Macklin v. Dowling

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 24, 2020
Christopher M. Wolpert
TENTH CIRCUIT
Clerk of Court
KEVIN THOMAS MACKLIN,
Petitioner - Appellant,
v. No. 19-6153
(D.C. No. 5:19-CV-00375-C)
JANET DOWLING, Warden, (W.D. Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HOLMES, MURPHY, and CARSON, Circuit Judges.
Pro se Petitioner-Appellant Kevin Thomas Macklin, 1 an Oklahoma state
prisoner, seeks a certificate of appealability (“COA”) to challenge the district
court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. The district court held that the petition was untimely under 28 U.S.C.
*
This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.
1
Because Mr. Macklin is proceeding pro se, we construe his filings
liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); accord Garza
v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but “we will not ‘assume the
role of advocate,’” United States v. Parker, 720 F.3d 781, 784 n.1 (10th Cir.
2013) (quoting Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008)).
§ 2244(d)(1) and consequently denied him a COA. Because Mr. Macklin has not
shown that “jurists of reason would find it datable whether the district court was
correct in its procedural ruling,” Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir.
2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), we exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and deny Mr. Macklin’s application for
a COA, deny his motion to proceed IFP, and dismiss this matter.
I
Following a jury trial, Mr. Macklin was convicted of conspiracy to commit
a felony and murder in the first degree for shooting and killing a man during a
carjacking. Mr. Macklin did not appeal, but he did seek state post-conviction
relief, which was denied. He then filed the § 2254 petition at issue here. In his
petition, Mr. Macklin raised two claims: (1) trial counsel was constitutionally
deficient for failing to file a notice of appeal, and (2) Oklahoma’s post-conviction
procedures are constitutionally inadequate.
The respondent filed a motion to dismiss the petition as untimely. In his
objection to the motion, Mr. Macklin did not contest that his habeas petition was
filed several years after the expiration of the one-year limitations period
prescribed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See 28 U.S.C.§ 2244(d)(1) (“A 1-year period of limitation shall
apply to an application for a writ of habeas corpus by a person in custody
2
pursuant to the judgment of a State court.”). Instead, he argued that he qualified
for the actual-innocence exception to the statute of limitations. See McQuiggin v.
Perkins, 569 U.S. 383, 386 (2013) (“[A]ctual innocence, if proved, serves as a
gateway through which a petitioner may pass” to overcome the “expiration of
[AEDPA’s one-year] statute of limitations.”). In support of his claim of actual
innocence, Mr. Macklin relied on an email supposedly written by Tynesha Parks,
his girlfriend at the time of the carjacking, and two notarized affidavits from a co-
defendant named Vernon King. In the email, Ms. Parks claimed that Mr. Macklin
was with her the entire day of the crime and therefore could not have been the
shooter. In his affidavits, Mr. King recanted his prior testimony that Mr. Macklin
was the shooter.
On referral, the magistrate judge issued a report and recommendation
(“R&R”). In the R&R, the magistrate judge rejected Mr. Macklin’s claim of
actual innocence and recommended dismissal of the petition as untimely. The
magistrate judge refused to consider Ms. Parks’s email on the ground that it was
not new evidence. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (“To be
credible, . . . a claim [of actual innocence] requires petitioner to support his
allegations of constitutional error with new reliable evidence . . . that was not
presented at trial.” (emphasis added)). As for Mr. King’s affidavits, the
magistrate judge found that they were insufficient to support a claim of actual
3
innocence. Even “[p]resuming Mr. King” would testify consistently with the
affidavits at a new trial, the magistrate judge explained, “the jury would still hear
consistent evidence from several other witnesses indicating [Mr. Macklin] was
indeed involved in the robbery and that he shot and killed [the victim].” R. at 570
(R&R, filed Aug. 30, 2019). Thus, the magistrate concluded, Mr. Macklin had
not met his burden of demonstrating that, more likely than not, no reasonable
juror would find him guilty beyond a reasonable doubt. See House v. Bell, 547
U.S. 518, 518–19 (2006) (holding that, in order to pass through the
actual-innocence gateway, a petitioner must “demonstrate that more likely than
not, in light of the new evidence, no reasonable juror would find him guilty
beyond a reasonable doubt.”). Consequently, the magistrate judge found that Mr.
