Hector v. State of Oklahoma ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 13, 2005
TENTH CIRCUIT
Clerk of Court
BOBBY JOE HECTOR, JR.,
Petitioner - Appellant,
v. No. 04-6271
(W.D. Oklahoma)
STATE OF OKLAHOMA, (D.Ct. No. 04-CV-727-C)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before KELLY, O’BRIEN, and TYMKOVICH, 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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Petitioner-Appellant Bobby Joe Hector, Jr., a state inmate appearing pro
se, 1 seeks to appeal from the dismissal of his habeas petition, 28 U.S.C. § 2254.
The district court dismissed the petition as time-barred pursuant to 28 U.S.C. §
1We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
2244(d) and not saved by equitable tolling.
For this court to have jurisdiction over Hector's appeal, a certificate of
appealability (“COA”) must be granted. 28 U.S.C. § 2253(c)(1)(A); Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). A COA may not issue unless “the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). When a denial of COA is based on procedural grounds, the
petitioner must demonstrate “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).
On December 30, 1997, Hector pled guilty to first degree murder in
Oklahoma state court. He was sentenced on February 18, 1998, to life
imprisonment. His conviction became final on February 28, 1998, ten days after
entry of his judgment and sentence, as he did not perfect a direct appeal. See
Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, O KLA . S TAT . A NN .
tit. 22, ch. 18, App. Nor was he granted a direct appeal out of time. Id. at Rule
2.5(A). Accordingly, he had until March 1, 1999, to file his federal habeas
petition. 28 U.S.C. § 2244(d)(1). Hector did not file his federal habeas petition
until June 10, 2004. It is time-barred.
Hector asserts that under Rule 2.1(E) of the Rules of the Oklahoma Court
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of Criminal Appeals (OCCA) and this Court’s opinion in Orange v. Calbone, 318
F.3d 1167, 1171 (10th Cir. 2003), his application for post-conviction relief to the
OCCA constitutes an appeal out of time and should be considered part of the
direct review process under 28 U.S.C. § 2244(d)(1)(A). Therefore, he argues the
pertinent date for the running of the one-year limitation period should be June 12,
2003, when the OCCA denied his post-conviction appeal out of time. This
argument is without merit. Orange involved a direct appeal out of time, not a
post-conviction appeal out of time. Orange, 318 F.3d at 1171-72. The denial of
post-conviction relief in these circumstances is not a part of the direct review
process.
The district court concluded that Hector's application for post-conviction
relief did not serve to toll the limitations period and is not reasonably debatable,
nor has he satisfied the grounds for equitable tolling. We agree. Accordingly, we
DENY Hector's application for a COA and DISMISS the appeal.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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