Carey v. Jones

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 21, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

TER RY GEN E C AR EY ,

Petitioner-A ppellant, No. 07-5032
v. (N.D. Oklahoma)
JUSTIN JONES, W arden, (D.C. No. 06-CV -37-P)

Respondent-Appellee.

OR DER

Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.

Terry Carey, proceeding pro se, seeks a certificate of appealability

(“COA”) to appeal the district court’s order denying his 28 U.S.C. § 2254 petition

for habeas corpus as untimely filed. See 28 U.S.C. § 2253(c)(1)(A) (providing

that an appeal may not be taken from the denial of a § 2254 habeas petition unless

the petitioner first obtains a COA). M r. Carey also seeks leave to proceed in

forma pauperis (“IFP”).

In his § 2254 petition, M r. Carey contends the prosecutor made false

statements and that he presented perjured testimony in violation of his due

process rights. He also argues that his counsel provided ineffective assistance

when he failed to object to these statements and testimony.
 I. BACKGROUND

A jury in the District Court of D elaw are County, Oklahoma convicted M r.

Carey of burglary after former conviction of two or more felonies. M r. Carey

received a sentence of fifty years’ imprisonment, with fifteen years suspended.

The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction on

direct appeal on February 2, 1996. M r. Carey did not seek a w rit of certiorari

from the United States Supreme Court.

On April 9, 2003, M r. Carey filed his first application for post-conviction

relief. According to M r. Carey, the trial court judge vacated the suspended

portion of his sentence. M r. Carey states he filed a second application for post-

conviction relief on August 18, 2004. The state district court judge denied the

requested relief on September 6, 2005, and the OCCA denied his appeal of this

order on November 22, 2005.

M r. Carey filed his federal petition under § 2254 on December 22, 2005, in

the W estern District of Oklahoma. The court transferred the petition to the

Northern District of Oklahoma, where it w as filed on January 19, 2005.

II. DISCUSSION

In order to obtain a COA, M r. Carey must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to do so,

M r. Carey “must show that reasonable jurists could debate whether . . . the

petition should have been resolved in a different manner or that the issues

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presented were adequate to deserve encouragement to proceed further.” M iller-El

v. Cockrell, 537 U.S. 322, 336 (2003) (alteration and internal quotation marks

omitted). “[A] claim can be debatable even though every jurist of reason might

agree, after the COA has been granted and the case has received full

consideration, that [the] petitioner will not prevail.” Id. at 338. W hen a district

court has dismissed a habeas petition on procedural grounds, a certificate w ill

only issue when “jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484

(2000).

Under 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.” In his COA application before us, M r. Carey

devotes little attention to addressing the untimeliness of his petition. Before the

district court, how ever, he argued that he was entitled to equitable tolling. He

asserted that from M arch 3, 1996 until August 30, 2006, he diligently sought to

obtain trial transcripts from the Delaware County Clerk’s office. The district

court concluded that M r. Carey was not entitled to statutory or equitable tolling.

Here, for substantially the same reasons as those set forth in the district

court’s order, we conclude that M r. Carey is not entitled to a COA. First, M r.

Carey is not entitled to statutory tolling. He filed his first post-conviction

application on April 9, 2004, almost six years after § 2244(d)(1)’s one-year

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limitations period expired. He filed his second application on August 18, 2005,

more than eight years after the expiration of the limitations period. Consequently,

M r. Carey’s federal habeas petition, which he filed on December 22, 2005, was

untimely filed.

As to equitable tolling, it “is only available w hen an inmate diligently

pursues his claims and demonstrates that the failure to timely file was caused by

extraordinary circumstances beyond his control.” M arsh v. Soares, 223 F.3d

1217, 1220 (10th Cir. 2000). Reasonable jurists would agree that the district

court was correct when it concluded that an “inmate’s lack of state court records

does not justify equitable tolling.” Rec. doc. 17 at 4, and n.1 (see id. at n.1

(collecting cases). Thus, M r. Carey has not shown that he diligently pursued his

claims and his case does not present “rare and exceptional circumstances”

warranting equitable tolling under 28 U.S.C. § 2244(d). Gibson v. Klinger, 232

F.3d 799, 808 (10th Cir. 2000) (internal quotation marks omitted). Accordingly,

we DENY M r. Carey’s request for a COA, DENY his motion to proceed IFP, and

DISM ISS the matter.

Entered for the Court,

ELISABETH A. SHUM AKER, Clerk

By:
Deputy Clerk

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