FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 31, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DARRELL WEAVER,
Petitioner - Appellant,
v. No. 17-6169
(D.C. No. 5:16-CV-01051-R)
CARL BEAR, (W.D. Okla.)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
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Darrell Weaver, a state prisoner appearing pro se,1 seeks a certificate of
appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C.
§ 2254 application for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A)
(requiring a COA to appeal “the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a State court”).
*
This order is not binding precedent, except under the doctrines of law of the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.
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Because Mr. Weaver is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s]
arguments liberally; this rule of liberal construction stops, however, at the point at which
we begin to serve as his advocate.”).
Exercising jurisdiction under 28 U.S.C. § 1291, we deny a COA and dismiss this
matter.
I. BACKGROUND
In 2003, an Oklahoma state court jury convicted Mr. Weaver of two felony
counts of first-degree rape. He was sentenced to two consecutive 50-year terms of
imprisonment. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his
conviction and sentence on March 29, 2004. On May 18, 2015—more than 11 years
later—Mr. Weaver filed a petition for post-conviction relief in Oklahoma state trial
court. The trial court dismissed his petition on June 1, 2015. He appealed to the
OCCA, which remanded to the trial court for entry of an order setting forth findings
of fact and conclusions of law as required by state law. Following remand, the trial
court held an evidentiary hearing and issued a new order denying his application for
post-conviction relief. The OCCA affirmed on October 19, 2015.
On September 9, 2016, Mr. Weaver filed an application for habeas relief under
28 U.S.C. § 2254 in the United States District Court for the Western District of
Oklahoma. The federal district court ruled on June 28, 2017, that Mr. Weaver failed
to demonstrate he was entitled to equitable tolling based on actual innocence and
dismissed his application as time-barred. Weaver v. Bear, No. CIV-16-1051-R, 2017
WL 2799305, at *2 (W.D. Okla. June 28, 2017); see 28 U.S.C. § 2244(d)(1). The
district court denied Mr. Weaver’s request for a COA. It entered judgment by separate
order that same day. Mr. Weaver filed a timely appeal on July 18, 2017. See Fed. R.
2
App. P. 4(a)(1)(A); see also Manco v. Werholtz, 528 F.3d 760, 761 (10th Cir. 2008)
(applying Federal Rule of Appellate Procedure 4(a) to a § 2254 appeal).
II. DISCUSSION
A. Legal Background
1. Certificate of Appealability
A COA is a jurisdictional prerequisite to this court’s review of a
§ 2254 application. 28 U.S.C. § 2253(c)(1)(A); Miller–El v. Cockrell, 537 U.S. 322,
335-36 (2003). To receive a COA, an applicant must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district
court denied Mr. Weaver’s habeas application on procedural grounds, he must show
(1) “that jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right,” and (2) “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). “Each component of [this]
showing is part of a threshold inquiry, and a court may find that it can dispose of the
application in a fair and prompt manner if it proceeds first to resolve the issue whose
answer is more apparent from the record and arguments.” Id. at 485. The second
component—the procedural issue—is frequently the easier one to resolve. See id.
2. Habeas Claims—Statute of Limitations and Actual Innocence Exception
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
establishes a one-year statute of limitations period to file applications for habeas
relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1). The limitation period
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typically begins running on “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). “Under [§ 2244(d)(1)(A)], a petitioner’s conviction is not final and
the one-year limitation period for filing a federal habeas petition does not begin to run
until . . . after the United States Supreme Court has denied review, or, if no petition for
certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court
has passed.” Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (quotations
omitted).
“[I]n rare and exceptional circumstances” equitable factors permit the tolling of
AEDPA’s one-year statute of limitations. Gibson v. Klinger, 232 F.3d 799, 808 (10th
Cir. 2000) (quotations omitted). Mr. Weaver can avoid the time bar only if he can show
(1) that he is actually innocent, McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32 (2013),
or (2) that he has diligently pursued a judicial remedy but extraordinary circumstances
beyond his control prevented him from meeting the deadlines, Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005). Only the first exception is at issue here.
Actual innocence serves more as an “equitable exception to § 2244(d)(1), not an
extension of the time statutorily prescribed.” McQuiggin, 133 S. Ct. at 1931 (citing Rivas
v. Fischer, 687 F.3d 514, 547 n.42 (2nd Cir. 2012) (distinguishing from “equitable
tolling” a plea to override the statute of limitations when actual innocence is shown)). In
other words, a defendant who makes a “credible showing of actual innocence” may
pursue a § 2254 application even if the statute of limitations has expired. Id. at 1935.
