Parnell v. Oklahoma State of ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 25, 2005
TENTH CIRCUIT
Clerk of Court
LARRY JOE PARNELL, JR.,
Petitioner - Appellant,
No. 05-6083
v. (D.C. No. CIV-04-1453-F)
(W.D. Okla.)
STATE OF OKLAHOMA; COUNTY
OF OKLAHOMA; RON WARD,
Respondents - Appellees.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
Larry Joe Parnell, Jr., an inmate appearing pro se, seeks a certificate of
appealability (“COA”) to appeal from the district court’s denial of his habeas
petition filed pursuant to 28 U.S.C. § 2254. On appeal, Mr. Parnell claims that he
received constitutionally defective trial and appellate counsel and was denied due
process and equal protection in state post-conviction proceedings thereby
warranting consideration of his federal claims. He contends that the district court
wrongly dismissed his petition as untimely. Because Mr. Parnell has not made a
“substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), we deny a COA
and dismiss the appeal.
Mr. Parnell was convicted, after a jury trial, of trafficking in illegal drugs
(Count I), possession of a firearm during the commission of a felony (Count II),
and two counts of possession of drug paraphernalia (Counts III and V). He was
sentenced to serve fourteen years on Count I, two years on count II, and one year
each on Counts III and V. Counts I and II ran consecutively, with the sentences
on Counts III and V running concurrently with each other and with the sentence
imposed for Count I. Fines were also imposed. On April 25, 2002, the Oklahoma
Court of Criminal Appeals (“OCCA”) affirmed the judgment and sentence. R.
Doc. 7, Ex. 3. On January 22, 2004, Mr. Parnell sought post-conviction relief in
state district court. The district court’s denial of post-conviction relief was
affirmed by the OCCA on June 17, 2004. R. Docs. 5 & 7.
Mr. Parnell filed his federal habeas petition on October 28, 2004. The
magistrate judge recommended that the petition be dismissed as time barred
pursuant to the one-year limitation period in 28 U.S.C. § 2244(d)(1). Mr.
Parnell’s conviction became final on July 25, 2002 (90 days after the judgment in
his direct criminal appeal), and the one-year limitation period expired on July 25,
2003. See Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002). State post-
conviction proceedings did not toll the one-year period because they commenced
after the limitation period expired. 28 U.S.C. § 2244(d)(2); Fisher v. Gibson, 262
2
F.3d 1135, 1142-43 (10th Cir. 2001). The magistrate judge also rejected
equitable tolling. Mr. Parnell objected to the report and recommendation, which
the district court adopted, dismissing the petition as time-barred.
Where the district dismisses a petition on procedural grounds, a COA
requires the inmate to demonstrate that it is reasonably debatable whether (1) the
petition states a valid claim of the denial of a constitutional right, and (2) the
district court’s procedural ruling is correct. Slack, 529 U.S. at 484; see also
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A petitioner’s failure to know
about the one-year limitation period does not constitute the rare and exceptional
circumstances where equitable tolling might be appropriate. See Burger v. Scott,
317 F.3d 1133, 1141-44 (10th Cir. 2003). The district court’s procedural ruling is
not reasonably debatable.
We DENY Mr. Parnell’s application for a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
3