146 F. App'x 269

10th Cir.

2005

Jeffrey Lee MILBURN, Petitioner-Appellant, v. Reginald HINES, Respondent-Appellee.

No. 05-7007

United States Court of Appeals, Tenth Circuit

Aug. 17, 2005.

146 Fed. Appx. 269

cordingly, in the absence of a tolling event, Williams would have needed to file the instant petition for writ of habeas corpus within one year of April 24, 1996.

1. Statutory Tolling

As Williams points out, the limitation period can be tolled for a “properly filed application for state post-conviction or other collateral review.” 28 U.S.C. § 2244(d)(2). However, Williams did not adhere to the time limitations Oklahoma places upon state petitions for post-conviction relief, and Oklahoma courts denied his motion to file out of time. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001) (refusing to toll one year limitations period when petitioner‘s state post-conviction application was not filed until after expiration of the applicable one-year grace period.) Furthermore, the Supreme Court also recently held that “a petition filed after a time limit, and which does not fit within any exceptions to that limit, is no more ‘properly filed’ than a petition filed after a time limit that permits no exception.” Pace v. DiGuglielmo, — U.S. —, —, 125 S.Ct. 1807, 1812, 161 L.Ed.2d 669 (2005). Accordingly, we agree with the district court that no statutory tolling was appropriate.

2. Equitable Tolling

Williams is also not entitled to equitable tolling. Such relief is limited to “rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000). As the magistrate judge explained, to justify equitable tolling, the petitioner must demonstrate “that the failure to timely file was caused by extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220. Williams has failed to meet this standard.

3. Newly Recognized Constitutional Rights

Finally, Williams argues his one-year limitation period should begin from the “date on which [a new] 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.” 28 U.S.C. § 2244(d)(1)(C). However, we have clearly held that Blakely does not apply retroactively to sentences, such as Williams‘s, which were already final at the time Blakely was decided on June 24, 2004. See United States v. Price, 400 F.3d 844 (10th Cir.2005).

Accordingly, Williams‘s petition was correctly dismissed by the district court and we DENY COA and DISMISS his appeal. We GRANT Williams‘s motion to proceed in forma pauperis.

Jeffrey Lee MILBURN, Petitioner-Appellant, v. Reginald HINES, Respondent-Appellee.

No. 05-7007

United States Court of Appeals, Tenth Circuit

Aug. 17, 2005.

Jeffrey Lee Milburn, Lexington, OK, pro se.

Diane L. Slayton, Asst. Attorney Gen., Office of the Attorney General, Kellye G. Bates, Oklahoma Attorney General, Oklahoma City, OK, for Respondent-Appellee.

Before KELLY, O‘BRIEN, and TYMKOVICH, Circuit Judges.^*

ORDER DENYING CERTIFICATE OF APPEALABILITY^**

TYMKOVICH, Circuit Judge.

Appellant Jeffrey Lee Milburn, an Oklahoma state inmate appearing pro se, seeks a certificate of appealability (COA) allowing him to appeal the district court‘s order denying relief pursuant to 28 U.S.C. § 2254. Milburn was sentenced to 25 years for endeavoring to manufacture methamphetamine, two years for possession of methamphetamine, two years for possession of a firearm while committing a felony, and two years for the possession of a police scanner while committing a felony. The sentences were to run consecutively. In his petition for habeas corpus he raised three issues: (1) his convictions for manufacture and possession of methamphetamine violated prohibitions against “double punishment” and double jeopardy; (2) the evidence obtained against him was the result of an illegal search and seizure; and (3) the sentence imposed against him was overly excessive.

Analysis

The parties are familiar with the facts of the case and we need not repeat them here. It is well settled that a petitioner is not entitled to receive a COA unless he can make “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), by demonstrating the issues raised are debatable among jurists, a court could resolve the issues differently, or that the questions presented deserve further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Double Jeopardy. Milburn argues the court imposed double punishment by sentencing him twice for the same drug crime, in violation of the Double Jeopardy Clause. Milburn was sentenced once for endeavoring to manufacture methamphetamine and once for unlawful possession of methamphetamine. The Double Jeopardy Clause protects defendants against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Anderson v. Mullin, 327 F.3d 1148, 1153-54 (10th Cir.2003). “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Id. (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).

Milburn has not met this standard. The statutes under which he was convicted have different elements and require distinct and separate proof. As defined by the instructions put forth to the jury in this case, a conviction for endeavoring to manufacture methamphetamine requires only that the defendant exert physical and intellectual strength, or put forth a systematic effort, toward the attainment of manufacture of methamphetamine. No evidence of actual methamphetamine is necessary, and a conviction for this crime can be satisfied without physical evidence of methamphetamine. In contrast, a conviction for possession of methamphetamine requires actual possession of the substance and does not require proof that the possessor put forth an effort to manufacture it. Thus, each crime requires evidentiary proof that the other does not. Since Milburn was not sentenced twice for the same crime, but for different crimes altogether, resolution of this issue is not debatable under Slack and it does not merit the grant of a COA.

Illegal Search. Regarding Milburn‘s second claim, it is well settled that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment Claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” See Cannon v. Gibson, 259 F.3d 1253, 1259 (10th Cir.2001) (citing Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976)). In fact, Milburn appealed this issue to the Oklahoma Court of Criminal Appeals, which found that he had consented to the challenged search. See Milburn v. State, No. F-2000-100 (Okla.Crim.App., Feb. 7, 2001). Because we agree with the district court that Milburn received a full and fair hearing on his Fourth Amendment claim, this claim was properly denied and COA is not appropriate.

Excessive Sentence. Milburn‘s final claim is that his sentence was so excessive it violated the Constitution‘s prohibition against cruel and unusual punishment. The Supreme Court has held that the Eighth Amendment prohibits a sentence disproportionate to the severity of the crime. See Hawkins v. Hargett, 200 F.3d 1279, 1281 (10th Cir.1999) (citing Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)). Our case law on the subject has found a violation of the Eighth Amendment where there was “gross disproportionality” between a defendant‘s sentence and his crime. Hawkins, 200 F.3d at 1282. In determining the existence of “gross disproportionality,” we weigh a variety of factors, including the seriousness of the crime, the fit between the punishment and the crime, and the existence of legislative determinations of an appropriate sentence range. See id. at 1284-85.

Milburn received consecutive sentences of 25 years for his manufacturing conviction, and 2 years each for his other crimes. We find no disproportionality with respect to this sentence. First, Milburn‘s crimes were serious, and there is therefore a “fit between [the] punishment and [the] crime.” Id. at 1284. Second, his sentence is fully consistent with the applicable range under Oklahoma law. Finally, these ranges compare favorably with federal sentencing guidelines. In light of these benchmarks, we cannot say Milburn‘s punishment is grossly disproportionate to his crimes. We therefore agree with the district court that Milburn‘s sentence does not violate the Eighth Amendment.

Accordingly, we DENY the request for COA and DISMISS the case. We grant Milburn‘s motion to proceed in forma pauperis.

Notes

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.

This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders; nevertheless, an order may be cited under the terms and conditions of 10th Cir. R. 36.3.