FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 3, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JOHN GLEN BOHON,
Petitioner-Appellant, No. 07-5169
v. Northern District of Oklahoma
STATE OF OKLAHOMA and BRUCE (D.C. No. 4:07-CV-00349-CVE-FHM)
HOWARD, Warden,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, ANDERSON and McCONNELL, Circuit Judges.
John Glen Bohon, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) that would allow him to appeal from the district court’s order
denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §
2253(c)(1)(A). Because we conclude that Mr. Bohon has failed to make “a
substantial showing of the denial of a constitutional right,” we deny his request
for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
I. BACKGROUND
On May 23, 2003, Mr. Bohon was convicted in Oklahoma state court on
one count of lewd molestation. He was sentenced to six years’ imprisonment.
Mr. Bohon timely appealed his conviction to the Oklahoma Criminal Court of
Appeals (OCCA), which unanimously affirmed on May 27, 2004. Mr. Bohon
never sought certiorari in the United States Supreme Court. Instead, on December
1, 2003, he filed a motion for judicial review of his sentence pursuant to Okla.
Stat. tit. 22, § 982a. The state district court denied review on December 18, 2003.
Thereafter, Mr. Bohon filed a motion to modify his sentence on July 23, 2004; it
was denied on April 29, 2005. More than a year later, on September 1, 2006, he
filed an application for post-conviction relief in state district court. The
application was denied on March 16, 2007, and the OCCA affirmed the district
court’s denial of relief on May 9, 2007. Finally, on June 20, 2007, Mr. Bohon
filed a petition under 28 U.S.C. § 2254 in federal court alleging numerous
violations of his constitutional rights. The district court denied his petition as
time-barred under 28 U.S.C. § 2244. In his application for a COA, Mr. Bohon
challenges that determination.
II. DISCUSSION
The denial of a motion for relief under 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 COA will issue “only if the applicant has made a substantial
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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order
to make such a showing, a petitioner must demonstrate that “reasonable jurists
could debate whether . . . the petition should have 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). Where, as here, the district court denies habeas relief
on procedural grounds, the petitioner must demonstrate that “jurists of reason of
reason would find it debatable whether the district court was correct in its
procedural ruling.” Id. at 478.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
imposes a one-year statute of limitations on § 2254 habeas petitions, running from
the latest of (1) the date the judgment of conviction becomes final, (2) the date on
which an “impediment created by the state in violation of the Constitution or laws
of the United States is removed,” (3) the date on which the Supreme Court first
recognizes the constitutional right asserted, or (4) “the date on which the factual
predicate of the . . . claims presented could have been discovered through . . . due
diligence.” 28 U.S.C. § 2244(d). Because Mr. Bohon failed to file a petition for
writ of certiorari in the United States Supreme Court, his conviction became final
on August 25, 2004, ninety days after OCCA denied relief on direct appeal. See
Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Thus, absent statutory or
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equitable tolling, Mr. Bohon had one year, from August 25, 2004, to August 25,
2005, to file his habeas petition. He waited, however, until June 20, 2007.
Mr. Bohon’s petition is not eligible for statutory tolling. “The time during
which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall not be
counted toward any period limitation.” 28 U.S.C. § 2244(d)(2). However, even
disregarding the time during which each of Mr. Bohon’s post-conviction
proceedings was under submission, more than a year passed between the date his
conviction became final and the date he filed his petition for habeas relief in
federal district court. Indeed, more than a year elapsed between the date his
conviction became final and the date he filed his first petition for post-conviction
relief in state court. 1 Statutory tolling therefore does not make his federal petition
timely.
We also agree with the district court that Mr. Bohon is not eligible for
equitable tolling. A petitioner is eligible for equitable tolling only when he
“diligently pursues his claims and demonstrates that the failure to timely file was
1
Although Mr. Bohon filed motions for sentence modification before the
limitations deadline, relief under § 982a is discretionary and a denial of relief is
not appealable. Therefore, these motions do not constitute an application for
post-conviction relief, and they do not toll the limitations period. See Heinken v.
Higgens, 175 Fed. App’x 986, 988 n. 2 (10th Cir. 2006); accord Bridges v.
Johnson, 284 F.3d 1201, 1203–04 (11th Cir. 2002). We also note that even if Mr.
Bohon’s §982a motions did toll the limitations period for the time that they were
pending, his § 2254 petition would still be untimely.
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caused by extraordinary circumstances beyond his control.” March v. Soares, 223
F.3d 1217, 1220 (10th Cir. 2000). Mr. Bohon fails to claim, let alone
demonstrate, extraordinary circumstances beyond his control that prevented his
filing of a timely petition. Instead, he argues that he is actually innocent and that
the procedural bar should be excused to prevent a fundamental miscarriage of
justice. To prevail on such a claim, Mr. Bohon must “support his allegations of
constitutional error with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324
(1995). Mr. Bohon’s claim of actual innocence is unsupported by any new
reliable evidence. Instead, he relies on vague and conclusory statements and on
excerpts from the trial transcript to support his assertion of actual innocence.
These are insufficient to demonstrate a fundamental miscarriage of justice and
excuse Mr. Bohon’s failure to file a timely petition.
III. CONCLUSION
Accordingly, we DENY Mr. Bohon’s request for a COA and DISMISS this
appeal.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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