Warnick v. Harpe ( 2022 )


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  • Appellate Case: 22-5042     Document: 010110762990          Date Filed: 11/03/2022     Page: 1
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                              Tenth Circuit
    FOR THE TENTH CIRCUIT                             November 3, 2022
    _________________________________
    Christopher M. Wolpert
    Clerk of Court
    ANTHONY H. WARNICK,
    Petitioner - Appellant,
    v.                                                             No. 22-5042
    (D.C. No. 4:21-CV-00478-GKF-SH)
    STEVEN HARPE,                                                 (N.D. Okla.)
    Respondent - Appellee.
    _________________________________
    ORDER DENYING CERTIFICATE OF APPEALABILITY**
    _________________________________
    Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
    _________________________________
    Petitioner Anthony H. Warnick, an Oklahoma state prisoner proceeding pro se,1
    seeks a certificate of appealability (“COA”) to challenge the district court’s dismissal of
    his 
    28 U.S.C. § 2254
     petition for a writ of habeas corpus as untimely under 28 U.S.C.
    
    Pursuant to Fed. R. App. P. 43(c)(2), Scott Crow is replaced by Steven Harpe as
    the Director of the Oklahoma Department of Corrections, effective October 13, 2022.
    **
    This order is not binding precedent except under the doctrines of law of the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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule
    32.1.
    1
    Because Mr. Warnick is proceeding pro se, “we liberally construe his filings, but
    we will not act as his advocate.” James v. Wadas, 
    724 F.3d 1312
    , 1315 (10th Cir. 2013).
    Appellate Case: 22-5042     Document: 010110762990         Date Filed: 11/03/2022     Page: 2
    § 2244(d)(1). Because the district court’s procedural ruling is not debatable, we deny a
    COA and dismiss this matter.
    I.     BACKGROUND
    On August 9, 2017, an Oklahoma state court convicted Mr. Warnick of one count
    of possessing child pornography and sentenced him to thirty-five years in prison. The
    Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the judgment and sentence on
    November 8, 2018. Mr. Warnick did not file a petition for writ of certiorari in the United
    States Supreme Court. On July 27, 2020, Mr. Warnick filed an application for
    post-conviction relief in state court arguing the Oklahoma state court lacked jurisdiction
    to convict him.2 The state court denied his application and the OCCA affirmed.
    On November 1, 2021, Mr. Warnick filed a 
    28 U.S.C. § 2254
     petition in the
    United States District Court for the Northern District of Oklahoma, arguing the
    Oklahoma state court lacked subject matter jurisdiction to convict him based on McGirt
    v. Oklahoma, 
    140 S. Ct. 2452
     (2020). The Director of the Oklahoma Department of
    Corrections filed a motion to dismiss the petition as untimely under the Antiterrorism and
    Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations. Mr. Warnick
    opposed the motion and argued his § 2254 petition was timely because “issues of
    jurisdiction can be raised at any time, AEDPA notwithstanding.” Id. at 117. Mr. Warnick
    then filed a motion for leave to file a supplemental response to the motion to dismiss,
    2
    Oklahoma does not follow a “prisoner mailbox rule” for applications for post-
    conviction relief. Moore v. Gibson, 
    27 P.3d 483
    , 487 (Okla. 2001). Instead, these
    applications are considered “filed” under the Post-Conviction Procedure Act, Section
    1080 et seq. of Title 22, “when a proper petition is delivered to the proper court.” 
    Id.
    2
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    stating he planned to “file information pertinent to his Application and Response which
    should greatly assist th[e] [c]ourt in the matter.” ROA at 129. Without waiting for the
    district court to rule on his motion, Mr. Warnick filed a supplemental response, which
    included as an exhibit a letter from his state appellate counsel advising that he could raise
    a jurisdictional issue at any time during his state proceedings.
