Filed: Apr. 24, 2001
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 24 2001 TENTH CIRCUIT PATRICK FISHER Clerk DUANE WILLETT, Petitioner-Appellant, v. No. 00-4180 JIM SMITH, Warden, Utah State (D.C. No. 00-CV-274) Prison; UTAH STATE PRISON, (D.Utah) Respondents-Appellees. ORDER AND JUDGMENT * Before HENRY , BRISCOE and MURPHY, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 24 2001 TENTH CIRCUIT PATRICK FISHER Clerk DUANE WILLETT, Petitioner-Appellant, v. No. 00-4180 JIM SMITH, Warden, Utah State (D.C. No. 00-CV-274) Prison; UTAH STATE PRISON, (D.Utah) Respondents-Appellees. ORDER AND JUDGMENT * Before HENRY , BRISCOE and MURPHY, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist ..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 24 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
DUANE WILLETT,
Petitioner-Appellant,
v. No. 00-4180
JIM SMITH, Warden, Utah State (D.C. No. 00-CV-274)
Prison; UTAH STATE PRISON, (D.Utah)
Respondents-Appellees.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE and MURPHY, Circuit Judges.
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.
Petitioner Duane Willett, a state prisoner appearing pro se, seeks a
certificate of appealability to appeal the district court’s dismissal of his 28 U.S.C.
This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§ 2254 petition for writ of habeas corpus as untimely. We deny the request for a
certificate of appealability and dismiss the appeal.
Willett was convicted by a jury in state court of capital homicide in
February 1994, and was sentenced to life in prison. The Utah Supreme Court
affirmed his convictions on September 12, 1995, State v. Willett ,
909 P.2d 218,
221 (Utah 1995), and his rehearing request was denied on December 27, 1995.
Willett was granted an extension until March 27, 1997, to file a state habeas
petition, but did not file his petition until September 20, 1999. The Utah
Supreme Court denied his habeas petition on October 18, 1999.
Willett filed his § 2254 petition on March 28, 2000, contending (1) the
trial court misinterpreted the Utah due process law; (2) he received ineffective
assistance of trial counsel because there was no pretrial investigation and a
conflict of interest; (3) the trial court's erroneous ruling was a result of personal
bias and/or prejudice; (4) a conspiracy existed that resulted in intimidation and
fear to alibi witness testimony; (5) he was denied his Sixth and Fourteenth
Amendment rights to present defense witnesses; (6) the trial court committed
error in allowing the State to refile the original information; (7) the trial court
committed error in not allowing a new preliminary hearing; (8) there was
insufficient evidence to substantiate the conviction; (9) the prosecutor introduced
unreliable and uncorroborated hearsay testimony; (10) there was prosecutorial
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misconduct; (11) the State pursued a malicious prosecution; and (12) he was
denied a fair trial based on improper and prejudicial jury instructions. The
district court directed respondents to respond to the habeas petition. Respondents
filed their response on May 25, 2000, alleging Willett's habeas petition was
barred by the statute of limitations.
The magistrate court issued its report and recommendation on September
26, 2000, finding Willett's habeas petition was time-barred and recommending
that the petition be dismissed as untimely. The district court originally adopted
the report and recommendation and dismissed the petition as untimely on October
12, 2000, finding Willett failed to file objections to the report. Although
Willett's objections were filed October 16, 2000, the certificate of mailing
indicated the objections were delivered to prison officials on October 6, 2000.
Willett filed an objection to the dismissal order pursuant to Federal Rule of Civil
Procedure 59(e). On March 14, 2001, the district court determined that Willett
had filed timely objections to the magistrate's report, vacated its October 12
order, re-adopted the magistrate's report, and dismissed Willett's habeas petition
as untimely.
As Willett filed his habeas petition on March 28, 2000, the provisions of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply. See
Lindh v. Murphy ,
521 U.S. 320, 336 (1997). Under 28 U.S.C. § 2244(d)(1) and
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Hoggro v. Boone ,
150 F.3d 1223, 1225-26 (10th Cir. 1998), Willett had until
April 23, 1997, to file his habeas petition. He did not seek post-conviction relief
in state court during the applicable limitation period and his application for post-
conviction relief filed in September 1999 did not toll the running of the
limitation period.
Willett's request for a certificate of appealability is DENIED. The appeal
is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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