Macklin did not qualify for the actual-innocence exception and recommended that
the district dismiss his petition as untimely.
Mr. Macklin objected to the R&R, arguing that he had indeed established
that, in light of the new evidence, “a jury would have rendered a verdict of NOT
GUILTY.” R. at 577 (Opp’n to R&R, filed Sept. 19, 2019). Thus, Mr. Macklin
argued, he qualified for the actual-innocence exception to AEDPA’s one-year
limitations period and his petition was not time-barred. In spite of Mr. Macklin’s
objection, the district court adopted the R&R in its entirety and dismissed the
petition as untimely. Mr. Macklin appealed to this court.
4
II
A
“A COA is a jurisdictional pre-requisite to our review” on the merits of the
dismissal of a § 2254 petition. Clark, 468 F.3d at 713 (quoting Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003)). We may only issue a COA if Mr. Macklin
makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). “To make this showing, he must establish that ‘reasonable jurists
could debate whether . . . the petition should have been resolved [by the district
court] in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.’” Clark, 468 F.3d at 713 (alteration in
original) (quoting Slack, 529 U.S. at 484).
“Insofar as the district court dismissed [Mr. Macklin’s] habeas petition on
procedural grounds, [Mr. Macklin] must demonstrate both that ‘jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.’” Id. (quoting Slack, 529 U.S.
at 484). “Rather than addressing these two threshold requirements in order, we
may ‘resolve the issue whose answer is more apparent from the record and
arguments.’” Frost v. Pryor, 749 F.3d 1212, 1230–31 (10th Cir. 2014) (quoting
Slack, 529 U.S. at 485). “Where a plain procedural bar is present and the district
5
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.” Clark, 468 F.3d at 713–14
(quoting Slack, 529 U.S. at 484). In assessing Mr. Macklin’s claims, “[w]e
review the district court’s factual findings for clear error and its legal conclusions
de novo.” Id. (quoting English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001)).
B
Mr. Macklin argues that the district court erred when it held that his
petition was untimely. Aplt.’s Combined Opening Br. and Appl. for a COA at 1.
In particular, he argues (1) that he presented sufficient evidence of actual
innocence to overcome AEDPA’s one-year statute of limitations, and (2) that “the
lower courts” abused their discretion by rejecting this evidence without holding
evidentiary hearings. Id. We reject both arguments. We conclude that
reasonable jurists could not debate the correctness of the district court’s
determination that Mr. Macklin’s actual-innocence showing was not adequate to
surmount AEDPA’s limitations bar. Consequently, there can be no debate among
reasonable jurists that Mr. Macklin’s habeas petition is untimely.
Both of Mr. Macklin’s arguments fail on waiver grounds. The first
argument is waived for lack of development. Mr. Macklin does not even attempt
to explain why the district court was wrong to hold that he did not meet his
6
burden of showing that “more likely than not, . . . no reasonable juror would find
him guilty beyond a reasonable doubt.” House, 547 U.S. at 538. In particular, he
fails to address the district court’s observation that “[even] [p]resuming Mr.
King” would testify at trial that Mr. Macklin was not the shooter, “the jury would
still hear consistent evidence from several other witnesses” indicating that Mr.
Macklin was the shooter. 2 Rawle at 570. Thus, Mr. Macklin has waived any
argument that the district court was wrong to conclude that he did not qualify for
the actual-innocence exception to AEDPA’s one-year statute of limitations. See
Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first
task of an appellant is to explain to us why the district court’s decision was
wrong.”); see also Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841
(10th Cir. 2005) (holding that pro se litigant had waived arguments that consisted
of “mere conclusory allegations with no citations to the record or any legal
authority for support”).
Because Mr. Macklin has waived any argument that he qualifies for the
actual-innocence exception, he has failed to show “that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling”
that his petition is time-barred. Clark, 468 F.3d at 713 (quoting Slack, 529 U.S.
at 484). Thus, we may deny Mr. Macklin’s request for a COA without
2
This observation was originally made in the magistrate judge’s R&R,
which was adopted in its entirety by the district court.