    The district court granted the Director’s motion and dismissed Mr. Warnick’s
    § 2254 petition as untimely because it was not filed within one year of his conviction
    becoming final. Because Mr. Warnick filed the supplemental response without leave and
    could have advanced the supplemental arguments in his response to the motion to
    dismiss, the district court ordered it to be stricken from the record. Finally, the district
    court declined to issue a COA. Mr. Warnick now seeks a COA in this court.
    II.    DISCUSSION
    Mr. Warnick must “seek a COA to obtain appellate review of the dismissal of his
    habeas petition.” Slack v. McDaniel, 
    529 U.S. 473
    , 482 (10th Cir. 2000). Because the
    district court denied his petition on procedural grounds, Mr. Warnick must show “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” to receive a COA. 
    Id. at 484
    .
    “Where a plain procedural bar is present and the district court is correct to invoke it to
    dispose of the case, a reasonable jurist could not conclude either that the district court
    erred in dismissing the petition or that the petitioner should be allowed to proceed
    3
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    further.” 
    Id.
     Because the district court was correct to dismiss Mr. Warnick’s petition as
    untimely, “no appeal [is] warranted.” 
    Id.
    AEDPA establishes a one-year limitations period for a person in state custody to
    file a writ of habeas corpus. 
    28 U.S.C. § 2244
    (d)(1). This limitations period begins to run
    from the latest of four possible accrual dates. 
    Id.
     Here, the relevant one-year limitations
    period began on “the date on which the judgment became final by the conclusion of
    direct review or the expiration of the time for seeking such review[.]” 
    Id.
    § 2244(d)(1)(A). Because Mr. Warnick did not file a certiorari petition with the United
    States Supreme Court, his conviction became final on February 6, 2019. See Harris v.
    Dinwiddie, 
    642 F.3d 902
    , 906 n.6 (10th Cir. 2011) (noting state prisoners have ninety
    days to file a petition for a writ of certiorari). AEDPA’s limitations period began to run
    the next day and expired one year later, on February 7, 2020. See 
    id.
     Mr. Warnick did not
    file his § 2254 petition until November 1, 2021.3
    3
    In his COA request, Mr. Warnick briefly argues the one-year limitations period
    should have been tolled pursuant to 
    28 U.S.C. § 2244
    (b)(2)(B)(i). Because this section
    applies only in “second or successive habeas corpus application[s],” we construe his
    argument to be seeking equitable tolling of 28 U.S.C § 2244(d)(1)(A). “‘Generally, a
    litigant seeking equitable tolling bears the burden of establishing two elements: (1) that
    he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
    stood in his way.’” Sigala v. Bravo, 
    656 F.3d 1125
    , 1128 (10th Cir. 2011) (quoting Pace
    v. DiGuglielmo, 
    544 U.S. 408
    , 418 (2005)). Mr. Warnick maintains that by “striking from
    the record the [s]upplemental brief, the [d]istrict [c]ourt could evade” his tolling
    argument. COA Request at 6. In Mr. Warnick’s stricken supplemental brief, he argued he
    had diligently pursued his federal habeas claim because his state appellate counsel
    advised him that in the context of his direct appeal he could raise a jurisdictional issue at
    any time. ROA at 156. Even if the district court had considered this information, it would
    not have advanced Mr. Warnick’s due diligence argument where his state appellate
    counsel was providing advice only as to state court proceedings and not in the context of
    a federal habeas petition. Accordingly, even considering the letter in Mr. Warnick’s
    4
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    In his COA request, Mr. Warnick raises two arguments to demonstrate the district
    court’s timeliness determination was debatable or wrong. First, Mr. Warnick argues
    AEDPA’s one-year limitations period does not apply to jurisdictional challenges. He
    contends that because subject matter jurisdiction challenges can be raised at any time, his
