F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 13, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
D EN N IS N EA L C LA RK ,
Petitioner - A ppellant,
v. No. 06-6046
(W . D. Oklahoma)
STA TE OF O K LA H O MA , (D.Ct. No. 05-CV-1285-C)
Respondent - Appellee.
____________________________
OR D ER D EN YING LEAVE TO PROCEED
ON APPEAL IN FORM A PAUPERIS,
D EN Y IN G C ER TIFICATE OF APPEALABILITY,
A ND DISM ISSIN G A PPLIC ATIO N
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Dennis Neal Clark, a state prisoner proceeding pro se, 1 filed a 28 U.S.C. §
2254 motion to vacate, set aside or correct his sentence. The district court
dismissed the motion, concluding it was untimely under 28 U.S.C. § 2244(d)(1)
1
Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
which contains a one-year statute of limitations. Clark then filed a notice of
appeal 2 and an application to proceed in form a pauperis (ifp). The court denied
his motion to proceed ifp, certifying the appeal was not taken in good faith under
28 U.S.C. § 1915(a)(3) because his application to appeal failed to give a reasoned
nonfrivolous argument on the law and supporting facts as to why the dismissal of
his habeas petition was incorrect. See 28 U.S.C. § 1915(a)(3); F ED . R. A PP . P.
24(a)(3). In this Court, Clark requests a Certificate of Appealability (COA) and
again seeks leave to proceed ifp. See 28 U.S.C. § 2253(c)(1)(B); F ED . R. A PP . P.
22(b)(1), 24(a)(5).
Background
Clark’s habeas petition stems from four state cases. In one case, a jury
convicted Clark of two counts. He then pled guilty to three other pending cases
pursuant to a plea agreement. On December 20, 2002, he was sentenced to twenty
years imprisonment for the charges on which the jury found him guilty. At the
same time, pursuant to the plea agreement, the court sentenced him on the
remaining charges, running all sentences concurrently. Clark did not move to
withdraw his guilty pleas, file a direct appeal, or seek a writ of certiorari from the
2
“If an applicant files a notice of appeal, the district judge who rendered the
judgment must either issue a certificate of appealability [COA] or state why a certificate
should not issue.” F ED. R. A PP. P. 22(b)(1). The district court did not act on Clark’s
constructive request for a COA. A COA is deemed denied if the district court does not
address the issuance of a COA within thirty days. 10 TH C IR. R. 22.1(C).
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United States Supreme Court. As a result, the judgments on Clark’s convictions
became final ten days later, D ecember 30, 2002. O KLA . S TAT . TIT . 22,§ 1501;
O KLA . C RIM . A PP . R. 2.5(A) & 4.2(A). Clark filed his habeas petition in federal
court on November 3, 2005. Because the petition was signed on October 31,
2005, the district court deemed it filed on that date pursuant to the prisoner
mailbox rule. F ED . R. A PP . P. 4(c).
Certificate of Appealability
A COA is a jurisdictional pre-requisite to our review. M iller-El v.
Cockrell, 537 U .S. 322, 336 (2003). W e will issue a COA only if Clark makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this showing, he must establish that “reasonable jurists
could debate whether . . . the petition should have been resolved [by the district
court] in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted). Insofar as the district court dismissed Clark’s habeas
petition on procedural grounds, Clark must demonstrate both that “jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. “W here a
plain procedural bar is present and the district court is correct to invoke it to
dispose of the case, a reasonable jurist could not conclude either that the district
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court erred in dismissing the petition or that the petitioner should be allowed to
proceed further.” Id. W e review the district court’s factual findings for clear
error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282
(10th Cir. 2001).
Because Clark’s petition was filed on October 31, 2005, almost two years
after his conviction became final, his petition is untimely absent statutory or
equitable tolling. C lark claims statutory tolling. Section 2244(d)(1)(B) allows
the limitation period to begin as of “the date on which the impediment to filing an
application created by State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from filing by such State
action.” Clark claims this provision should toll the statute of limitations because,
pursuant to his petition on November 19, 2003, the state was ordered to provide
records to him in order that he might file an application for post-conviction relief.
Although the state made some records available a few days later, it did not fully
respond until January 27, 2005. Thus, he concludes the statute of limitations
should run from that date.
As the district court found, this provision is unavailing for Clark because
he failed to explain why the documents held by the state were necessary to pursue
his federal claim and he also did not show diligent pursuit of his claims even after
receiving the material. M iller v. M arr, 141 F.3d 976, 978 (10 th Cir. 1998)
(“[Petitioner] has provided no specificity regarding the alleged lack of access and
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the steps he took to diligently pursue his federal claims.”); see also M arsh, 223
F.3d at 1220. W e agree with the district court.
As an alternative, Clark implicitly raises 28 U.S.C. § 2244(d)(2), which
provides: “The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of limitation under
this subsection.” 28 U.S.C. § 2244(d)(2). Clark concludes the time limitations
should be tolled until the date his state post-conviction proceedings terminated,
August 31, 2005. However, his application for state post-conviction relief was
not filed until February 22, 2005, even though it is based on his Oklahoma
convictions which became final on December 30, 2002. Only state petitions for
post-conviction relief filed within the one year allowed by AEDPA will toll the
statute of limitations. See Burger v. Scott, 317 F.3d 1133, 1136-37 (10th Cir.
2003); Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir. 2003). Clark’s 2005 state
filings were not “properly filed” and do not toll his federal claim.
Since neither of Clark’s statutory tolling arguments have merit, his petition
is timely only if we apply equitable tolling, a remedy suitable only in
“extraordinary circumstances.” M arsh, 223 F.3d at 1220. Clark must show both
extraordinary circumstances preventing timeliness and diligent pursuit of his
claim. M iller, 141 F.3d at 978. W e agree with the district court that Clark has
failed to meet his burden under either of these requirements. The propriety of its
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dismissal of his petition is not reasonably debatable. Slack, 529 U.S. at 484.
Clark has failed to make a sufficient showing that he is entitled to a COA.
A ccordingly, w e deny his request for a COA.
IFP
After reviewing Clark’s contentions we conclude, as did the district court,
that this appeal is not taken in good faith. Coppedge v. United States, 369 U.S.
438, 446 (1962). His motion to proceed ifp is denied. Clark is required to
immediately remit the full amount of the filing fee. W e remind him of his
obligation to pay the filing fee even though his request for a COA has been
denied. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001) (dismissal
of an appeal does not relieve appellant of the obligation to pay the appellate filing
fee in full).
C lark’s applications are D ISM ISSED.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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