7
determining whether he has satisfied his substantive, constitutional showing. See
Frost, 749 F.3d at 1230-31 (explaining that “[w]hen a district court dismisses a
petition on procedural grounds,” the court may deny a COA based on a
petitioner’s failure to satisfy either of two requirements: (1) to show “that jurists
of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right,” or (2) to show “that jurists of reason would find
it debatable whether the district court was correct in its procedural ruling”
(emphasis added) (quoting Slack, 529 U.S. at 484)); see also Slack, 529 U.S. at
484 (“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.”).
Furthermore, as for the second argument, insofar as Mr. Macklin contends
that he was precluded from making an adequate showing of actual innocence
because the district court abused its discretion in denying him an evidentiary
hearing, Mr. Macklin waived this argument by not addressing it with sufficient
specificity in his objection to the magistrate judge’s R&R. 3 “This court has
3
Even if this argument were not waived, we would be hard pressed to
conclude that the district court abused its discretion by denying Mr. Macklin an
evidentiary hearing, given that he had identified the facts that he believed
supported his actual-innocence claim and reasonable jurists could not debate the
district court’s determination that those facts were inadequate. See Johnson v.
(continued...)
8
adopted a firm waiver rule under which a party who fails to make a timely
objection to the magistrate judge’s findings and recommendations waives
appellate review of both factual and legal questions.” Morales-Fernandez v. INS,
418 F.3d 1116, 1119 (10th Cir. 2005); see also Black v. Ezell, 497 F. App’x 780,
782 (10th Cir. 2012) (unpublished) (holding that § 2254 petitioner waived his
argument that the district court abused its discretion by failing to hold an
evidentiary hearing because he did not raise the issue in his objection to the
magistrate’s R&R).
Though Mr. Macklin’s objection to the magistrate judge’s R&R did
mention the general need for an evidentiary hearing, his skeletal discussion of this
matter—even construed liberally—was not specific enough to alert the district
court to an objection based on the magistrate judge’s failure to conduct such a
hearing. Therefore, the firm-waiver rule is applicable. See, e.g., United States v.
2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (“[W]e hold that a party’s
objections to the magistrate judge’s report and recommendation must be both
3
(...continued)
Medina, 547 F. App’x 880, 885–86 (10th Cir. 2013) (unpublished) (“[G]iven that
Mr. Johnson has presented the evidence he believes shows his actual innocence,
we cannot say that the district court abused its discretion in denying an
evidentiary hearing.”); see also R ULE 4, R ULES G OVERNING S ECTION 2254 C ASES
IN THE U.S. D IST . C TS . (“If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition . . . .”). Consequently, reasonable jurists would have no
reason to pause in concluding that the correctness of the district court’s
limitations ruling was not worthy of debate.
9
timely and specific to preserve an issue for de novo review by the district court or
for appellate review.”); Thompson v. Sirmons, 336 F. App’x 834, 836 (10th Cir.
2009) (unpublished) (“When a plaintiff does not make specific objections to the
magistrate judge’s report, he is considered to have waived those objections.”)
Moreover, neither of the exceptions to the firm waiver rule applies here because
(1) Mr. Macklin was “informed of the time period for objecting and the
consequences of failing to object,” and (2) “the ‘interests of justice’” do not
“require review.” Morales-Fernandez, 418 F.3d at 1119.
Therefore, because it is waived and we do not consider it further, Mr.
Macklin’s argument concerning an evidentiary hearing does not give us any basis
to question whether reasonable jurists would debate the correctness of the district
court’s ruling that he failed to make an adequate showing of actual innocence to
overcome AEDPA’s limitations bar.
III
Because Mr. Macklin has waived any arguments that the district court erred
by concluding that he did not qualify for the actual-innocence exception to
AEDPA’s one-year statute of limitations, Mr. Macklin has failed to meet his
burden of showing “that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack, 529 U.S. at 478.
Consequently, we DENY his request for a COA, DENY IFP status, and DISMISS
10
this matter.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
11