F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 9, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JIM M Y GARRETT, JR.,
Petitioner - A ppellant,
No. 06-5160
vs. (D.C. No. 06-CV-0002-CVE-SAJ)
(N.D. Okla.)
BRUCE HOW ARD, W arden,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE O F APPEALABILITY
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
Petitioner-Appellant Jimmy Garrett, Jr., an state inmate appearing pro se,
seeks a certificate of appealability (“COA”) so that he may challenge the district
court’s dismissal of his petition for a writ of habeas corpus. See 28 U.S.C. §
2253(c); M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). The district court held
that M r. Garrett’s petition was time-barred under the one-year limitation period of
28 U.S.C. § 2244(d). Because M r. Garrett has failed to demonstrate that the
district court’s ruling concerning the timeliness of his petition is reasonably
debatable, w e DENY his request for a COA and DISM ISS his appeal.
Background
On July 30, 2004, M r. Garrett pled guilty to two counts of injury to a minor
child. He received concurrent sentences of seven years (with three years
suspended) and a fine of $500 on Count 1 and five years (with one year
suspended) on Count 2. M r. G arrett did not file a motion to withdraw his plea, a
necessary prerequisite to a direct appeal before the Oklahoma Court of Criminal
Appeals (“OCCA”). See Okla. Crim. App. R. 4.2.
One year later, on August 1, 2005, M r. Garrett filed a petition for 365 day
judicial review. This letter request was denied in an order dated A ugust 8. M r.
Garrett then filed an application for state post-conviction relief on August 15,
which was denied by an order filed on September 23. The OCCA affirmed the
order denying post-conviction relief on November 14.
M r. Garrett subsequently filed his federal habeas petition on January 3,
2006. The state moved to dismiss the petition on the ground that it was not
timely filed, and the district court granted this motion and dismissed the petition
with prejudice. R. Doc. 12. On appeal, M r. Garrett argues the merits of his
claims and asserts that he was entitled to equitable tolling of the limitation period.
Discussion
W e may issue a CO A only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The applicant
-2-
must demonstrate “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right . . . .” Slack v.
M cDaniel, 529 U.S. 473, 484 (2000). W here, as here, the district court dismisses
a petition on procedural grounds without reaching the merits, the applicant must
also convince us “that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id. In evaluating M r.
Garrett’s claims, we construe his pro se filings liberally. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972).
The statute provides that “[a] 1-year period of limitations 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). In this case, the limitation
period began to run on “the date on which the judgment became final by the . . .
expiration of time for seeking [direct] review .” Id. § 2244(d)(1)(A ). Under state
procedural rules, a defendant must file an application to withdraw his guilty plea
within ten days of the pronouncement of judgment and sentence against him in
order to commence an appeal. See Okla. Crim. App. R. 4.2. His failure to do so
means that his conviction became final for the purposes of § 2244 on August 9,
2004–ten days after the pronouncement of judgment and sentence on July 30–and
he had until August 9, 2005, to file a federal habeas petition. See Fisher v.
Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001).
The running of the one-year limitation period is tolled during the pendency
-3-
of state post-conviction relief proceedings. See 28 U.S.C. § 2244(d)(2). On
August 1, 2005, M r. Garrett filed a petition seeking judicial review and
modification of his sentence. Okla. Stat. Ann. tit. 22, § 982a. This did not toll
the federal limitation period, however, because such a petition seeks discretionary
review and is not appealable, meaning that it is not an “application for State post-
conviction or other collateral review” under § 2244. See Todd v. M iller, No. 06-
5057, 2006 W L 2328757, at *2 (10th Cir. Aug. 11, 2006). M oreover, M r.
Garrett’s petition for state post-conviction review , filed on August 15, did not toll
the one-year limitation period, which had already expired on August 9. See
Fisher, 262 F.3d at 1142-43.
M r. Garrett argues that we should consider the limitation period equitably
tolled because he is actually innocent. See Schlup v. Delo, 513 U.S. 298, 324-29
(1995). W e have held that an inmate must diligently pursue his claims in order to
benefit from equitable tolling, M iller v. M arr, 141 F.3d 976, 978 (10th Cir. 1998),
and we agree with the district court that no evidence suggests that M r. Garrett
diligently pursued his claims and was somehow misled or hampered by the state.
R. Doc. 12 at 6. M r. Garrett’s general assertions that his attorney did not inform
him of his right to appeal and that the prison lacked adequate legal research
materials are insufficient. M arsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.
2000); M iller, 141 F.3d at 978.
M oreover, M r. Garrett’s legal argument of actual innocence is not
-4-
convincing. M r. Garrett contends that, although he pled guilty to two counts of
injury to a minor child, his actions were exempted from criminal sanction by
Okla. Stat. Ann., tit. 21, § 844. Under § 844, an adult is allow ed to use “ordinary
force as a means of discipline, including but not limited to spanking, switching or
paddling.” The factual question of whether M r. Garrett’s actions amounted to
“ordinary force as a means of discipline” was ripe for disposition at a trial.
However, M r. Garrett waived his right to trial by pleading guilty, and the
sentencing judge must necessarily have concluded that the facts M r. Garrett
admitted exceeded “ordinary force.” M r. Garrett has not demonstrated a
substantial likelihood that he is actually innocent.
W e DENY M r. Garrett’s request for a COA and DISM ISS his appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-5-