Toon v. Dinwiddie

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 29, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES D. TOON,
Petitioner - Appellant,
No. 05-7017
v. (D.C. No. CIV-04–027-WH)
(E.D. Okla.)
WALTER DINWIDDIE, Warden, Jess
Dunn Correctional Center,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
Petitioner-Appellant James D. Toon, an Oklahoma inmate appearing pro se,
seeks a certificate of appealability (“COA”) permitting him to appeal the district
court’s order dismissing his petition for a writ of habeas corpus as barred by the
one-year statute of limitations in 28 U.S.C. § 2244(d)(1). Because we find that
the district court’s procedural determination is not fairly debatable, we deny a
COA and dismiss this appeal.
The parties are familiar with the facts, and we need not repeat them here.
Because the district court’s dismissal was based upon procedural grounds, Mr.
Toon must demonstrate that reasonable jurists would find it debatable whether the
district court’s procedural ruling was correct, and whether his habeas petition
makes a “substantial showing of the denial of a constitutional right.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). After carefully reviewing the record, it is
clear that Mr. Toon cannot meet this burden. Mr. Toon seeks to challenge the
method of good time credit computation currently assessed against his sentence.
However, the record establishes that Mr. Toon became aware of the factual
predicate underlying his claim on August 20, 1999, yet failed to seek redress in
the Oklahoma system until August 29, 2000. Mr. Tool has failed to allege or
demonstrate cause for delay, and his subsequent attempts to obtain post-
conviction relief before the state courts cannot serve to toll an already expired
statute of limitations. See May v. Workman, 339 F.3d 1236, 1237 (10th Cir.
2003). Accordingly, the district court’s determination that Mr. Toon’s petition
was barred by the one-year statute of limitations in 28 U.S.C. § 2244(d)(1)(D) is
not fairly debatable.
We DENY the request for COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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