Owens v. Whitten ( 2022 )

Appellate Case: 22-5106 Document: 010110789911 Date Filed: 12/28/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 28, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
MARTY ALLEN OWENS,
Petitioner - Appellant,
v. No. 22-5106
(D.C. No. 4:22-CV-00192-GKF-CDL)
RICK WHITTEN, (N.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
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This matter is before the court on Marty Allen Owens’s pro se request for a
certificate of appealability (“COA”). Owens seeks a COA so he can appeal the district
court’s dismissal, on timeliness grounds, of his 28 U.S.C. § 2254 habeas petition.1 See
*
This order is not binding precedent except under the doctrines of law of the case,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.
1
The district court concluded it lacked statutory jurisdiction over a narrow
aspect of Owens’s habeas petition because he was no longer “in custody” on that
conviction: his challenge to the validity of his misdemeanor DUI conviction. See
28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (holding that
to proceed under § 2254 a state prisoner must be “in custody” under the
conviction or sentence under attack when the petitioner files the habeas petition).
Owens does not challenge this determination and this court does not address the
matter.
Appellate Case: 22-5106 Document: 010110789911 Date Filed: 12/28/2022 Page: 2
28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a final order
denying habeas corpus relief unless the petitioner first obtains a COA); id.§ 2244(d) (setting out a one-year statute of limitations as to habeas corpus
petitions). Because Owens 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.
In his § 2254 habeas petition, Owens seeks to challenge his decade-old
Oklahoma state convictions for pointing a firearm, assault with intent to kill, and
first-degree burglary. Relying on the Supreme Court’s recent decision in McGirt
v. Oklahoma, 140 S. Ct. 2452 (2020), Owens raises a variety of assertions as to
the validity of his convictions. The district court dismissed Owens’s petition as
untimely, 28 U.S.C. § 2244(d)(1), concluding he was not entitled to either
statutory or equitable tolling.
Owens seeks a COA so he can appeal the district court’s dismissal of his
§ 2254 petition. To be entitled to a COA, he must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is, 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.” Id.(quotations omitted). Owens has not made the requisite showing.
As this court’s recent decisions make clear, McGirt’s focus on a question
of federal-versus-state jurisdiction does not alter the conclusion that the one-year
2
Appellate Case: 22-5106 Document: 010110789911 Date Filed: 12/28/2022 Page: 3
limitations period set out in § 2244(d)(1)(A), rather than the ones set out in
§ 2244(D)(1)(C) and/or (D), applies to McGirt-based challenges to the validity of
state convictions. Warnick v. Harpe, No. 22-5042, 2022 WL 16646708, at *2-3
(10th Cir. Nov. 3, 2022) 2 ; Pacheco v. El Habti, 48 F.4th 1179, 1191 (10th Cir.
2022). Furthermore, it cannot be reasonably argued that the district court erred in
concluding Owens is not entitled to statutory tolling pursuant to § 2244(d)(2). As
the district court correctly noted, the limitations period ran unabated from
October 14, 2014, until it expired one year later, on October 14, 2015. Finally,
no reasonable jurist would conclude the district court acted outside the bounds of
its substantial discretion in concluding Owens’s lack of diligence foreclosed his
claimed entitlement to equitable tolling. Holland v. Florida, 560 U.S. 631, 645
(2010) (noting equitable tolling is available in rare circumstances, but concluding
a petitioner must demonstrate reasonable diligence to be entitled to its benefits);
Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003) (holding that this court
reviews a district court decision on equitable tolling for abuse of discretion).
Owens’s request for a COA is DENIED and this appeal is DISMISSED.
Entered for the Court
Michael R. Murphy
Circuit Judge
2
This court recognizes that Warnick is unpublished and, thus, not binding
precedent. Nevertheless, the analysis set out therein is completely persuasive and
this panel adopts it in its entirety. See Tenth Cir. R. 32.1.
3