                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                       February 15, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court

    CHRIS W ICKHAM ,

              Petitioner-A ppellant,

     v.                                                    No. 05-4077
                                                    (D.C. No. 2:03-CV -595-TS)
    CLINT FRIEL,                                            (D. Utah)

              Respondent-Appellee.



                              OR D ER AND JUDGM ENT *


Before O ’B RIE N and BROR BY, Circuit Judges, and BRO W N, ** District Judge.




          Chris W ickham, a U tah state prisoner, appeals from the denial of his

petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. The district

court dismissed many of his habeas claims as untimely. W e granted a certificate

of appealability (COA) concerning the one-year limitations period for filing



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
       The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.
habeas petitions set forth in 28 U.S.C. § 2244(d)(1)(D), which measures the

period from “the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due diligence.” W e

also granted a CO A on whether equitable tolling should be applied and whether

the matter should be remanded to the district court. The parties have filed

supplemental briefs. W e have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a)

and reverse.

                                         I.

      A fter a jury trial, M r. Wickham was convicted on January 29, 1997, of tw o

counts of aggravated sexual assault, each a first-degree felony under Utah Code

Ann. § 76-5-405 (1996). The victim was a sixteen-year-old girl. On M arch 21,

1997, M r. W ickham was sentenced to tw o consecutive terms of ten years to life.

He did not file a direct appeal. Under Rule 4(a) of the Utah Rules of Appellate

Procedure, his conviction became final on the last day he could have filed a direct

appeal, April 20, 1997. 1




1
       The district court found that M r. W ickham’s conviction became final on
M ay 19, 1997, and M r. W ickham asserts that it became final on June 9, 1997, one
month after he withdrew a motion for a new trial. W e are unable to discern from
the record if either of these alternate dates are correct. The precise date on which
M r. W ickham’s conviction became final, however, is immaterial for our purposes
because he did not file his § 2254 petition until July 3, 2003, which is more than
six years after any of the dates on which his conviction may have become final
and well beyond the one-year limitation set forth in 28 U.S.C. § 2244(d)(1)(A).

                                         -2-
      On M arch 9, 1999, one of M r. W ickham’s co-defendants, Robert Pliego,

who had been a fugitive after the incident, pleaded guilty to one count of

unlawful sexual intercourse, a third-degree felony under Utah law. As the

prosecutor later testified during M r. W ickham’s post-conviction proceedings, the

primary concern in the decision to offer M r. Pliego a plea bargain that reduced

two first-degree felony charges to a single third-degree felony charge was the fact

that the victim’s social service records called the veracity of the victim’s story

into question by revealing that she had previously lied about sexual abuse.

M r. Pliego’s counsel obtained those records from various state agencies after

having unsuccessfully sought to obtain them from the prosecution. See State v.

Pliego, 974 P.2d 279, 283 (Utah 1999) (holding that prosecution had no

obligation to obtain and produce the records and that M r. Pliego should have

sought the records himself by subpoena to the state agencies).

      On April 19, 1999, M r. W ickham filed a pro se petition for post-conviction

relief in state court claiming that his trial counsel failed to file an appeal as

M r. W ickham had requested. He soon obtained counsel who filed an amended

petition on June 16, 1999, that added claims based on the victim’s social service

records— that trial counsel rendered ineffective assistance by failing to seek

production of the records and that the records were newly discovered material

evidence warranting a new trial. M r. W ickham requested copies of the records.




                                           -3-
After reviewing them in camera, the court provided M r. W ickham w ith copies of

those records that were material to his claims on February 25, 2000.

        In a memorandum decision filed on July 31, 2000, the state district court

concluded in relevant part that although trial counsel had not rendered ineffective

assistance in failing to uncover the victim’s social service records, the records

were newly discovered evidence justifying vacatur of the conviction and a new

trial. On July 26, 2002, the Utah Supreme Court reversed, concluding that

because the victim’s social service records served only to impeach the victim’s

credibility, there was an insufficient basis under U tah law for granting a new trial.

See Wickham v. Galetka, 61 P.3d 978, 980-81 (Utah 2002). M r. W ickham had

urged the Utah Supreme Court to affirm on alternate bases, one of which was that

trial counsel’s failure to obtain the records constituted ineffective assistance of

counsel. The court, however, did not discuss that particular basis. See id. at 982

(discussing ineffective assistance only in context of trial counsel’s failure to

interview M r. Pliego and another witness and call them at trial). The Utah

Supreme Court denied M r. W ickham’s petition for rehearing on December 5,

2002.

        On July 3, 2003, M r. W ickham filed a pro se petition for a writ of habeas

corpus in federal district court under 28 U.S.C. § 2254. Among other claims, he

alleged again that trial counsel was ineffective in failing to discover and present

the victim’s social service records. The district court concluded that seven of

                                           -4-
M r. W ickham’s claims, including his ineffective assistance of trial counsel

claims, were barred by the one-year statute of limitations set forth in 28 U.S.C.

§ 2244(d)(1)(A), which measures the limitations period from the date on which

the state judgment became final on direct review , and that he was not entitled to

equitable tolling. The court declined to reach questions of state law, found one

claim procedurally barred, and denied other claims on the merits.

