Jordan v. Allbaugh ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
April 27, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ALVIN NATHANIEL JORDAN,
Petitioner - Appellant,
v. No. 16-5016
(D.C. No. 4:15-CV-00409-CVE-TLW)
JOE M. ALLBAUGH, Interim (N.D. Okla.)
Director,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before GORSUCH, BALDOCK, and McHUGH, Circuit Judges.
In 2006, Alvin Jordan pleaded guilty in an Oklahoma court to first-degree
murder and other charges. More than nine years later, Mr. Jordan filed this
federal habeas petition under 28 U.S.C. § 2254. The district court dismissed his
petition as untimely and denied his request for a certificate of appealability
(“COA”). Now before this court, Mr. Jordan renews his request for a COA so
that he might challenge the district court’s dismissal of his petition.
*
This order is not binding precedent except under the doctrines of law of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.
We may issue a COA only if the petitioner makes a “substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). And where, as here,
the district court dismissed a petition as untimely, that means the petitioner must
“show that ‘jurists of reason would find it debatable’ whether his claim was time-
barred.” Garcia v. Archuleta, 253 F. App’x 802, 803 (10th Cir. 2007) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We see no grounds on which reasonable jurists might debate the district
court’s ruling. Mr. Jordan’s federal petition comes well outside the one-year
period permitted by statute. See 28 U.S.C. § 2244(d)(1). Neither does he
question the district court’s determination that none of the grounds for statutory
tolling apply in his case. See id. Instead, he argues only that the district court
should have equitably tolled the limitations period to permit his claim. Mr.
Jordan is correct that the statute of limitations period for habeas petitions is
subject to equitable tolling “in rare and exceptional circumstances.” Gibson v.
Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (quoting Davis v. Johnson, 158 F.3d
806, 811 (5th Cir. 1998)). But such tolling is only appropriate if the petitioner
shows “(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Yang v. Archuleta, 525 F.3d 925,
928 (10th Cir. 2008) (quoting Lawrence v. Florida, 549 U.S. 327, 336 (2007)).
And that much we do not see here. Mr. Jordan suggests his diligence is proven by
a previous collateral motion he brought in 2007, but he doesn’t explain his
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inactivity before or after that motion. When it comes to the extraordinary
circumstance that prevented him from filing a timely petition, Mr. Jordan suggests
he suffers from a mental disability. But he was deemed competent to enter a plea
in 2006, and he does not explain how mental health issues rendered him unable to
file this petition earlier. In these circumstances we cannot say he has borne the
burden he must to win equitable tolling. See, e.g., Moore v. Gibson, 250 F.3d
1295, 1299 (10th Cir. 2001); O’Bryant v. Oklahoma, 568 F. App’x 632, 636 (10th
Cir. 2014); United States v. Williams, 485 F. App’x 978, 979 (10th Cir. 2012).
The request for a COA is denied and the appeal is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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