    § 2254 petition based on the state trial court’s lack of jurisdiction under McGirt is not
    time barred by AEDPA’s statute of limitations. We have rejected this argument in several
    unpublished orders, concluding that a challenge to the convicting court’s jurisdiction is a
    due process claim and, “as with any other habeas claim, . . . is subject to dismissal for
    untimeliness.” Morales v. Jones, 417 F. App’x 746, 749 (10th Cir. 2011) (unpublished);
    see also Lamarr v. Nunn, No. 22-6063, 
    2022 WL 2678602
    , at *2 (10th Cir. July 12,
    2022) (unpublished) (rejecting a state prisoner’s argument that AEDPA time limitations
    do not apply to his habeas petition because the state court lacked jurisdiction to convict
    him); Murrell v. Crow, 793 F. App’x 675, 679 (10th Cir. 2019) (unpublished) (denying a
    COA challenging the district court’s dismissal of an untimely habeas petition challenging
    the convicting court’s jurisdiction).4 We have explained that a petitioner’s challenge to
    the convicting court’s jurisdiction is considered a due process challenge and is subject to
    AEDPA’s one-year limitations period. See Yellowbear v. Wyo. Att’y Gen., 
    525 F.3d 921
    ,
    924 (10th Cir. 2008) (explaining “[a]bsence of jurisdiction in the convicting court is. . .a
    supplemental response, he has not demonstrated reasonable jurists could debate whether
    he was entitled to tolling on his § 2254 petition.
    4
    We cite these unpublished decisions herein as persuasive authority. Fed. R. App.
    P. 32.1(a); 10th Cir. R. 32.1(A).
    5
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    basis for federal habeas corpus relief cognizable under the due process clause”); Gibson
    v. Klinger, 
    232 F.3d 799
    , 803, 808 (10th Cir. 2000) (affirming dismissal of due process
    habeas claim as time barred under AEDPA). The district court’s conclusion that
    AEDPA’s one-year statute of limitations applied to Mr. Warnick’s habeas petition
    challenging the state court’s subject matter jurisdiction was neither “debatable [n]or
    wrong.” Slack, 529 U.S. at 484.
    Second, Mr. Warnick argues his state judgment could not be “final” because it was
    “void” where the state court lacked the jurisdiction to convict him. We disagree. A
    judgment becomes final “by the conclusion of direct review or the expiration of the time
    for seeking such review[.]” 
    28 U.S.C. § 2244
    (d)(1)(A); see also Woodward v. Cline, 
    693 F.3d 1289
    , 1292 (10th Cir. 2012) (“[A] judgment becomes final when the defendant has
    exhausted all direct appeals in state court and the time to petition for a writ of certiorari
    from the United States Supreme Court has expired.”). Whether or not the state court had
    subject matter jurisdiction, its judgment became final on February 7, 2019. Mr. Warnick
    did not file his § 2254 petition until over a year later, on November 1, 2021. Thus, the
    district court was correct to dismiss it as time barred.5 Reasonable jurists “could not
    5
    While Mr. Warnick does not argue AEDPA’s limitations period should be
    statutorily tolled, it is worth noting that his state court application for post-conviction
    relief did not toll the limitations period because he filed it after the one-year limitations
    period had expired. See Clark v. Oklahoma, 
    468 F.3d 711
    , 714 (10th Cir. 2006) (“Only
    state petitions for post-conviction relief filed within the one year allowed by AEDPA will
    toll the statute of limitations.”). Nor did McGirt establish a new constitutional right that
    would trigger a new date for the limitations period. Pacheco v. El Habti, 
    48 F.4th 1179
    ,
    1191 (10th Cir. 2022) (“McGirt announced no new constitutional right.”).
    6
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    conclude either that the district court erred in dismissing the petition or that the petitioner
    should be allowed to proceed further.” Slack, 529 U.S. at 484.
    III.   CONCLUSION
    For these reasons, we DENY Mr. Warnick’s application for a COA and
    DISMISS this matter.
    Entered for the Court
    Carolyn B. McHugh
    Circuit Judge
    7