      On July 8, 2005, M r. W ickham, again appearing pro se, applied to this

court for a COA to appeal the district court’s denial of his § 2254 petition. W e

granted the application on M arch 7, 2006, 2 as to the following three related issues

concerning trial counsel’s failure to discover and present the victim’s social

service records:

      (1) whether the release of the social service records during the
      state-post conviction proceedings constituted “the date on which the
      factual predicate of the claim . . . could have been discovered
      through the exercise of due diligence,” 28 U.S.C. § 2244(d)(1)(D),
      such that the claim is not time-barred; (2) whether the doctrine of
      equitable tolling should be applied to this ineffective assistance of
      counsel claim; and (3) whether this ineffective assistance of counsel
      claim should be remanded to the district court for consideration on
      the merits.

Wickham v. Friel, No. 05-4077, slip op. at 2 (10th Cir. M ar. 7, 2006) (order

granting certificate of appealability) (omission in original). M r. W ickham then




2
       M r. W ickham also applied for a COA in the district court on M ay 4, 2005.
The district court denied that application on M arch 3, 2006. See Wickham v.
Friel, No. 2:03-cv-595-TS, 2006 W L 533509, at *1 (D. Utah M ar. 3, 2006).

                                         -5-
obtained counsel, who filed a supplemental brief in response to our order granting

a C OA .

                                          II.

      “In an appeal of the dismissal of a federal habeas corpus petition, we

review a district court’s findings of fact for clear error and its conclusions of law

de novo.” Burger v. Scott, 317 F.3d 1133, 1137 (10th Cir. 2003). W e review

de novo the district court’s dismissal of M r. W ickham’s ineffective assistance

claim as time-barred under § 2244(d). See id. at 1137-38.

      As an initial matter, appellee contends that M r. W ickham has argued for the

first time on appeal, in his supplemental brief, the merits of the first issue on

which we granted a CO A— whether the statutory period for filing his habeas

petition should be computed under § 2244(d)(1)(D) by reference to the date on

which the victim’s social service records w ere released during his state

post-conviction hearing. Therefore, appellee concludes, M r. W ickham has waived

the first issue on which we granted a COA.

      From our review of the record, it does not appear that M r. W ickham

squarely argued at any time prior to his supplemental brief on appeal that his

petition was timely if measured against the date on which the social service

records were released to him. Although the district court expressly stated that

M r. W ickham had made an argument under § 2244(d)(1)(D ), it did not elaborate

on the nature of that argument. But M r. W ickham did argue in the district court

                                          -6-
that the victim’s records were newly discovered evidence that entitled him to a

new trial under the Utah post-conviction remedies statute. In its consideration of

the interplay between the newly discovered evidence and the question of

timeliness, the court stated that the records do “not serve as a basis to allow

consideration of the other claims Petitioner has forfeited under the period of

limitations.” R., Vol. I, Doc. 22 at 4. Those “other claims” included the

ineffective assistance of counsel claim at issue here, which suggests that the

district court implicitly considered whether the petition might be timely under

§ 2244(d)(1)(D) as measured from the date on which M r. W ickham’s could have

become aware that the victim’s records formed the factual predicate of his

ineffective assistance claim. These circumstances justify exercising our

discretion to hear for the first time on appeal the first issue on which we granted a

COA. See Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir. 1991)

(explaining that “[t]he matter of what questions may be addressed for the first

time on appeal is within our discretion and decided on a case by case basis”).

M oreover, we have recognized an exception to the general rule that we do not

consider an issue raised for the first time on appeal to prevent a miscarriage of

justice, see id., w hich may occur here absent our review. 3

3
      Similar reasoning also forecloses appellee’s argument that we should not
consider the third issue on w hich we granted a C OA, whether to remand, because
M r. W ickham did not assert in the district court one of the bases for obtaining
federal habeas relief, namely, that the state court’s decision on his post-judgment
                                                                        (continued...)

                                          -7-
      Turning to the merits of the first issue, M r. W ickham must have actually

discovered the factual predicate of his claim sometime prior to June 16, 1999, the

date on which he filed his amended petition and added the claim. Thus, it appears

that his actual discovery necessarily occurred a good deal prior to the release of

the victim’s records to him in early 2000, the date we had considered in our order

granting a COA. But this deduction is of limited assistance because the statute

requires us to determine the date on which M r. W ickham could have discovered

the factual predicate of his claim. See 28 U.S.C. § 2244(d)(1)(D). W e conclude

that through the exercise of due diligence, M r. W ickham could have become

aware of the existence of the records no earlier than the date on which the Utah

Supreme Court’s opinion in State v. Pliego, which discussed M r. Pliego’s attempt

to obtain the victim’s records in support of his defense, became available in the

prison law library. See Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir.

2000) (information related in a new case is discoverable by due diligence when

the opinion becomes available in the prison law library). In order to have

ascertained the factual predicate of his claim prior to that date, M r. W ickham

would have had to hypothesize that the victim had social service records that

might have been beneficial to his defense and then attempt to obtain them.



