FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 9, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JAMES JOHNNY JONES,
Petitioner - Appellant,
No. 10-6059
v. (D.C. No. 5:09-CV-01231-R)
(W.D. Okla.)
MICHAEL K. ADDISON, Warden,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, McKAY, and LUCERO, Circuit Judges.
Petitioner-Appellant James Johnny Jones, an Oklahoma state inmate
proceeding pro se, seeks a certificate of appealability (“COA”) allowing him to
appeal the district court’s treatment of his hybrid 28 U.S.C. §§ 2241 and 2254
habeas petition: the court denied the § 2241 petition and dismissed the § 2254
petition. Mr. Jones fails to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Therefore, we deny his request for
a COA, and dismiss the appeal.
Mr. Jones’s federal habeas petition arises from his state application to
pursue an out-of-time appeal. R. 10-11. * According to Mr. Jones, his state
application claimed that he could not pursue post-conviction relief in a timely
fashion because prescription medication incapacitated him for nearly seven years.
Id. at 11-12. The state district court denied Mr. Jones’s application, and
sanctioned him 720 earned good time credits for filing a frivolous claim. Id. at 4,
19. The Oklahoma Court of Criminal Appeals affirmed. Id. at 19. The federal
magistrate judge understood Mr. Jones’s habeas petition as challenging both the
denial of the state application and the sanction, and treated it as both a § 2241
petition challenging the execution of his sentence and a § 2254 challenge to his
conviction. Id. at 20, 23-25. The magistrate recommended the denial of the §
2241 petition, finding a reasonable basis for the sanction, and the dismissal of the
§ 2254 petition, deeming it time-barred. Id. at 22-25. The district court adopted
the magistrate’s report, denied the § 2241 petition, and dismissed the § 2254
petition. Id. at 33-34.
For the most part, Mr. Jones’s COA application and appellate brief present
substantive challenges to his conviction which were missing from his habeas
petition. COA Application 2-3. Generally, we do not review issues presented for
the first time on appeal, and Mr. Jones gives us no reason to do so here. See
Fairchild v. Workman, 579 F.3d 1134, 1144 (10th Cir. 2009).
*
Mr. Jones has supplied neither his state court application nor the order
disposing of it. Therefore, we rely on his representations.
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Mr. Jones’s application presents one issue appropriate for our review: he
argues that his § 2254 petition was not subject to dismissal as a second or
successive petition. COA Application 3. A COA should not issue unless “jurists
of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and . . . 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). Although the magistrate labeled Mr.
Jones’s petition “successive,” R. 24, the district court dismissed it as time barred,
id. at 34. The magistrate judge’s reasoning was sound: Mr. Jones’s previous
habeas petition was time barred when it was filed more than seven years ago. His
current petition is still time barred, unless he can show extraordinary
circumstances for equitable tolling. Holland v. Florida, — S. Ct. —, 2010 WL
2346549, at *12 (June 14, 2010); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.
1998). Finding Mr. Jones’s alleged mental incapacity to be “clearly without
merit,” the magistrate judge found his petition ineligible for equitable tolling. R.
24-25. In light of his frequent litigation since the statute of limitations began
running, a reasonable jurist would not debate that Mr. Jones’s claim is time barred
and ineligible for equitable tolling.
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We DENY a COA, DENY appellant’s motion seeking leave to proceed in
forma pauperis as moot, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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