Wilson v. Dowling , 702 F. App'x 724 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 25, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JOHN ANTHONY WILSON,
Petitioner - Appellant,
v. No. 17-6040
(D.C. No. 5:16-CV-00343-D)
JANET DOWLING, Warden, (W.D. Okla.)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
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Appellant John Wilson, an Oklahoma state prisoner appearing pro se, seeks a
certificate of appealability (COA) allowing him to appeal the district court’s
dismissal of his application for a writ of habeas corpus under 28 U.S.C. § 2254. We
deny Appellant’s request for a COA and dismiss this matter.
In 2010, Appellant pleaded guilty to multiple drug and theft charges. He
initially appealed to the Oklahoma Court of Criminal Appeals (OCCA) but later
moved to dismiss the appeal. The OCCA granted his request to dismiss on May 13,
2011. Three years later on July 14, 2014, Appellant filed an application for post-
conviction relief with the Oklahoma state district court, asking the court to allow him
*
This order is not binding precedent, except under the doctrines of law of the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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
to file his direct appeal out of time on multiple different bases. The Oklahoma
district court denied his request, and the OCCA affirmed on December 11, 2015.
Thereafter, on April 11, 2016, Appellant filed his § 2254 habeas petition in the U.S.
District Court for the Western District of Oklahoma. The district court denied
Appellant’s petition as untimely under 28 U.S.C. § 2244(d). Appellant now seeks a
COA.
To start, 28 U.S.C. § 2244(d)(1) states that “[a] 1-year period of limitation
shall apply to an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.”1 At the very latest, this limitation period
started on August 12, 2011, which includes the 90-day window during which
Appellant could have filed a petition for certiorari. See Locke v. Saffle, 237 F.3d
1269, 1273 (10th Cir. 2001). Thus, absent tolling or a credible assertion of actual
innocence, Appellant had until August 13, 2012, to file his application in the district
1
Section 2244(d)(1) states that the limitation period “shall run from the latest
of” the following:
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the constitution or laws of the United States
is removed, if the applicant was prevented from filing by such State
action;
(C) the date on which the 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; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
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court. But Appellant did not file his post-conviction relief until July 14, 2014, which
was over two years after the day the one-year limitation period had expired.
Appellant’s application is therefore untimely under § 2244(d) unless some other
statute or legal principle can circumvent the limitation period.
One potential avenue is 28 U.S.C. § 2244(d)(2), which provides for statutory
tolling of a habeas petition. Section 2244(d)(2) states that “[t]he 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.” Further, “[o]nly state petitions for post-conviction relief filed
within the 1-year allowed by AEDPA will toll the statute of limitations.” Clark v.
Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006). We see no evidence of any pending
applications for state post-conviction relief between 2011 and 2012 that would have
tolled the one-year statute of limitations. In fact, Appellant did not seek post-
conviction relief until July 14, 2014. Thus, § 2244(d)(2) cannot toll the limitation
period.
Neither does the concept of equitable tolling assist the Appellant. See Holland
v. Florida, 560 U.S. 631, 645, 649 (2010) (holding that § 2244(d) “is subject to
equitable tolling”). Equitable tolling requires Appellant to show “(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” Id. at 649 (quoting Pace v. Diglielmo,
544 U.S. 408, 418 (2005)). But Appellant did not present any evidence that shows us
he diligently pursued his rights, and we see no extraordinary circumstance that kept
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him from filing a timely motion. We are therefore at a loss in finding any
circumstances that should equitably toll the one-year limitation period.
Finally, a claim of actual innocence does not help Appellant overcome the
statute of limitations set out in § 2244(d). “A credible showing of actual innocence
provides an outright equitable exception to AEDPA’s statute of limitations.” Doe v.
Jones, 762 F.3d 1174, 1182 (10th Cir. 2014) (quoting McQuiggin v. Perkins, 133
S. Ct. 1924, 1931–33 (2013)). Appellant must provide “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). But Appellant’s only allegations arise from deficient performance
of trial and appellate counsel; he does not present any new evidence that suggests he
was actually innocent. Therefore, Appellant does not have a claim for actual
innocence.
Because no form of tolling applies and because Appellant has not made a
credible claim that he is actually innocent, his petition is time-barred by AEDPA’s
one-year statute of limitation. See 28 U.S.C § 2244(d)(1). Further, this conclusion is
not debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (“[A] COA should
issue 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.”). We therefore DENY Appellant’s request for a COA and
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DISMISS this matter. Appellant’s motion for leave to proceed in forma pauperis is
denied.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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