FILED
United States Court of Appeals
Tenth Circuit
July 15, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
MARK ANTHONY TROUTT,
Petitioner - Appellant,
No. 08-6055
v. (D.C. No. 07-CV-01062-D)
(W.D. Okla.)
JUSTIN JONES, Director,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before TACHA, KELLY, and McCONNELL, Circuit Judges.
Petitioner-Appellant Mark Anthony Troutt was convicted of distribution of
a controlled dangerous substance (cocaine) after five previous felony convictions
and sentenced to 35 years’ imprisonment. On March 31, 2006, the Oklahoma
Court of Criminal Appeals (“OCCA”) affirmed his conviction. Mr. Troutt
attempted to obtain state post-conviction relief, but his application was stricken
for failure to follow local rules.
Proceeding pro se, Mr. Troutt filed a habeas petition pursuant to 28 U.S.C.
§ 2254, raising thirteen grounds for relief. He first claimed that the striking of his
state application for post-conviction relief violated his due process and equal
protection rights. His remaining claims alleged, inter alia, ineffective assistance
of trial and appellate counsel with respect to the pretrial investigation, trial, and
sentence. The magistrate judge issued a detailed 16-page report and
recommendation concluding that Mr. Troutt’s first claim should be dismissed for
failure to state a cognizable claim for habeas relief, that the remaining claims
should be summarily dismissed as time-barred pursuant to 28 U.S.C.
§ 2244(d)(1)(A) or, alternatively, for failure to exhaust state remedies, and that
his pending motions should be denied. The district court adopted the magistrate
judge’s recommendation, dismissed the habeas petition, and denied the pending
motions.
Mr. Troutt now seeks a certificate of appealability (“COA”) to appeal 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). With respect to the first claim, which the district
court rejected on the merits, we may issue a COA only if Mr. Troutt makes “a
substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), such
that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484
(2000). With respect to his remaining claims, which were dismissed on
procedural grounds, we may issue a COA only if he makes a substantial showing
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 its procedural ruling.” Id.
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Based upon our independent review of the record, and for substantially the same
reasons given by the magistrate judge and adopted by the district court, we
conclude that no reasonable jurist could debate the correctness of the district
court’s rulings.
Mr. Troutt raises four additional arguments on appeal, one of which claims
that his habeas petition is not time-barred because the limitations period runs
from when the state court mandate was issued, not from when the state court’s
judgment was entered. However, for purposes of 28 U.S.C. § 2244(d)(1)(A), a
conviction is final when, “following a decision by the state court of last resort . . .
the United States Supreme Court has denied review, or, if no petition for
certiorari is filed, after the time for filing a petition for certiorari with the
Supreme Court has passed.” Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir.
2001) (internal quotation marks omitted). The time for filing a petition with the
Supreme Court is 90 days after entry of the state court judgment, see Sup. Ct. R.
13(1), which runs from the date of the entry of the judgment, not from the
issuance date of the mandate, see Sup. Ct. R. 13(3).
Mr. Troutt also argues his petition is timely because “the time was tolled
during all proceedings.” The only “proceeding” that could have tolled the
limitations period was Mr. Troutt’s state post-conviction proceeding. 28 U.S.C. §
2244(d)(2). However, as the magistrate judge and district court properly
concluded, that time cannot be tolled here because the state court determined that
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Mr. Troutt’s post-conviction application was not “properly filed.” Id.; see Burger
v. Scott, 317 F.3d 1133, 1139 (10th Cir. 2003) (explaining that we look to state
procedural law to determine whether state petition is “properly filed”).
Mr. Troutt’s remaining claims, at best, amount to due-process challenges to
Oklahoma’s post-conviction procedures and therefore do not state constitutional
claims cognizable in a federal habeas proceeding. United States v. Dago, 441
F.3d 1238, 1248 (10th Cir. 2006).
Petitioner’s request for a COA is DENIED and his appeal is DISMISSED.
Petitioner’s motion for appointment of counsel is DENIED. Petitioner is relieved
of any obligation to pay the appellate filing and docketing fees as the district
court granted Petitioner’s motion to proceed IFP on appeal and 28 U.S.C.
§ 1915(b)(1) does not apply to habeas proceedings. McIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 811 (10th Cir. 1997).
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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