Soriano v. Jones , 522 F. App'x 428 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 17, 2013
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JOSE SORIANO,
Petitioner - Appellant,
No. 13-6098
v.
(D.C. No. 5:13-CV-00036-F)
(W.D. Oklahoma)
JUSTIN JONES, Director, Oklahoma
Department of Corrections,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
This matter is before the court on Jose Soriano’s pro se request for a
certificate of appealability (“COA”). Soriano seeks a COA so he can appeal the
district court’s dismissal, on timeliness grounds, of his 28 U.S.C. § 2254 petition.
See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a final
order denying, inter alia, a § 2254 petition unless the petitioner first obtains a
COA); id. § 2244(d)(1) (setting out a one-year statute of limitations on § 2254
petitions running from the date on which the conviction became final). Because
Soriano has not “made a substantial showing of the denial of a constitutional
right,” id. § 2253(c)(2), this court denies his request for a COA and dismisses
this appeal.
Following a jury trial in Oklahoma state court, Soriano was convicted of
two counts of Unlawful Delivery of a Controlled Drug and two counts of
Trafficking in Illegal Drugs. The Oklahoma Court of Criminal Appeals
(“OCCA”) affirmed Soriano’s convictions on direct appeal, Soriano v. State, 248
P.3d 381, 400 (Okla. Crim. App. 2011), and denied his request for collateral relief
in an unpublished order, Soriano v. State, No. PC-2011-982, Slip Op. at 3 (Okla.
Crim. App. Jan. 25, 2012). Soriano then filed the instant § 2254 habeas corpus
petition on January 9, 2013. Soriano’s petition was referred to a federal
magistrate judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). In
a series of two Reports and Recommendations, the magistrate judge concluded
Soriano’s § 2254 petition was untimely. The magistrate judge further noted the
record indicated a lack of diligence on Soriano’s part, precluding the application
of equitable tolling. Thus, the magistrate judge recommended that the district
court dismiss the petition as untimely pursuant to § 2244(d). Upon de novo
review, the district court adopted the Report and Recommendation and dismissed
Soriano’s petition.
The granting of a COA is a jurisdictional prerequisite to Soriano’s appeal
from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To be entitled to a COA, Soriano must make “a substantial showing of
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the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the
requisite showing, he must demonstrate “reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 336 (quotations
omitted). When a district court dismisses a § 2254 petition on procedural
grounds, a petitioner is entitled to a COA only if he shows both that reasonable
jurists would find it debatable whether he had stated a valid constitutional claim
and debatable whether the district court’s procedural ruling was correct. Slack v.
McDaniel, 529 U.S. 474, 484-85 (2000). Although Soriano need not demonstrate
his appeal will succeed to be entitled to a COA, he must “prove something more
than the absence of frivolity or the existence of mere good faith.” Miller-El, 537
U.S. at 338. As a further overlay on this standard, we review for abuse of
discretion the district court’s decision that Soriano is not entitled to have the
limitations period in § 2244(d) equitably tolled. See Burger v. Scott, 317 F.3d
1133, 1141 (10th Cir. 2003). Having undertaken a review of Soriano’s appellate
filings, the district court’s order, and the entire record before this court pursuant
to the framework set out by the Supreme Court in Miller-El, we conclude Soriano
is not entitled to a COA.
The district court’s conclusion that Soriano’s petition is untimely is clearly
correct. The OCCA decided Soriano’s direct appeal on February 16, 2011. Thus,
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his conviction became final on May 17, 2011, upon the expiration of the ninety-
day period to file a petition for certiorari in the United States Supreme Court.
Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001); 28 U.S.C. § 2244(d)(1)(A).
The limitation period ran until August 11, 2011 (a period of eighty-six days),
when Soriano filed a state petition for post-conviction relief. 28 U.S.C.
§ 2244(d)(2) (providing for statutory tolling of the limitations period during the
pendency of a “properly filed application for State post-conviction or other
collateral review”). The limitations period began to run again on January 25,
2012, when the OCCA affirmed the denial of Soriano’s request for post-
conviction relief. At that point, Soriano had 279 days, or until October 30, 2012,
to file his habeas petition. Because he did not file that petition until January 9,
2013, it is time-barred. Furthermore, it cannot reasonably be asserted the district
court abused its discretion in denying Soriano’s request for equitable tolling.
Even though Soriano was subject to extensive periods of institutional lockdown,
he was able to request specific books be delivered to his cell during that time.
Moreover, he had several months in which he was not subjected to institutional
lockdown and has not shown why he could not file his petition during such time,
particularly when the claims he is seeking to raise were previously raised in state
court. Coppage v. McKune, 534 F.3d 1279, 1282 (10th Cir. 2008) (affirming
denial of equitable tolling in similar circumstances).
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For those reasons set out above, this court DENIES Soriano’s request for a
COA and DISMISSES this appeal. Soriano’s request to proceed on appeal in
forma pauperis is GRANTED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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