Johnson v. Jones , 465 F. App'x 811 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 2, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
VICTOR RAY JOHNSON,
Petitioner-Appellant,
v.
No. 12-6025
(D.C. No. 5:11-CV-01370-F)
JUSTIN JONES,
(W.D. Okla.)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.
After Victor Johnson pleaded guilty in Oklahoma state court to several
drug-related charges and was sentenced to ten years in prison, he complained that
the prosecution promised him a three year sentence. He unsuccessfully sought
state post-conviction relief on this basis and eventually filed a federal habeas
petition under 28 U.S.C. § 2254. The district court, however, dismissed Mr.
Johnson’s petition after determining it was untimely, see 28 U.S.C. § 2244(d)(1),
and that none of the potential grounds for statutory or equitable tolling of the
*
This order is not binding precedent except under the doctrines of law of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.
limitations period could save the petition. Seeking to appeal that dismissal, Mr.
Johnson asked the district court for a certificate of appealability (“COA”), which
the court denied. Now before this court, Mr. Johnson renews his request for a
COA.
We may issue a COA only if the petitioner makes a “substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). And where, as here,
the district court dismisses a § 2254 petition on procedural grounds, we may issue
a COA only if “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).
We see no way, however, in which reasonable jurists might debate the
district court’s analysis that Mr. Johnson’s petition is time-barred. The one-year
limitations period for filing a federal habeas petition began running when Mr.
Johnson’s conviction became final on March 16, 2009. See 28 U.S.C.
§ 2244(d)(1)(A). He did not file this petition until November 17, 2011, well over
a year and a half past the filing deadline. Mr. Johnson’s state post-conviction
petition did not toll any of this time because even that petition was not filed until
many months past the end of the one-year period. See Fisher v. Gibson, 262 F.3d
1135, 1142-43 (10th Cir. 2001).
Mr. Johnson objects that the limitations clock should not have started on
the date of his conviction because, he says, he could not have discovered “the
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factual predicate of the claim . . . through the exercise of due diligence” until
some six months later. See 28 U.S.C. § 2244(d)(1)(D). He claims he could not
have earlier discovered that his sentence was longer than the three year term (he
says) he agreed to in his guilty plea because the higher sentence was reflected
only in court documents that had been fabricated or altered after his sentence was
imposed. The problem is that the Oklahoma court that dismissed his state post-
conviction motion found this whole story incredible, and Mr. Johnson offers us no
basis to question its factual finding. To the extent Mr. Johnson’s petition can be
construed to argue for some other basis for equitable tolling, the district court’s
conclusion that tolling is unavailable is unassailably correct.
Accordingly, Mr. Johnson’s application for a COA is denied and this appeal
is dismissed. The motion to proceed in forma pauperis is granted.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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