FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 28, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
MARCUS E. LOLAR,
Petitioner - Appellant,
No. 19-5084
v. (D.C. No. 4:18-CV-00397-TCK-JFJ)
(N.D. Okla.)
SCOTT CROW,
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HOLMES, MURPHY, and CARSON, Circuit Judges.
_________________________________
Petitioner Marcus E. Lolar, an Oklahoma state prisoner proceeding pro se,
applied for a writ of habeas corpus in federal district court under 28 U.S.C. § 2254.
But the district court determined that Petitioner had not filed his application within
the requisite one-year limitations period. See 28 U.S.C. § 2244(d)(1) (“A 1-year
period of limitation shall apply to an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court.”). And so the district
court dismissed Petitioner’s application as untimely. Petitioner, however, believes
that his application was timely. He thus asks us for a certificate of appealability
*
This order and judgment is not binding precedent, except under the doctrines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.
(COA) so that he may formally challenge the district court’s take on his § 2254
application.1
The problem is that when a district court disposes of a § 2254 application on
procedural grounds, we may grant a COA only when “the prisoner shows . . . that
jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner cannot
satisfy that standard: the district court’s decision on timeliness was correct, and that
conclusion is not debatable.
To understand why, first consider that the one-year limitations period began to
run from the day that the judgment against Petitioner “became final by the conclusion
of direct review or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A).2 That day was July 20, 2015: the Oklahoma Court of Criminal
Appeals (OCCA) affirmed Petitioner’s conviction and sentence on April 21, 2015; he
1
After the district court dismissed his § 2254 application as untimely,
Petitioner moved for relief from the district court’s judgment under Federal Rule of
Civil Procedure 60(b). The district court ultimately denied that motion, but
Petitioner has not tried to appeal that denial. We therefore do not consider any of the
arguments that Petitioner raised in his Rule 60(b) motion below. See, e.g., Spitznas
v. Boone, 464 F.3d 1213, 1217–18 (10th Cir. 2006) (“If the district court correctly
treated the motion (or any portion thereof) as a ‘true’ Rule 60(b) motion and denied
it, we will require the movant to obtain a certificate of appealability (COA) before
proceeding with his or her appeal.”); Stouffer v. Reynolds, 168 F.3d 1155, 1172
(10th Cir. 1999) (“[A]bsent his filing an amended notice of appeal or second notice
of appeal, we lack jurisdiction to consider Petitioner’s claim the district court erred in
failing to grant [his Rule 60(b) motion].”).
2
Section 2244(d)(1) lists three other dates on which the statutes of limitations
can begin to run, but none of those dates apply today.
2
never sought any further direct review from the Supreme Court of the United States;
so his conviction became final ninety days later—again, July 20, 2015—when his
time for seeking that further review expired. See Gonzalez v. Thaler, 565 U.S. 134,
150 (2012) (holding that a “judgment becomes final” under § 2244(d)(1)(A) “when
the time for pursuing direct review in [the Supreme Court]”—that is, the time to
petition for certiorari—“expires”); see also Sup. Ct. R. 13.1 (requiring a party to
petition for certiorari “within 90 days after entry of the judgment”). Without some
form of tolling, the one-year limitations period started to run the next day on July 21,
2015, which means that Petitioner had through July 21, 2016, to apply for § 2254
habeas relief in federal district court. See Harris v. Dinwiddie, 642 F.3d 902, 906 n.6
(10th Cir. 2011) (observing that the limitations period under § 2244(d)(1) begins on
the day after the judgment becomes final and ends exactly one year later on the same
day).
But Petitioner did not file his § 2254 petition until July 30, 2018—over two
years after the default limitations period expired. So again, unless Petitioner can
show that “some other statute or legal principle tolled the one-year limitation[s]
period,” the district court was correct to conclude that his § 2254 application was
untimely. Minor v. Chapdelaine, 678 F. App’x 695, 696 (10th Cir. 2017)
(unpublished).
Petitioner recognizes as much and suggests that 28 U.S.C. § 2244(d)(2) can
come to his rescue. Under that statute, “[t]he time during which a properly filed
application for State post-conviction or other collateral review with respect to the
3
pertinent judgment or claim is pending shall not be counted toward” the one-year
limitations period. 28 U.S.C. § 2244(d)(2). And as Petitioner correctly notes, he
“properly filed” at least two applications for postconviction relief in Oklahoma state
court before the default limitations period expired on July 20, 2016: one on June 22,
2015, and the other on April 22, 2016.4 See Artuz v. Bennett, 531 U.S. 4, 8 (2000)
(“[A]n application is ‘properly filed’ when its delivery and acceptance are in
compliance with the applicable laws and rules governing filings.” (emphasis in
original omitted)); Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only
state petitions for post-conviction relief filed within the one year allowed by
[§ 2244(d)(1)] will toll the statute of limitations.”). Thus, because Petitioner believes
that the second of those state applications—the one he filed on April 22, 2016—is
still pending in Oklahoma state court, he likewise believes that § 2244(d)(2) is still
tolling part of the one-year limitations period. And of course, if the one-year
limitations period has not expired in its entirety to this day, Petitioner claims that his
§ 2254 application must have necessarily been timely.
Although Petitioner’s reasoning would be correct if it was grounded in fact, his
April 22, 2016 application is not still pending in Oklahoma state court. Indeed, on
August 31, 2016, the OCCA affirmed a lower state court’s order that had denied both
4
Petitioner has filed many other motions in Oklahoma state court. But none of
those motions affect tolling under § 2244(d)(2) or any other legal principle, so we
refrain from discussing them.