3
 (...continued)
petition “resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceedings,”
28 U.S.C. § 2254(d)(2).

                                         -8-
Requiring M r. W ickham to exercise such prescience and diligence, particularly in

view of the fact that he was incarcerated, would exceed the standard set forth in

§ 2244(d)(1)(D ), which “does not require the maximum feasible diligence, only

‘due,’ or reasonable, diligence,” DiCenzi v. Rose, 452 F.3d 465, 470 (6th Cir.

2006) (quotation omitted). There is no indication that M r. W ickham had been in

contact with M r. Pliego prior to the date on which State v. Pliego became

available in the prison law library or otherwise actually knew, or could have

discovered through the exercise of due diligence at an earlier date, that M r. Pliego

was attempting to obtain the victim’s records as evidence to support his defense

or that the records existed.

      W e need not determine the exact date on which the decision in State v.

Pliego became available in the prison law library. Even using the date that the

decision was issued, January 29, 1999, as a starting point, M r. W ickham’s federal

habeas petition is timely under § 2244(d)(1)(D). Eighty days against the

limitations period elapsed between January 29, 1999, and the date on which

M r. W ickham filed his state petition for post-conviction relief, April 19, 1999.

During the pendency of the state post-conviction proceedings, the limitations

period was tolled. See 28 U.S.C. § 2244(d)(2). 4 The state proceedings ended on



4
       28 U.S.C. § 2244(d)(2) provides: “The 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 shall not be counted toward any period of
limitation under this subsection.”

                                          -9-
December 5, 2002, when the Utah Supreme Court denied M r. W ickham’s petition

for rehearing. See Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999) (state

post-conviction proceeding is final for § 2244(d)(2) purposes after state’s highest

court has addressed the application); Barnett v. Lemaster, 167 F.3d 1321, 1323

(10th Cir. 1999) (application for post-conviction relief remains pending for

§ 2244(d)(2) purposes the entire “time during which a state prisoner is attempting,

through proper use of state court procedures, to exhaust state court remedies”). 5

M r. W ickham filed his habeas petition on July 3, 2003, 210 days after the state

proceedings ended. Adding together the eighty days that ran before the state

proceedings tolled the limitations period and the 210 days that ran after the state

proceedings had ended yields 290 days, placing M r. W ickham’s federal habeas

petition within the one-year period. Accordingly, his claim that his trial counsel

rendered ineffective assistance by failing to obtain the victim’s social services

records is timely under § 2244(d)(1)(D) and (d)(2). 6


5
       M r. W ickham mistakenly relies on Locke v. Saffle, 237 F.3d. 1269, 1272
(10th Cir. 2001), for the proposition that the period is further tolled until
M arch 5, 2003, the end of the ninety-day period in which he could have petitioned
the United States Supreme Court for a writ of certiorari. That rule applies when
measuring the limitation period from the date on which the state judgment became
final after direct review under 28 U.S.C. § 2244(d)(1)(A), not to the tolling
provision for post-conviction proceedings set forth in § 2244(d)(2). See Locke,
237 F.3d at 1271 & n.2, 1273 (citing Rhine). Even under our less-generous
calculation, however, M r. W ickham’s petition was timely as to the claim at issue
in this appeal.
6
      W e also would conclude that M r. W ickham’s federal habeas petition is
                                                                    (continued...)

                                        -10-
      Because we resolve the timeliness issue based on the statute, we need not

address the second issue on which we granted a CO A, whether equitable tolling

applies. As to the third issue on which we granted a COA, appellee presents a

number of reasons that he believes counsel against remanding M r. W ickham’s

ineffective assistance claim. These include that the state post-conviction court’s

factual findings were not contrary to the record, the victim’s records w ere

privileged and confidential and therefore not discoverable or admissible at trial,

the records were released to M r. Pliego’s trial counsel inadvertently, and

M r. W ickham cannot show he w as prejudiced under Strickland v. Washington,

466 U.S. 668 (1984), and its progeny because he was offered the same plea

bargain that M r. Pliego received even without any benefit that the records might

have afforded him. W e think these matters are better considered by the district

court in the first instance on remand.

      The judgment of the district court is REVERSED as to its holding that

M r. W ickham’s ineffective assistance of trial counsel claim is time-barred, and

the matter is REM ANDED to the district court for further proceedings consistent

with this order and judgment. Appellee’s motion to seal documents, which the



6
 (...continued)
timely even if we used June 16, 1999, the date he filed his amended state petition
and added the ineffective assistance claim based on the records, as the proper date
to begin the period of tolling under § 2244(d)(2). Using that date, 138 days
would have run prior to tolling instead of eighty. W hen added to the 210 days
that elapsed later, a total of 348 days would have run against the one-year period.

                                         -11-
clerk of this court provisionally granted, is now permanently GRANTED, and the

documents shall be sealed. M r. W ickham’s application to proceed in forma

pauperis is GRANTED, and we remind M r. W ickham of his obligation to continue

making partial payments until his appellate filing fee is paid in full.



                                                      Entered for the Court


                                                      W esley E. Brown
                                                      District Judge




                                          -12-
