Martin v. Franklin , 383 F. App'x 780 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
June 22, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JERRY L. MARTIN,
Petitioner - Appellant, No. 09-5178
v. (N.D. Oklahoma)
ERIC FRANKLIN, Warden, (D.C. No. 4:09-CV-00408-GKF-PJC)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
Jerry L. Martin, an Oklahoma state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the denial of his application under
28 U.S.C. § 2254 as untimely. See 28 U.S.C. § 2253(c) (requiring COA to appeal
denial of application). We deny his request for a COA and dismiss the appeal.
I. BACKGROUND
Mr. Martin pleaded guilty to indecent exposure, see Okla. Stat. tit. 21,
§ 1021 (2008), and attempting to solicit a minor child, see id. On June 18, 2007,
he was sentenced to concurrent terms on each count of 15 years’ imprisonment,
with the last five years suspended. He filed repeated unsuccessful applications
for postconviction relief in Oklahoma state district court, but the first was not
filed until August 21, 2008.
On June 25, 2009, Mr. Martin filed a pro se application for relief under
§ 2254 in the United States District Court for the Northern District of Oklahoma.
It asserted (1) that he was actually innocent because he exposed himself to a
computer, not a person; (2) that he was denied effective assistance of counsel; (3)
that his two convictions based on one act violated the prohibition against double
jeopardy; (4) that the indictment was defective because it was not true; (5) that he
is being punished for a crime for which he was not convicted; (6) that he was not
informed that he would be punished on the amended charge; (7) that the search of
his home was illegal; (8) that the prosecutor misused the statutes, because they do
not apply to the internet; (9) that his convictions are based on a legal
impossibility because no one was in his presence; and (10) that the evidence was
insufficient. The state moved to dismiss the application as time-barred. In
response, Mr. Martin argued that the application should not be time-barred
because (1) he is actually innocent, and (2) he is entitled to equitable tolling
because he had recently discovered the relevant law.
The district court granted the state’s motion. It reasoned that his
convictions became final on June 28, 2007, ten days after pronouncement of his
judgment and sentence, because he did not move to withdraw his plea. See Okla.
Ct. Crim. App. R. 4.2(A) (requiring defendant to file application to withdraw
guilty plea within ten days from the date of pronouncement of judgment and
sentence in order to appeal from conviction resulting from guilty plea). Under the
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Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see 28 U.S.C.
§ 2244(d)(1)(A), he therefore had until June 28, 2008, to file his § 2254
application. But his application was not filed until June 25, 2009. Although
state-court postconviction proceedings can toll AEDPA’s one-year limitations
period, the court noted that the earliest of those proceedings was commenced on
August 21, 2008, which was 54 days after expiration of the limitations period. 1
The district court was not persuaded by Mr. Martin’s arguments that his
application was timely. It rejected his actual-innocence claim because he argued
legal innocence rather than factual innocence. And it found no basis for the
contention that he could not have discovered earlier the factual basis for his
§ 2254 application. See id. § 2244(d)(1)(D) (limitations period does not begin
until factual predicate of claim could have been discovered through due
diligence).
In requesting a COA, Mr. Martin asserts (1) that he was denied effective
assistance of trial counsel, and (2) that he was actually innocent because he
exposed himself to a computer, not a person.
II. DISCUSSION
1
We note that the state-court docket sheet indicates that Mr. Martin filed a
“Motion for Judicial Review and Modification of Sentence” on March 7, 2008.
R., Vol. 1 at 25. But even if that motion tolled the limitations period, it was
denied six days later, so any tolling would not affect the result here.
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A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” Id. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(internal quotation marks omitted). In other words, an applicant must show that
the district court’s resolution of the constitutional claim was either “debatable or
wrong.” Id. If the application was denied on procedural grounds, the applicant
faces a double hurdle. Not only must the applicant make a substantial showing of
the denial of a constitutional right, but he must also show “that jurists of reason
would find it debatable . . . whether the district court was correct in its procedural
ruling.” Id. “Where a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not conclude
either that the district court erred in dismissing the petition or that the petitioner
should be allowed to proceed further.” Id.We have examined the opinion of the district court. No reasonable jurist
could debate whether Mr. Martin’s application under § 2254 should have been
resolved in a different manner or that the issues he presented were adequate to
deserve encouragement to proceed further. See id.
III. CONCLUSION
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We DENY the application for a COA and DISMISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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