Lemons vs. Franklin, No. 06-5099 (10th Cir. 2006)
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS October 6, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court STEPHEN P. LEM ONS, Petitioner-Appellant, No. 06-5099 v. (D.C. No. 05-CV-391-TCK-FHM ) ER IC FR AN K LIN , Warden; R ON W AR D, Director; ATTO RN EY G EN ER AL O F TH E STA TE O F OKLAHOM A, (N . D. Okla.) Respondents-Appellees. OR DER Before K ELLY, M cK AY, and LUCERO, Circuit Judges. Appellant was convicted of first degree murder on June 21, 1995, by a jury in Oklahoma state court and was sentenced to life in prison without the possibility of parole. His conviction and sentence were sustained by the Oklahoma Court of Criminal Appeals ( OCCA ) on August 23, 1996. Appellant did not pursue any further direct appeals. He did, however, file an application for post-conviction relief in state court on January 3, 2005. The state trial court denied his application on February 17, 2005, and on M ay 3, 2005, the OCCA affirmed the that denial. On July 12, 2005, Appellant filed this 28 U.S.C. § 2254 petition in the Northern District of Oklahoma claiming that his original trial violated several of his constitutional rights. The district court dismissed Appellant s § 2254 petition as untimely and denied him a certificate of appealability ( COA ). Order, 1 (N.D. Okla. Feb. 28, 2006); Order, 3 (N.D. Okla. Apr. 12, 2006). To obtain a COA, Appellant must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To do so, Appellant must demonstrate 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. M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Appellant has not met this burden. The Antiterrorism and Effective Death Penalty Act ( AEDPA ) established a one-year statute of limitations period for § 2254 petitions. See 28 U.S.C. § 2244(d). In Appellant s case, the limitations period began to run on November 21, 1996, ninety days after the O CCA s decision the end of the time period for filing a petition for writ of certiorari with the Supreme Court. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Appellant argues that AEDPA s time limitations do not apply to him because his direct appeal was pending when AEDPA was enacted. However, as the district court noted, because A ppellant initiated his § 2254 petition after AEDPA s enactment, A EDPA s limitations apply to his petition. See Feb. 28 Order at 3-4 (citing Lindh v. M urphy, 521 U.S. 320, 336-37 (1997)). -2- Appellant also argues that his mental state in 1996 entitles him to equitable tolling. Again, we agree with the district court s determination that Appellant s claims are generic and lack specificity sufficient to explain the lengthy delay in pursuing his claims. Id. at 4. Further, A ppellant argues that he was not aware of AEDPA s requirement. This explanation, however, does not toll A EDPA s requirements. Id. at 5 ( [I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing. (quoting M arsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (quotation omitted))). Finally, Appellant makes an argument of actual innocence. A claim of actual innocence, however, does not by itself toll AEDPA s filing requirements, see M iller v. M arr, 141 F.3d 976, 978 (10th Cir. 1998), and we agree with the district court s analysis that Appellant has failed to demonstrate that his inability to file his habeas petition within the one-year period was due to circumstances beyond his control. Feb. 28 Order at 5 (citing Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)). W e have carefully reviewed Appellant s brief, the district court s disposition, and the record on appeal. Nothing in the facts, the record on appeal, or Appellant s filing raises an issue that meets our standard for the grant of a COA. For substantially the same reasons set forth by the district court in its February 28, 2006, order, we cannot say that reasonable jurists could debate -3- whether (or, for that matter, agree that) the petition should have been resolved in a different manner. Slack, 529 U.S. at 484. W e, therefore, DENY Appellant s request for a COA and DISM ISS the appeal. Entered for the Court M onroe G. M cKay Circuit Judge -4-
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