                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                        April 23, 2008
                      UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                  TENTH CIRCUIT                        Clerk of Court



 WILLIAM HENRY SHERRATT,

                 Petitioner-Appellant,                    No. 07-4228
          v.                                            District of Utah
 CLINT FRIEL, Warden,                            (D.C. No. 2:05-CV-0885-TC)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON and McCONNELL, Circuit Judges.


      William Henry Sherratt was convicted in Utah state court of two counts of

first-degree felony rape of his teenaged step-niece. After a state appeal and post-

conviction proceedings, Mr. Sherratt filed a petition in federal district court for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied his

petition as time-barred under the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), and Mr. Sherratt now seeks a certificate of appealability

(COA) that would allow him to appeal from that denial. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that the district court’s procedural ruling




      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
was correct, we deny his request for a COA and dismiss the appeal. 28 U.S.C. §

2253(c)(2).

                                     I. BACKGROUND

      According to the testimony at trial, beginning in 1994 and continuing

through 1995 Mr. Sherratt used his position of special trust as the victim’s step-

uncle to seduce and repeatedly have sexual intercourse with her. The victim,

aged only fourteen and fifteen years at the time of the offenses, did not come

forward with her story until 1999. On June 1, 1999, an information was filed

against Mr. Sherratt in Utah district court in Iron County. As amended, it charged

him with two counts of rape in violation of Utah Code § 76-5-402. After a jury

trial on March 22 and 23, 2000, Mr. Sherratt was convicted on both counts, and

he was sentenced on May 23 to concurrent terms of imprisonment for five years

to life in the state penitentiary.

      Mr. Sherratt sought direct review in the Utah Court of Appeals, but the

judgment was affirmed on June 28, 2001. State v. Sherratt, No. 20000532-CA,

2001 WL 723251 (Utah Ct. App. June 28, 2001). He subsequently filed two

petitions for writs of habeas corpus in the Utah courts. Those petitions were

denied. On November 7, 2005, he filed the instant petition for a writ of habeas

corpus in the United States District Court for the District of Utah. The district

court found the petition untimely under AEDPA.




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                                  II. DISCUSSION

      A COA is a necessary prerequisite to appeal the denial of a petition for

relief under 28 U.S.C. § 2254, and is available “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(1)(A)(2). Where, as here, the district court has dismissed a habeas

petition on procedural grounds, a COA may issue only when “the prisoner shows,

at least, that jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

                      A. Time Elapsed and Statutory Tolling

      28 U.S.C. § 2244(d), enacted as a part of AEDPA, Pub. L. No. 104-132, §

101, 110 Stat. 1214, 1217 (1996), provides a one-year time limit for filing a

federal habeas petition upon a state conviction. It explains when the clock begins

to tick and what circumstances stay its gears. AEDPA’s clock starts running

when (A) direct appellate review ends, (B) any state-created impediment to filing

is lifted, (C) a retroactive constitutional right is first recognized, or (D) the basis

for the claim was reasonably discoverable—whichever comes last. 28 U.S.C. §

2244(d). Mr. Sherratt was convicted on March 23, 2000 and sentenced on May

23, 2000. The state Court of Appeals affirmed on June 28, 2001. The deadline to

petition the Utah Supreme Court for a writ of certiorari is thirty days, see Utah R.

                                           -3-
App. P. 48(a), but Mr. Sherratt requested and received an extension of time to

August 27, 2001. He missed the extended deadline by two days, so direct

appellate review ended and Mr. Sherratt’s conviction became final on August 27,

2001, when “the time for seeking [direct] review” expired. 28 U.S.C. §

2244(d)(1)(A). Mr. Sherratt asserts no newly created constitutional right that

might be relevant under (C).

      He argues under (B) that the state created an “impediment” to the filing of

his petition by denying him access to statutes including AEDPA. The averments

in his filings establish, however, that he was not denied access to statutes and

other materials; he had simply to request them. During the time he claims to have

been unable to file his federal petition, Mr. Sherratt was vigorously pursuing state

claims: two habeas petitions, as well as countless motions concerning “void

jurisdiction,” recusal of judges, and the like. Where a petitioner’s claims “are

similar to those raised in his direct appeal and motion for state post-conviction

relief, [this] undercut[s] his argument that lack of access caused his delay.”

Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998); accord Gaston v. Palmer, 417

F.3d 1030, 1034–35 (9th Cir. 2005). Finally, Mr. Sherratt’s allegation of an

impediment lacks the specificity we require. “It is not enough to say that the . . .

facility lacked all relevant statutes and case law or that the procedure to request

specific materials was inadequate.” Miller, 141 F.3d at 978. The fact that a




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petitioner “simply did not know about the limitation in the AEDPA until it was

too late,” while regrettable, is not a basis for tolling. Id.

