Tillman v. Bigelow
672 F. App'x 803
| 10th Cir. | 2016Background
- Tillman was convicted of first-degree murder in 1983 and originally sentenced to death; state supreme court affirmed.
- In 2001 a state district court vacated his death sentence; Utah Supreme Court affirmed; Tillman was resentenced to life on December 23, 2005 and did not appeal the resentencing.
- Tillman filed a federal habeas petition under 28 U.S.C. § 2254 on March 29, 2013.
- The district court initially dismissed the petition as second-or-successive, but this court held the 2005 resentencing produced a new judgment (Magwood) and the district court then considered the petition on the merits.
- The district court dismissed the § 2254 petition as untimely under AEDPA’s one-year limitation; Tillman sought a certificate of appealability (COA) to appeal that dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under AEDPA § 2244(d) | Tillman challenged conviction merits; implied that timeliness should not bar review | Petition filed March 29, 2013, long after the one-year AEDPA deadline following finality of resentencing | Petition untimely; judgment became final Jan 23, 2005; last day to file Jan 23, 2006 |
| Statutory tolling for state collateral review | Tolling should apply because Tillman sought postconviction relief | First state postconviction petition after resentencing was filed in Dec 2009, after AEDPA period expired | No statutory tolling; postconviction filings after expiration do not toll |
| Equitable tolling based on actual innocence | Tillman invoked actual innocence to excuse delay | Must present new, reliable evidence showing it is more likely than not no reasonable juror would convict; Tillman produced no such new evidence | No equitable tolling; actual innocence gateway not satisfied |
| Certificate of appealability standard | COA should issue to allow appeal of timeliness ruling | No substantial showing of denial of a constitutional right; procedural bar plain and correctly applied | COA denied; no reasonable jurist could debate correctness of dismissal |
Key Cases Cited
- Magwood v. Patterson, 561 U.S. 320 (2010) (new judgment after resentencing can render later petition non-successive)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standard for certificate of appealability and procedural-default COA double hurdle)
- Schlup v. Delo, 513 U.S. 298 (1995) (actual-innocence gateway standard for habeas review)
- Fisher v. Gibson, 262 F.3d 1135 (10th Cir. 2001) (state postconviction petitions filed after AEDPA deadline do not statutorily toll the limitations period)
- Gibson v. Klinger, 232 F.3d 799 (10th Cir. 2000) (actual innocence may justify equitable tolling/gateway review)
- Frost v. Pryor, 749 F.3d 1212 (10th Cir. 2014) (requirement that new reliable evidence show it is more likely than not no reasonable juror would convict)