FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT October 2, 2018
Elisabeth A. Shumaker
Clerk of Court
AUBREY STUART THOMAS,
Petitioner - Appellant,
No. 18-5062
v. (D.C. No. 4:18-CV-00058-JED-FHM)
(N.D. Okla.)
JASON BRYANT, Warden,
Respondent - Appellee.
ORDER DENYING A CERTIFICATE OF APPEALABILITY AND
DISMISSING THE APPEAL
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
This appeal involves the dismissal of Mr. Aubrey Thomas’s habeas
petition. The district court based the dismissal on timeliness, and Mr.
Thomas requests a certificate of appealability. We deny his request for a
certificate because the district court’s dismissal of the petition is not
subject to reasonable debate.
To appeal, Mr. Thomas must obtain a certificate of appealability. 28
U.S.C. § 2253(c)(1)(A). Because the district court relied on timeliness, Mr.
Thomas must show that the disposition was at least reasonably debatable.
See Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007). Mr. Thomas
has not made this showing.
A habeas petitioner has one year to file a petition for a writ of habeas
corpus from a state court judgment. 28 U.S.C. § 2244(d)(1). The one-year
period ordinarily begins to run when the petitioner’s conviction becomes
final. 28 U.S.C. § 2244(d)(1)(A).
Mr. Thomas’s conviction became final on March 7, 2016, 90 days
after the Oklahoma Court of Criminal Appeals had affirmed Mr. Thomas’s
conviction. Nonetheless, Mr. Thomas waited until January 26, 2018 (over
22 months after his conviction had become final) to file the habeas
petition.
Because Mr. Thomas failed to file his petition within the one-year
period, he needed to either justify equitable tolling or demonstrate actual
innocence. Mr. Thomas tried to show both.
The district court rejected the argument for equitable tolling,
reasoning that Mr. Thomas had failed to show diligent pursuit of his rights
or an “extraordinary circumstance” that prevented timely filing. See Yang
v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Lawrence v.
Florida, 549 U.S. 327, 336 (2007)). On appeal, Mr. Thomas again urges
equitable tolling, but he does not challenge the district court’s reasoning.
For example, he does not discuss the district court’s concerns with his lack
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of diligence or the absence of extraordinary circumstances that would have
prevented timely filing.
Mr. Thomas instead argues that his constitutional rights were
violated. But a constitutional violation alone would not justify equitable
tolling. See Cole v. Warden, 768 F.3d 1150, 1158 (11th Cir. 2014) (“A
habeas petitioner is not entitled to equitable tolling simply because he
alleges constitutional violations at his trial or sentencing.”).
The district court also rejected Mr. Thomas’s argument of actual
innocence, reasoning that his evidence was not new and would not show
innocence. On appeal, Mr. Thomas disagrees, but he does not state what
was wrong with the district court’s analysis.
* * *
Mr. Thomas fails to address the district court’s reasoning on
timeliness. We therefore
decline to issue a certificate of appealability and
dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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