4
Petitioner’s June 22, 2015 and April 22, 2016 applications.5 So in the absolute best-
case scenario for Petitioner, § 2244(d)(2) tolled the one-year limitations period until
August 31, 2016—the day the OCCA issued its final ruling on Petitioner’s
applications for state postconviction relief. By extension, Petitioner thus had through
September 1, 2017, to apply for a writ of habeas corpus in federal district court under
§ 2254. Harris, 642 F.3d at 906 n.6. Under that reconfigured limitations period,
Petitioner’s § 2254 application—which, as a reminder, he filed on July 30, 2018—
was still nearly a year late.
Undeterred, Petitioner retorts that even if the OCCA technically disposed of
his state applications for postconviction relief on August 31, 2016, nobody realized it
at the time. Petitioner notes, for example, that nearly a year later in July 2017, the
Attorney General of Oklahoma represented that Petitioner’s April 22, 2016 state
application “appear[ed] to still be pending in the State district court.” Similarly, in
5
Petitioner believes that when the lower state court denied those applications,
the court managed to do so only because it had “improperly lumped” his April 22,
2016 application in with his June 22, 2015 application. From that belief, Petitioner
makes the curious jump in logic that the Oklahoma state courts have never
adjudicated his April 22, 2016 application “on the merits.” And in Petitioner’s view,
if the state courts have never adjudicated his April 22, 2016 application on the merits,
that application must still be pending in Oklahoma state court.
Although we follow Petitioner’s line of thought, we cannot endorse it. No
matter if the Oklahoma state courts adjudicated his April 22, 2016 application on the
merits, they did adjudicate it in some way or another by August 31, 2016. Merits or
no merits, that application was thus no longer pending in Oklahoma state court as of
that date. We need no other details about the state courts’ decision-making processes
to calculate tolling under § 2244(d)(2).
5
May 2018, Petitioner points out that the OCCA ordered an Oklahoma state district
court to determine whether Petitioner’s April 22, 2016 state application was still
pending. And finally, Petitioner observes that as late as October 2018—several
months after he filed his § 2254 application—another federal district court suggested
in a different action that Petitioner’s April 22, 2016 state application may have still
been pending. In short, even the trained lawyers and legal entities—the government,
the Oklahoma state courts, and at least one federal district court—seemed confused
about the procedural posture of Petitioner’s state application. And given that
confusion, Petitioner argues that we should not penalize him—a pro se “layman of
the law”—for likewise believing that his April 22, 2016 application was still pending.
We take Petitioner’s argument as a request to equitably toll the one-year
limitations period based on the uncertainty surrounding his April 22, 2016
application. See Holland v. Florida, 560 U.S. 631, 645 (2010) (holding that
§ 2244(d) “is subject to equitable tolling”). Equitable tolling is available when a
petitioner “shows ‘(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way’ and prevented timely filing.” Id.
at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
But even if we were to assume that Petitioner has diligently pursued his rights,
we do not see how the unclear status of his April 22, 2016 state application was an
extraordinary circumstance that stood in the way of a timely § 2254 federal
application. Although everybody’s general confusion about Petitioner’s April 22,
2016 state application may have led Petitioner to believe he had more time to file his
6
§ 2254 federal application, that confusion did not prevent Petitioner from applying
for § 2254 relief at an earlier date. In fact, Petitioner filed an earlier § 2254
application on November 11, 2016—well within the one-year limitations period after
factoring in the statutory tolling period under § 2244(d)(2)—but he voluntarily asked
the federal district court to dismiss that application before the court could rule on it.7
That prior attempt at federal habeas relief proves that Petitioner had the ability to
timely file a § 2254 application even as everybody else tried to sort out the posture of
his April 22, 2016 state application. This scenario thus seems to be akin to “a simple
miscalculation that leads to . . . miss[ing] a filing deadline,” which “does not warrant
equitable tolling.” Id. at 651–52; see also Al-Yousif v. Trani, 779 F.3d 1173, 1179
(10th Cir. 2015) (“Equitable tolling is a rare remedy to be applied in unusual
circumstances . . . .” (quoting Yang v. Archuleta, 525 F.3d 925, 929 (10th Cir.
2008))).
In the end, we therefore agree with the district court that Petitioner filed the
§ 2254 application at issue today after the one-year limitations period had expired. In
coming to that conclusion, we realize that even the attentive reader may have a
difficult time keeping track of the many dates we list above. Even so, we are
ultimately satisfied that no reasonable jurist could debate the timeliness of
7
As a side note, Petitioner’s earlier § 2254 application from November 11,
2016 had no tolling effect itself under § 2244(d)(2). See Duncan v. Walker, 533 U.S.
167, 181 (2001) (“[W]e are convinced that § 2244(d)(2) does not toll the limitation
period during the pendency of a federal habeas petition.”). The only statutory tolling
under § 2244(d)(2) stems from Petitioner’s June 22, 2015 and April 22, 2016 state
applications for postconviction relief.
7
Petitioner’s application. We thus DENY Petitioner’s request for a COA and
DISMISS this matter. We likewise DENY Petitioner’s motion for leave to proceed
in forma pauperis and DENY AS MOOT his motion for leave to correct or modify
the record.
Entered for the Court
Joel M. Carson III
Circuit Judge
8
Lolar v. Crow
Combined Opinion