FILED
United States Court of Appeals
Tenth Circuit
February 1, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CECIL R. LAWRENCE,
Petitioner-Appellant, No. 10-7076
v. (E.D. of Okla.)
MIKE MULLIN, Warden, (D.C. No. 6:-09-00349-RAW-KEW)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges. **
Cecil Ray Lawrence, an Oklahoma state prisoner, seeks a certificate of
appealability (COA) to enable him to appeal the district court’s dismissal of his
28 U.S.C. § 2254 petition for a writ of habeas corpus as time-barred. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we construe Lawrence’s
filings liberally because he is proceeding pro se. See Hall v. Bellmon, 935 F.2d
1106, 1110 & n.3 (10th Cir. 1991). Nonetheless, no reasonable jurist could
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
conclude the district court’s dismissal was incorrect. See Slack v. McDaniel, 529
U.S. 473, 484 (2000). Accordingly, we DENY the application for a COA and
DISMISS the appeal.
I. Background
On July 28, 2005, Lawrence pleaded guilty to two counts relating to the
possession of cocaine and phencyclidine with intent to distribute. For these
crimes, he was sentenced to a total of 16 years’ imprisonment. On May 10, 2006,
Lawrence filed his first application for post-conviction relief in the Carter County
District Court, alleging ineffective assistance of counsel. The court denied
Lawrence’s application, and the Oklahoma Court of Criminal Appeals (OCCA)
affirmed the denial on December 5, 2006.
On October 15, 2007, Lawrence learned that Kevin McIntire, a drug task
force investigator in Carter County, was indicted for stealing evidence in drug
cases he had investigated. On March 30, 2009, Lawrence filed a second
application for post-conviction relief in the Carter County District Court,
contending this newly-discovered evidence provided a sufficient reason to allow
him to obtain relief. Once again, the district court denied his application, and the
OCCA affirmed the denial on June 22, 2009. He then filed a petition under 28
U.S.C. § 2254 for a writ of habeas corpus on September 17, 2009, which the
federal district court dismissed as time-barred.
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II. Analysis
The Antiterrorism and Effective Death Penalty Act conditions a petitioner’s
right to appeal a denial of habeas relief under § 2254 upon a grant of a COA.
28 U.S.C. § 2253(c)(1)(A). A COA requires the applicant to demonstrate a
“substantial showing of the denial of a constitutional right.” § 2253(c)(2). When
the district court denies a habeas petition on procedural grounds, a COA should
issue only when the prisoner shows 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.” Slack, 529 U.S. at 484. Lawrence does not satisfy this
standard.
Section 2244(d)(1) establishes a one-year statute of limitations for the
filing of a habeas petition. Relevant here are subsections (A), which commences
the limitations period on “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review,”
and (D), which commences the limitations period on “the date on which the
factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.” 28 U.S.C. §§ 2244(d)(1)(A), (D).
Under Oklahoma law, a conviction pursuant to a guilty plea becomes final
10 days after entry of judgment or sentence, unless the convicted person moves to
withdraw the plea within these 10 days. Fisher v. Gibson, 262 F.3d 1135, 1142
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(10th Cir. 2001) (citing Oklahoma rules for direct appeal of a conviction entered
under a guilty plea). Thus, the district court correctly determined Lawrence’s
statutory limitations period expired on August 7, 2006—one year and 10 days
after his conviction under a guilty plea. The district court also correctly
determined that Lawrence’s first post-conviction proceeding extended the
limitations deadline by 209 days until March 4, 2007, but that his second post-
conviction proceeding provided no statutory tolling because it was filed after the
relevant limitations period had expired.
Lawrence contends he discovered a factual predicate of his claims under 28
U.S.C. § 2244(d) on October 15, 2007, the date he learned of McIntire’s
conviction. Both the OCCA and the district court concluded Lawrence failed to
demonstrate his allegations concerning the investigator could serve as the factual
predicate for post-conviction relief. Even if both courts were wrong, Lawrence’s
claims would still be time-barred. Since § 2244(d)(1)(D) sets a 1-year time
limitation after the discovery of a factual predicate, Lawrence’s statutory
limitation period would still have expired in October 2008, but he did not file his
habeas petition until September 2009. Lawrence’s second post-conviction
proceeding in the Oklahoma state courts could not have provided statutory tolling
because it was filed in March 2009, also after the expiration of the hypothetically-
extended limitations period.
Therefore, no reasonable jurist could conclude the dismissal was incorrect.
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III. Conclusion
For the foregoing reasons, we DENY Lawrence’s request for a COA.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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