FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 29, 2016
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MATTHEW SHAWLEY,
Petitioner - Appellant,
v. No. 16-6111
(D.C. No. 5:15-CV-01168-C)
CARL BEAR, Warden, (W.D. Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, McKAY, and MORITZ, Circuit Judges.
Petitioner Matthew Shawley, a state prisoner proceeding pro se, seeks a
certificate of appealability to appeal the district court’s dismissal of his § 2254
habeas corpus action as time-barred.
In February 2011, Petitioner pled guilty to seventeen state felony charges.
He was then sentenced to a total combined sentence of fifty years of
imprisonment. Petitioner subsequently moved to withdraw his plea, but the state
district court denied his motion. This denial was affirmed on April 6, 2012, and
*
This order is not binding precedent except under the doctrines of law of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.
Petitioner’s conviction became final in July 2012.
On August 14, 2012, Petitioner filed his first federal petition for a writ of
habeas corpus. The magistrate judge issued a report and recommendation on
December 21, 2012, recommending the cause of action be dismissed without
prejudice for failure to exhaust available state court remedies on all claims.
Petitioner did not file an objection to this recommendation, nor did he file a
second amended petition containing only the claims that had already been
exhausted in the state court. On January 31, 2013, the district court entered an
order adopting the magistrate judge’s recommendation and dismissing the federal
habeas action without prejudice.
More than a year and a half later, on October 6, 2014, Petitioner filed an
application for post-conviction relief in the state district court. Following an
evidentiary hearing, the state court denied his application. This order was
affirmed on August 6, 2015.
Petitioner filed the instant federal habeas petition on October 14, 2015.
The magistrate judge recommended dismissal based on untimeliness. In
concluding the petition was untimely, the magistrate judge determined that the
applicable statute of limitations was not affected by Petitioner’s reliance on two
Supreme Court decisions recognizing that defense counsel may provide
constitutionally ineffective assistance at the plea-agreement stage, see Lafler v.
Cooper, 132 S. Ct. 1376 (2012); Missouri v. Frye, 132 S. Ct. 1399 (2012), since
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these decisions were issued well over a year before Petitioner filed this federal
habeas petition. “Even assuming that the Court recognized new, pertinent
constitutional rights in these decisions and further assuming the newly-recognized
constitutional rights were retroactively applicable to cases on collateral review,
these decisions were entered in March 2012”—more than a year before Petitioner
filed his state application for post-conviction relief and more than two years
before he filed this federal habeas petition. (R. at 126.) The magistrate judge
further concluded the Petitioner was not entitled to equitable tolling of the statute
of limitations. Although Petitioner argued he never received notice of the
“December 21, 2012, Order” and thus “believed that his Habeas Corpus Petition
was in fact still pending after December 21, 2012” (R. at 114), the magistrate
judge held that Petitioner had “not alleged that he was unaware of or did not
receive the Court’s Order entered in January 2013, adopting the Report and
Recommendation.” (R. at 131.) The magistrate judge concluded that Petitioner
had “provide[d] no credible reason for his delay between January 2013 and
October 2014 in seeking state post-conviction relief” (R. at 131), and he therefore
recommended dismissal of the second habeas petition as untimely.
The district court adopted the report and recommendation of the magistrate
judge and dismissed the habeas petition as untimely. Petitioner now seeks a
certificate of appealability to appeal this decision.
In his request for a certificate of appealability, Petitioner does not
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challenge the district court’s conclusion that the instant habeas petition was filed
outside of the applicable statute of limitations. Rather, he argues that the court
erred in denying equitable tolling for two reasons: (1) the magistrate judge failed
to consider the retroactive effect of Lafler and Frye, which were issued while his
first appeal to the Oklahoma Court of Appeals was still pending; and (2)
Petitioner “never received the Order entered on February 14, 2013,” because he
“was caught between transfers” when this order was issued. (Br. at 3.)
After thoroughly reviewing Petitioner’s arguments and the record on
appeal, we conclude that reasonable jurists would not debate the district court’s
dismissal of the habeas petition as time-barred. The magistrate judge correctly
concluded that Lafler and Frye did not make Petitioner’s filing timely, since these
opinions were issued more than a year before he filed his state application for
post-conviction relief and more than two years before he filed the instant federal
habeas petition. Moreover, contrary to Petitioner’s contentions, these cases do
not prove that equitable tolling must be granted in order to prevent a fundamental
miscarriage of justice.
As for Petitioner’s second argument, despite the discrepancy in the dates,
this appears to be an argument that he did not receive the district court’s January
31, 2013 order adopting the magistrate judge’s recommendation that the first
habeas petition be dismissed without prejudice for lack of exhaustion. Even if we
were to consider this argument, which was first raised in Petitioner’s objection to
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the magistrate judge’s recommendation in this case, we conclude that reasonable
jurists would still not debate the district court’s denial of equitable tolling.
Petitioner failed to present any evidence to support this contention and, moreover,
“lack of notice can provide grounds for equitable tolling only if the prisoner
‘acted diligently in the matter.’” Santini v. Clements, 498 F. App’x 807, 810
(10th Cir. 2015) (quoting Woodward v. Williams, 263 F.3d 1135, 1143 (10th Cir.
2001)). Here, “[t]he record is void of any evidence that [Petitioner] acted
diligently to ensure that he was informed as to the status of his case during the
times that the . . . limitations period ran.” Id. Petitioner has provided no
explanation as to why he failed to enquire as to the status of his first federal
habeas petition or to take any other action to pursue his claims from at least
January 2013 until October 2014. Under these circumstances, reasonable jurists
would not debate whether the district court abused its discretion in denying
equitable tolling.
We therefore DENY Petitioner’s request for a certificate of appealability
and DISMISS the appeal. Petitioner’s motion to proceed in forma pauperis on
appeal is GRANTED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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