F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 29, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DAVID O. MCMAHAN,
Petitioner-Appellant, No. 05-7115
v. (E.D. Oklahoma)
(D.C. No. 04-CV-396-W)
LENORA JORDAN, Warden,
Respondent-Appellee.
ORDER
Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.
David McMahan, an Oklahoma state prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) to appeal the district court’s decision
dismissing as untimely his 28 U.S.C. § 2254 petition for a writ of habeas corpus.
We deny Mr. McMahan’s application for a COA and we dismiss this appeal.
I. BACKGROUND
On April 11, 2001, a state court judge for the District Court of Marshall
County entered a judgment and sentence reflecting Mr. McMahan’s conviction.
Mr. McMahan was convicted by a jury for conspiracy to manufacture
methamphetamine, after former conviction of two felonies. Mr. McMahan did not
appeal his conviction, and the conviction became final in ten days, on April 21,
2001. See Rule 2.1(B), Rules of the Court of Criminal Appeals, O KLA . S TAT .
A NN ., tit. 22, Ch. 18 App.
On November 30, 2001, Mr. McMahan filed an application for post-
conviction relief in the Marshall County District Court. The State district court
denied Mr. McMahan’s petition on December 12, 2001. Mr. McMahan filed a
second post-conviction application on October 30, 2002, which was denied on
June 18, 2003. On September 3, 2003, the Oklahoma Court of Criminal Appeals
affirmed this denial. Mr. McMahan filed his § 2254 petition on September 7,
2004, in which he raised eleven claims. The district court dismissed these claims
as untimely. 1
II. DISCUSSION
In order for this court to grant a COA, Mr. McMahan must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To do so, Mr. McMahan must demonstrate “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
1
The district court did not rule upon the issuance of a COA. “Under our
Emergency General Order of October 1, 1996, we deem the district court’s failure
to issue a certificate of appealability within thirty days after filing the notice of
appeal as a denial of the certificate.” United States v. Kennedy, 225 F.3d 1187,
1193 n.3 (10th Cir. 2000) (citation omitted). We construe petitioner's notice of
appeal as a request for COA. See id.; F ED . R. A PP . P. 22(b)(2), and deem the COA
denied. See 10 TH C IR R. 22.1(C).
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been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). When a § 2254 petition is denied
by the district court for procedural reasons, as is the case here, the petitioner must
show “that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id.
For purposes of habeas review, the one-year statute of limitations began to
run at the time Mr. McMahan’s convictions became “final.” See 28 U.S.C. §
2244(d)(1)(A) (“A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from . . . the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for
seeking such review[.]”).
The limitations period began to run on April 21, 2001 and ran for 222 days
until Mr. McMahan filed his petition seeking post-conviction relief on November
30, 2001. The state court denied relief on December 12, 2001. Mr. McMahan did
not appeal this decision, and thus is became final thirty days later. O KLA . S TAT .
A NN . tit. 22, § 1087. The limitation period was thus tolled for 43 days until
January 11, 2002. His deadline for filing a § 2254 petition was June 4, 2002.
Mr. McMahan filed his § 2254 petition on September 7, 2004, more than
3
two years beyond the statutory deadline. Mr. McMahan’s additional state
postconviction filings did not further suspend the limitations period because they
too were filed after the one-year period expired.
We have carefully reviewed Mr. McMahan’s brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Mr. McMahan’s filings raises an issue which meets our standards for the grant
of a COA. For substantially the same reasons as set forth by the district court, we
cannot say that it is “debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484.
III. CONCLUSION
We DENY Mr. McMahan’s request for a certificate of appealability and
DISMISS the appeal.
Entered for the Court
Robert H. Henry
Circuit Judge
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