervening change in law can support legal-innocence claim)
- Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999) (court may not rewrite pro se petition to add unpresented claims)
- Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012) (de novo review for claims not adjudicated on the merits in state court)
- Stouffer v. Trammell, 738 F.3d 1205 (10th Cir. 2013) (arguments not raised below are waived on appeal)
- Owens v. Trammell, 792 F.3d 1234 (10th Cir. 2015) (habeas arguments not raised in petition are waived)
- Eaton v. Pacheco, 931 F.3d 1009 (10th Cir. 2019) (COA scope limits appellate consideration)