      Under (D), the one-year limitation period on presenting a claim does not

run until the “factual predicate of the claim . . . could have been discovered

through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). Mr. Sherratt

does not quarrel with the district court’s interpretation of his claims, and we adopt

its admirable untangling of his arguments:

              This petition raises the following grounds for habeas relief:
      (1) The original criminal complaint against Petitioner was unsworn.
      (2) The original information charging Petitioner was unverified and
      unsworn. (3) Petitioner’s rights were violated when he was
      arraigned, bound over and taken to trial before the same judge. (4)
      Petitioner received ineffective assistance of counsel, both at trial and
      on direct appeal. . . . (5) The prosecution altered evidence (i.e., two
      victim statements that did not match up), used contradictory evidence
      to support the probable cause statement, allowed false testimony at
      trial, and allowed religious beliefs to bolster witness testimony and
      credibility. (6) Petitioner was denied his right to religious freedom
      when he was convicted based on false testimony about the beliefs of
      the Church of Jesus Christ of Latter-Day Saints (LDS). (7) The trial
      judge was biased by his LDS beliefs. (8) The prosecution withheld
      Brady evidence from Petitioner (i.e., the victim’s ten-page letter
      about her abuse by Petitioner). (9) New evidence showed that the
      victim did not confess to her LDS church leader, as she testified.
      And, (10) the prosecutor gave answers to a potential prosecution
      witness the morning of trial.

R., Vol. VIII, Doc. 29, at 1–3 (footnote omitted).

      The district court correctly determined that the factual predicates for claims

(1) through (7) were reasonably available at or before the time Mr. Sherratt’s




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conviction was made final by the completion of his direct appeals. 1 As to claim

(8), Mr. Sherratt states that he discovered the allegedly withheld evidence in June,

2002, and as to claim (9), he states that the new evidence concerning the victim

was “available for scrutiny by September 1, 2002.” R., Vol. II, Doc. 4, at 67.

The facts underlying claim (10) were discoverable, at the latest, on September 8,

2003. Therefore, AEDPA’s one-year clock was triggered, for different claims, at

four different times. For argument’s sake, we will employ the date most

favorable to Mr. Sherratt.

      Under § 2244(d)(2), time is tolled while “a properly filed application for

State post-conviction or other collateral review . . . is pending.” On August 9,

2002, 347 days after his conviction became final, Mr. Sherratt filed his first

      1
         As to grounds (1) and (2), Mr. Sherratt argues vigorously that the lack of
a sworn complaint or information deprived the state trial court of jurisdiction over
his prosecution; he contends on appeal that the district court erred by failing to
reach these issues before dismissing his complaint for untimeliness. See, e.g.,
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 127 S. Ct. 1184, 1191 (2007)
(noting that “jurisdictional questions ordinarily must precede merits
determinations in dispositional order”). However, the state court’s jurisdiction
vel non is a merits issue, not a jurisdictional issue, on federal habeas.
       Mr. Sherratt also filed a motion with the district court, purportedly under
Fed. R. Civ. P. 60(b)(4), to set aside his “void” convictions. He argues that the
court should have entertained the motion because there is no time limit on filing a
60(b)(4) motion. However, that rule—a familiar friend of the frivolous litigator,
to whom any adverse ruling is “void” and in excess of jurisdiction—is a rule of
civil procedure and thus not available to challenge criminal judgments, nor may it
be used to challenge state judgments of any sort in federal court. At best, in its
discretion a district court may choose to interpret a 60(b)(4) motion attacking a
state criminal judgment as a § 2254 petition, but all the strictures of AEDPA will
apply. See Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005); cf. id. at 534–35
(explaining proper role of Rule 60(b) in habeas cases).

                                         -6-
petition in state court for a writ of habeas corpus. 2 The petition was denied on

August 21, 2002, and appeals were pending until the Utah Supreme Court denied

certiorari on January 2, 2004. 3 The AEDPA time limit would have begun running

on September 8, 2003, but was tolled because of the pendency of the first state

habeas petition. On November 19, 2003, overlapping his first petition, Mr.

Sherratt filed a second state habeas petition. 4 The clock remained tolled by the

second petition; that petition was denied January 23, 2004, and Mr. Sherratt did

not timely appeal. 5 Accordingly, Mr. Sherratt’s state post-conviction proceedings

