FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 27, 2018
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Elisabeth A. Shumaker
Clerk of Court
DARRIUS DAJUAN COHEE,
Petitioner - Appellant,
v. No. 18-6071
(D.C. No. 5:17-CV-01384-R)
JAMES YATES, (W.D. Okla.)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY *
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Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
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Darrius Cohee seeks a certificate of appealability (“COA”) to appeal the
district court’s denial of his 28 U.S.C. § 2254 petition. We deny a COA and dismiss
the appeal.
I
In February 2014, Cohee pled guilty in Oklahoma state court to conspiracy to
traffic a controlled dangerous substance and aggravated trafficking in illegal drugs.
He was sentenced to eighteen years’ imprisonment. Cohee did not file a direct
*
This order is not binding precedent, except under the doctrines of law of the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.
appeal, and his attempts to obtain relief through collateral state proceedings were
unsuccessful.
He then filed a § 2254 habeas petition in district court. A magistrate judge
recommended that the application be dismissed as untimely. After Cohee filed
objections, the district court adopted the recommendation and dismissed Cohee’s
petition. This timely appeal followed.
II
A petitioner may not appeal the denial of habeas relief under § 2254 without a
COA. 28 U.S.C. § 2253(c)(1). We may issue a COA “only if the applicant has made
a substantial showing of the denial of a constitutional right.” § 2253(c)(2). To
satisfy this standard, Cohee must show “that reasonable jurists could debate whether
(or, for that matter, agree that) 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) (quotation omitted).
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a
one-year limitations period. 28 U.S.C. § 2244(d)(1). In this case, the limitations
period began to run on the date on which Cohee’s judgment became final.
§ 2244(d)(1)(A); Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Because
Cohee did not appeal, his conviction became final ten days after the entry of
judgment, on March 6, 2014. See Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir.
2006). Cohee filed his habeas petition on December 29, 2017—over two years after
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the limitations period expired. Under § 2244(d)(1), this action is therefore untimely
absent equitable tolling. 1
Cohee argues that he is entitled to equitable tolling based on ineffective
assistance of counsel, abuse of discretion by the trial court, and errors by the
Oklahoma Court of Criminal Appeals (“OCCA”). According to Cohee, during the
ten-day period following his guilty plea, his trial attorney ignored his calls. Cohee
contends that his attorney’s conduct constituted an improper denial of his Sixth
Amendment right to counsel during appellate proceedings, which should render his
petition timely. But as the magistrate judge properly held, Cohee failed to show that
he “diligently pursue[d]” this claim below and has not “demonstrate[d] that the
failure to timely file was caused by extraordinary circumstances beyond his control.”
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).
Cohee’s remaining arguments fare no better. He argues that the trial court
committed abuse of discretion, but provides little detail. See Carney v. Okla. Dep’t
of Pub. Safety, 875 F.3d 1347, 1351 (10th Cir. 2017) (“Although we construe [a pro
se litigant’s] papers liberally, we cannot make arguments for him.” (citation
omitted)). Cohee also argues that the OCCA erred by failing to engage in plain error
review of inadmissible evidence, refusing to reach his application on appeal, and
refusing to rule on his request for an evidentiary hearing. Because his claims are
time-barred, we do not address the merits of the OCCA’s decision.
1
Cohee is not entitled to statutory tolling because his application for post-
conviction relief was filed after the AEDPA limitations period had ended. See Fisher
v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).
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III
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
Cohee’s motion to proceed in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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