FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 1, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ALONZO G. DAVISON,
Petitioner - Appellant,
v. No. 17-5027
(D.C. No. 4:16-CV-00194-GKF-PJC)
TRACY McCOLLUM, Warden, (N.D. Okla.)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
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Alonzo Davison, a state prisoner appearing pro se, seeks a certificate of
appealability (“COA”) to challenge the dismissal of his 28 U.S.C. § 2254 petition. We
deny a COA and dismiss the appeal.
I
On October 16, 2002, Davison was convicted by a jury in Oklahoma state court of
one count of lewd molestation and one count of sexually abusing a minor child. He was
sentenced to consecutive prison terms of 50 years and 75 years. On April 28, 2004, the
Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the convictions, but reduced
his sentence to two concurrent 45-year terms. On April 29, 2013, Davison filed a state
*
This order is not binding precedent, except under the doctrines of law of the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.
application for post-conviction relief asserting a series of ineffective assistance of counsel
claims. The state trial court denied Davison’s application on the merits. Davison timely
appealed to the OCCA, which affirmed on April 21, 2015.
Davison filed a pro se § 2254 petition in the Northern District of Oklahoma on
April 11, 2016, asserting largely the same claims presented in his state post-conviction
application. The district court dismissed the petition as untimely, concluding Davison
failed to demonstrate he was entitled to equitable tolling. It declined to grant a COA.
Davison now seeks a COA from this court.
II
A petitioner may not appeal the denial of a § 2254 petition without a COA.
§ 2253(c)(1)(A). If a habeas petition is disposed of on procedural grounds, we will
issue a COA only if the petitioner shows 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Davison’s § 2254 petition is governed by the one-year limitations period set
forth in § 2244(d)(1). Under that provision, Davison was required to file suit within
one year of “the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.” § 2244(d)(1)(A).
Davison does not dispute that his conviction became final on July 28, 2004—ninety
days after the OCCA affirmed on direct appeal. See Fleming v. Evans, 481 F.3d
1249, 1257-58 (10th Cir. 2007). Thus, the limitations period expired on July 28,
2
2005. Davison did not file his habeas petition until April 11, 2016, more than ten
years late.
Davison argues that he is entitled to equitable tolling due to attorney
abandonment and mental illness.1 Equitable tolling may be appropriate if a litigant
establishes: “(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005). We review the district court’s denial of equitable tolling for abuse of
discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003).
Attorney abandonment may constitute an “extraordinary circumstance”
sufficient to toll the habeas limitations period. Maples v. Thomas, 565 U.S. 266,
281-82 (2012). As did the district court, we will assume that the limitations period
may be tolled from the time Davison’s direct appeal was decided through the date he
learned his post-conviction counsel had passed away in 2011. On appeal, Davison
argues that the district court should have further tolled the period from 2011 to 2013
because Davison required time to obtain his records and hire new counsel. However,
Davison has not explained why this process required more than the one-year
limitations period imposed in § 2244(d)(1).
“Equitable tolling of a limitations period based on mental incapacity is
warranted only in exceptional circumstances that may include an adjudication of
incompetence, institutionalization for mental incapacity, or evidence that the
1
Davison also asserted a claim of actual innocence below which he appears to
have abandoned on appeal.
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individual is not capable of pursuing his own claim because of mental incapacity.”
Reupert v. Workman, 45 F. App’x 852, 854 (10th Cir. 2002) (unpublished)
(quotations omitted). Davison argues he is entitled to equitable tolling on this basis
because he suffered a mild traumatic brain injury during a car accident in 1999, from
which he has experienced a variety of physical and mental symptoms requiring
multiple medications over the subsequent fifteen years. He provides medical
evidence from doctors who evaluated him between 2000 and 2002, but those records
do not suggest Davison was incapable of pursuing his claims from 2011 to 2016.
Further, as noted by the district court, many of the notes undermine Davison’s claim
that he was incapacitated for over a decade. We conclude the district court did not
abuse its discretion in denying equitable tolling without an evidentiary hearing. See
Hooks v. Workman, 606 F.3d 715, 731 (10th Cir. 2010).2
III
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
2
Davison’s state post-conviction application was not filed until after the
habeas limitations period expired, and thus does not provide a basis for statutory
tolling. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).
4