Warnick v. Harpe ( 2022 )

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This order is not binding precedent except under the doctrines of law of the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
Appellate Case: 22-5042 Document: 010110762990 Date Filed: 11/03/2022 Page: 3
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
Appellate Case: 22-5042 Document: 010110762990 Date Filed: 11/03/2022 Page: 4
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
Appellate Case: 22-5042 Document: 010110762990 Date Filed: 11/03/2022 Page: 5
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
Appellate Case: 22-5042 Document: 010110762990 Date Filed: 11/03/2022 Page: 6
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
Appellate Case: 22-5042 Document: 010110762990 Date Filed: 11/03/2022 Page: 7
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