F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 28, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DONALD EUGENE MITCHELL, JR.,
Petitioner-Appellant,
v. No. 06-5102
MARTY SIRMONS, Warden; (D.C. No. 05-CV-298-JHP-FHM)
(N. D. Oklahoma)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.
Donald Eugene Mitchell, Jr., an Oklahoma prisoner appearing pro se, seeks a
certificate of appealability (COA) in order to challenge the district court’s denial of his 28
U.S.C. § 2254 habeas petition. Because Mitchell has failed to make “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his
request and dismiss the matter.
I.
In early 2002, Mitchell was convicted by a jury in the District Court of Tulsa
County, Oklahoma, of first degree murder and two counts of shooting with intent to kill.
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
Mitchell was sentenced to life imprisonment with the possibility of parole for the murder
conviction, and fifteen years’ imprisonment for each of the other two convictions.
Mitchell filed a direct appeal and, on June 2, 2003, the Oklahoma Court of Criminal
Appeals (OCCA) affirmed his convictions. Mitchell did not file a petition for writ of
certiorari with the United States Supreme Court, nor did he thereafter seek post-
conviction relief in the Oklahoma courts.
On May 31, 2005, Mitchell filed a federal habeas petition alleging seven claims for
relief. Respondent moved to dismiss Mitchell’s petition on statute of limitations grounds.
On March 23, 2006, the district court granted respondent’s motion and dismissed
Mitchell’s petition. Although Mitchell filed a motion to alter or amend judgment, the
district court denied that motion. The district court also denied Mitchell’s request for a
COA.
II.
The denial of a state prisoner’s petition for federal habeas relief pursuant to 28
U.S.C. § 2254 may be appealed only if the district court or this court first issues a COA.
28 U.S.C. § 2253(c)(1)(A). “A certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Because the district court denied Mitchell’s petition on procedural
grounds, we may issue a COA if he demonstrates both 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
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its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
We conclude Mitchell has failed to demonstrate his right to a COA. As the district
court correctly noted in its order of dismissal, “[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.” 28 U.S.C. § 2244(d)(1). Mitchell’s convictions were
affirmed by the OCCA on direct appeal on June 2, 2003, and his convictions thereafter
became final for federal habeas purposes on September 2, 2003.1 Thus, Mitchell had one-
year, or until September 2, 2004, in which to file a federal habeas petition challenging his
state convictions. As indicated, however, Mitchell did not file his petition until May 31,
2005, approximately nine months after the one-year limitations period had expired.
Although Mitchell contends he is entitled to equitable tolling of the one-year limitations
period because his appellate counsel allegedly never informed him of the OCCA’s
decision, his own pleadings indicate that he became aware of the OCCA’s decision,
through his mother, in June of 2004. Thus, he is not entitled to equitable tolling. See
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (noting that equitable tolling may
be applied “when an inmate diligently pursues his claims and demonstrates that the
failure to timely file was caused by extraordinary circumstances beyond his control.”).
1
Under Supreme Court Rule 13.1, Mitchell had ninety days following the OCCA’s
decision in which to file a petition for a writ of certiorari with the United States Supreme
Court.
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The request for a COA is DENIED and the matter is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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