Mayberry v. State of Oklahoma , 155 F. App'x 401 ( 2005 )


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  •                                                                            F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    November 16, 2005
    TENTH CIRCUIT
    Clerk of Court
    RICHARD LIONEL MAYBERRY,
    Petitioner-Appellant,                   No. 05-6053
    v.                                            (W.D. of Okla.)
    RON WARD,                                         (D.C. No. CV-04-1687-F)
    Respondent-Appellee.
    ORDER DENYING CERTIFICATE OF APPEALABILITY                   *
    Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.            **
    Petitioner-Appellant Richard L. Mayberry, a state prisoner appearing pro
    se, filed a petition for writ of habeas corpus in the district court for the Western
    District of Oklahoma pursuant to 
    28 U.S.C. § 2254
    . The district court held the
    petition to be untimely under 
    29 U.S.C. § 2244
    (d), denied a certificate of
    appealability (COA), and dismissed. Because Mayberry has not made a
    *
    This order is not binding precedent, except under the doctrines of law of
    the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders; nevertheless, an order may be cited under the terms and
    conditions of 10th Cir. R. 36.3.
    **
    After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
    substantial showing of a denial of a constitutional right, 
    28 U.S.C. § 2253
    (c)(2),
    we deny a COA and dismiss the appeal.
    I. Background
    The parties are familiar with the facts of this case and we need not restate
    them here. After pleading guilty to robbery with a firearm, assault and battery
    with a dangerous weapon, and possession of a firearm, Mayberry was sentenced
    on March 14, 1994, to 50 years imprisonment. He filed an application for post-
    conviction relief, but it was denied by a state district court on October 12, 1994.
    Mayberry did not appeal. On September 3, 2003, he filed a second petition for
    post-conviction relief, which was denied by a state district court on November 13,
    2003. The Oklahoma Court of Criminal Appeals declined jurisdiction due to
    Mayberry’s failure to file a timely appeal. Mayberry filed his third petition for
    post-conviction relief on May 3, 2004, and it was again denied by a state district
    court. The Oklahoma Court of Criminal Appeals affirmed the denial on August
    31, 2004.
    Mayberry filed his petition in federal district court on December 13, 2004.
    He claimed that the state violated his due process rights by denying his
    applications for post-conviction relief without a hearing, that his pleas were not
    knowingly made, and that his trial counsel was ineffective, resulting in his guilty
    pleas and his untimely motion to withdraw his guilty pleas.
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    II. Legal Issues
    We may grant a COA if Mayberry “has made a substantial showing of the
    denial of a constitutional right.” 
    28 U.S.C. § 2253
    (c)(2) (2000);     see also United
    States v. Springfield , 
    337 F.3d 1175
    , 1177 (10th Cir. 2003). In cases where the
    district court denies a habeas petition on procedural grounds without reaching the
    underlying constitutional claim, a COA should issue if the habeas petitioner
    shows (1) reasonable jurists would find it debatable whether the petition states a
    valid claim of the denial of the constitutional right, and (2) reasonable jurists
    would find it debatable whether the district court was correct in its procedural
    ruling. Slack v. McDaniel , 
    529 U.S. 473
    , 484 (2000).
    Absent a showing of statutory or equitable tolling, state prisoners have a
    one-year period within which to file a habeas corpus petition.      See 
    28 U.S.C. § 2244
    (d)(1)(A) . In cases such as this one, where Mayberry’s conviction became
    final prior to the enactment of AEDPA, the one-year limitations period runs from
    the Act’s effective date, which was April 24, 1996.       Hoggro v. Boone , 
    150 F.3d 1223
    , 1225-1226 (10th Cir. 1998) (citing 
    28 U.S.C. § 2244
    (d)(1)). Thus, absent
    statutory or equitable tolling, Mayberry had one year from that date to file his
    petition in federal district court. The limitations period can be tolled for a
    “properly filed application for state post-conviction or other collateral review.”
    
    28 U.S.C. § 2244
    (d)(2).
    -3-
    Mayberry did not file his federal petition until 2004, many years after the
    limitations period ended in 1997. Furthermore, he is not entitled to statutory or
    equitable tolling. Regarding statutory tolling, Mayberry’s first application for
    post-conviction relief did not toll the limitations period, because it was filed
    before the enactment of AEDPA, i.e., before the one-year period began in 1996.
    Likewise, Mayberry’s second and third applications for relief were not tolling
    events because they were not filed in state court until      after the one-year clock had
    expired in 1997.   See May v. Workman , 
    339 F.3d 1236
    , 1237 (10th Cir. 2003).
    Finally, we agree with the magistrate judge that Mayberry has shown no cause for
    equitable tolling, which is limited to “rare and exceptional circumstances.”
    Gibson v. Klinger , 
    232 F.3d 799
    , 808 (10th Cir. 2000). Mayberry has alleged no
    facts that would allow us to find “circumstances where the limitation period at
    least raises serious constitutional questions and possibly renders the habeas
    remedy inadequate and ineffective.”       Miller v. Marr , 
    141 F.3d 976
    , 978 (10th Cir.
    1998). As the magistrate judge pointed out, Mayberry was not diligent in
    pursuing his federal claims, and “this Circuit has generally declined to apply
    equitable tolling when it is facially clear from the timing of the state and federal
    petitions that the petitioner did not diligently pursue his federal claims.”    Burger
    v. Scott , 
    317 F.3d 1133
    , 1141 (10th Cir. 2003).
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    Accordingly, we DENY a COA and DISMISS the appeal.
    Entered for the Court
    Timothy M. Tymkovich
    Circuit Judge
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