Prisoners who challenge their state court convictions and “assert convincing
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actual-innocence claims” need not prove they have diligently pursued a judicial remedy
to have their claims heard in federal court, although “timing [is] a factor relevant in
evaluating the reliability of a petitioner’s proof of innocence.” Id.
For the actual innocence exception to apply, Mr. Weaver must “support his
allegations of constitutional error with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that
was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995) (emphasis added).
He must also show that “it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.” McQuiggin, 133 S. Ct. at 1935
(quotations omitted).
B. Analysis
Mr. Weaver filed his § 2254 application long after AEDPA’s one-year statute of
limitations had expired. His conviction became final on June 27, 2004, when the 90-
day time period for filing a certiorari petition with the United States Supreme Court
expired. See Locke, 237 F.3d at 1273. Because that period expired on a Sunday, Mr.
Weaver had until Monday, June 28, 2004, to file a timely certiorari petition. See Sup. Ct.
R. 30.1. He did not file such a petition, so the statute of limitations started to run the next
day—June 29, 2004. See Harris v. Dinwiddie, 642 F.3d 902, 906, n.6 (10th Cir. 2011)
(“The statute [of limitations] d[oes] not start to run until . . . the day following the
certiorari window.”). Mr. Weaver had up to and including June 29, 2005, in which to
file his § 2254 application. See 28 U.S.C. § 2244(d)(1)(A); Harris, 642 F.3d at 906, n.6.
He did not file a § 2254 application until September 9, 2016—over 11 years after the
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statute of limitations expired. Absent equitable tolling or another exception to AEDPA’s
one-year time limit, his action is time-barred.
Mr. Weaver maintains his actual innocence. See Aplt. Br. at 3. Recognizing that
he proceeds pro se, we construe this claim as an argument that he can avoid the time
bar because he is entitled to equitable tolling on the basis of actual innocence. See
McQuiggin, 133 S. Ct. at 1931 (permitting habeas applicants to overcome AEDPA’s
one-year statute of limitations by demonstrating actual innocence). This argument is
unavailing.
The evidence Mr. Weaver provided the district court in support of his actual
innocence claim was neither new nor reliable. See Schlup, 513 U.S. at 324. He proffered
a letter from an unidentified individual that alleged Mr. Weaver’s rape victim—his
stepdaughter—tried to tell authorities Mr. Weaver was innocent. The letter suggests that
police might not have accepted the victim’s recantation because “too much time had
passed [and] she should have told them the truth to begin with.” Weaver, 2017 WL
2799305, at *2 (quoting Dist. Ct. Doc. 11, Ex. 3, at 7). It is unclear when the letter was
written or when Mr. Weaver received it.
Without identifying the author, much less providing a “trustworthy eyewitness
account” of events, see Schlup, 513 U.S. at 324, the letter is insufficient to demonstrate
that Mr. Weaver is factually innocent of the felony crimes for which he was convicted.
Further, as the district court correctly noted, Mr. Weaver’s 11-year delay in filing his §
2254 application presents the “precise type of ‘unexplained delay in presenting new
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evidence’ that militates against finding that Mr. Weaver has shown his actual innocence.”
Weaver, 2017 WL 2799305, at *2 (quoting McQuiggin, 133 S. Ct. at 1935).
Other evidence Mr. Weaver provided to the district court similarly fails to
warrant application of the actual innocence exception. He presented documentation
of disciplinary action against his trial counsel, which does not address his actual
innocence. He also provided a 2002 medical examination of the victim, which was
presented at trial and thus is not “new” evidence. See McQuiggin, 133 S. Ct. at 1935.
In sum, the evidence Mr. Weaver presented to the district court in support of
his actual innocence is neither new nor reliable. It therefore does not provide a basis
for Mr. Weaver’s claim of actual innocence in his § 2254 application.2
III. CONCLUSION
Mr. Weaver has failed to demonstrate that “jurists of reason would find it
debatable whether the district court was correct in its procedural ruling” that his § 2254
2
Nor can Mr. Weaver avoid AEDPA’s one-year statute of limitations based on
statutory tolling. Under 28 U.S.C. § 2244(d)(2), “[t]he 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.” In other words, a habeas applicant is entitled to statutory tolling of the
deadline while pursuing state post-conviction relief. But Mr. Weaver did not seek
post-conviction relief in state court until May 18, 2015—almost ten years after
AEDPA’s deadline expired on June 29, 2005—and thus statutory tolling does not
save his application. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006);
Collins v. Bear, No. 16-6339, 2017 WL 2683990, at *3 (10th Cir. 2017) (unpublished).
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application is time-barred and not subject to equitable tolling. See Slack, 529 U.S. at 484.
We therefore deny his request for a COA and dismiss this matter.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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