came to a close on February 23, 2004. The clock then began to run, and from that



      2
       The petition was filed in court on June 28, 2002, but the required filing
fee was not paid until August 9. A petition is not “properly filed” for purposes of
28 U.S.C. § 2244(d)(2) until any required fee has been paid or waived. Artuz v.
Bennett, 531 U.S. 4, 8–9 (2000); Habteselassie v. Novak, 209 F.3d 1208, 1210–11
(10th Cir. 2000). The court below based its calculations on the more generous
June 28 date for filing, recognizing that the outcome would be the same either
way; we will use the correct date of August 9.
      3
        Mr. Sherratt sought, and was denied, certiorari in the United States
Supreme Court. But the time limit for a § 2254 petition is not tolled by the
pendency of a petition for certiorari from the United States Supreme Court to a
state court. Lawrence v. Florida, 127 S. Ct. 1079, 1083 (2007).
      4
          Filed October 27, 2003; fee paid November 19.
      5
        He did untimely appeal, see Sherratt v. Friel, No. 20040541-CA, 2004
WL 2320366 (Utah Ct. App. Oct. 15, 2004), and certiorari was ultimately denied
by the Utah Supreme Court on April 5, 2005. The pendency of an untimely
appeal, however, is not considered “time during which a properly filed application
for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending,” 28 U.S.C. § 2244(d)(2). Pace v. DiGuglielmo,
544 U.S. 408, 413 (2005).

                                         -7-
date Mr. Sherratt waited 623 days, until November 7, 2005, to file his § 2254

petition in federal court. Consequently, under § 2244(d), all of Mr. Sherratt’s

claims were untimely—by 258 days, or more for those claims discoverable

earlier.

                                B. Equitable Tolling

       Because AEDPA’s one-year statute of limitations for § 2254 petitions is

nonjurisdictional, it is subject to equitable tolling in certain “‘rare and exceptional

circumstances.’” Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007)

(quoting Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)). “Equitable

tolling is a rare remedy to be applied in unusual circumstances, not a cure-all for

an entirely common state of affairs.” Wallace v. Kato, 127 S. Ct. 1091, 1100

(2007). Relief “is only available when an inmate [1] diligently pursues his claims

and [2] demonstrates that the failure to timely file was caused by extraordinary

circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th

Cir. 2000). We will grant a COA on “the District Court’s determination that

equitable tolling is inapplicable only if reasonable jurists could debate whether

the court’s refusal to toll the statute of limitations was an abuse of discretion.”

Fleming v. Evans, 481 F.3d 1249, 1254–55 (10th Cir. 2007).

       Mr. Sherratt points to three circumstances to justify his late filing: his lack

of access to statutes and other legal materials, the inadequacy of the contract




                                          -8-
attorneys provided by his prison to help inmates with their filings, and the

contention that he is actually innocent of the rapes of which he was convicted.

      We may reject the first two grounds on the basis of precedent because they

do not set forth extraordinary circumstances justifying late filing. As to the

availability of statutes, “a claim of insufficient access to relevant law, such as

AEDPA, is not enough to support equitable tolling.” Gibson v. Klinger, 232 F.3d

799, 808 (10th Cir. 2000); see also Marsh, 223 F.3d at 1220. As to the

availability and performance of prison contract attorneys, because there is no

right to post-conviction representation at all, denial of habeas counsel and their

ineffectiveness or even outright negligence is not an “exceptional circumstance”

warranting equitable tolling. See Fleming, 481 F.3d at 1255–56.

      Equitable tolling may be appropriate, so as to prevent a fundamental

miscarriage of justice, “when a prisoner is actually innocent.” Gibson, 232 F.3d

at 808. To prevail on such a theory, however, Mr. Sherratt must “support his

allegations of constitutional error with new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S.

298, 324 (1995). Such new evidence must “affirmatively demonstrate[] his

innocence,” not simply “undermine the finding of guilt against him.” Phillips v.

Ferguson, 182 F.3d 769, 774 (10th Cir. 1999) (internal quotation marks omitted).




                                          -9-
      We agree with the district court, for substantially the reasons stated in its

thorough treatment of the issue, that the items of evidence Mr. Sherratt cites are

not new, are merely impeaching, and/or are immaterial to the putative

constitutional claims presented. Moreover, the thoroughness and numerosity of

Mr. Sherratt’s state-court filings demonstrate that, had he applied his efforts with

equal diligence to his federal petition, it need not have been untimely. A prisoner

who did not diligently pursue his claims when evidence became available will not

now be heard to request the benefit of equitable tolling. For these reasons, the

district court’s refusal to grant equitable tolling cannot be called an abuse of

discretion.

                                III. CONCLUSION

      Having reviewed Mr. Sherratt’s COA petition and brief on appeal, we find

the remainder of his claims—for instance, that the district judge should have

recused herself—to be wholly without support or frivolous. “[J]urists of reason”

would not “find it debatable whether the district court was correct in its

procedural ruling” in denying this § 2254 petition as time-barred. Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Accordingly, we DENY Mr. Sherratt’s

request for a COA and DISMISS this appeal. Mr. Sherratt’s motion to stay the

appeal because of the discovery of new evidence is DENIED. Mr. Sherratt’s




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motion for leave to proceed on appeal in forma pauperis is DENIED.

                                                Entered for the Court,


                                                Michael W. McConnell
                                                Circuit Judge




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