Smith vs. Workman, No. 06-5156 (10th Cir. 2006)
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F IL E D United States Court of Appeals Tenth Circuit U N IT E D ST A T E S C O U R T O F A PP E A L S October 27, 2006 T E N T H C IR C U IT Elisabeth A. Shumaker Clerk of Court C OD Y SM ITH , Petitioner - A ppellant , No. 06-5156 v. (N.D. Oklahoma ) RANDALL W ORKM AN, W arden, (D.C. No. 05-CV-721-C) Respondents - Appellees. ORDER Before H E N R Y , B R ISC O E , and O B R IE N , Circuit Judges. Cody Smith, an Oklahoma state prisoner proceeding pro se and in forma pauperis, seeks a certificate of appealability ( COA ) to appeal the district court s order denying his 28 U.S.C. § 2254 petition for habeas corpus as untimely filed. In that § 2254 petition, M r. Smith alleged nine contentions: (1) a double jeopardy violation, (2-3) two claims of prosecutorial misconduct, (4-5) two claims of judicial misconduct, (6-7) ineffective assistance of trial and appellate counsel, (8) excessive sentence, and (9) violation of the Oklahoma post-conviction procedures act. M r. Smith also seeks reconsideration of the denial of his motion for appointment of counsel. For substantially the same reasons set forth by the district court in its well-reasoned order, we deny M r. Smith s application for a COA, deny his motion to reconsider the motion for appointment of counsel, and dismiss this matter. I. BACKGROUND M r. Smith was convicted of three counts of sexually abusing a minor child in Tulsa County District Court and sentenced to three consecutive twenty-five year sentences. On August 21, 2003, the Oklahoma Court of Criminal Appeals ( OCCA ) affirmed his conviction. M r. Smith did not seek certiorari review in the United States Supreme Court. On M ay 27, 2004, M r. Smith filed his first application for post-conviction relief , which was denied on October 29, 2004. M r. Smith did not appeal this denial. M r. Smith filed an amended application for post-conviction relief on December 6, 2004. The state district court construed the amended application as a second application and denied relief. M r. Smith attempted to perfect an appeal, but on January 31, 2005, the O CCA dismissed the appeal because M r. Smith s petition was untimely. On July 25, 2005, M r. Smith filed a third application for post-conviction relief, which was denied on September 27, 2005. The OCCA affirmed the district court s denial of post-conviction relief. M r. Smith filed his petition under § 2254 on December 21, 2005. -2- After determining that M r. Smith s conviction became final on November 29, 2003, the district court denied the petition as time-barred under the one-year limitation period established by 28 U.S.C. § 2244(d). Noting that M r. Smith did not present any exceptional circumstances that might warrant equitable tolling, the district court denied M r. Smith a COA and this request followed. II. DISCUSSION A COA can only issue if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). W hen a district court has dismissed a habeas petition on procedural grounds, a certificate w ill only issue when jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. M cDaniel, 529 U.S. 473, 484 (2000). Under 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 pursuant to the judgment of a State court. 28 U.S.C. § 2244(d)(1). In his COA application before us, M r. Smith does not address the untimeliness of his petition, and he -3- does not raise equitable tolling. Instead, M r. Smith focuses on his underlying claims. Based on our review of the record on appeal, the district court s order, and M r. Smith s submissions to this court, we are not persuaded jurists of reason would disagree with the district court s disposition of M r. Smith s § 2254 petition. In other w ords, reasonable jurists would agree with the district court that M r. Smith s petition is barred by the one-year statute of limitations and that this case does not present rare and exceptional circumstances warranting equitable tolling under 28 U.S.C. § 2244(d). Gibson v. Klinger, 232 F.3d 799, 808 (10th C ir. 2000) (internal quotation marks omitted). Accordingly, we DENY M r. Smith s request for a COA, deny his motion to reconsider the denial of the motion for appointment of counsel, and DISM ISS the matter. Entered for the Court, Robert H. Henry Circuit Judge -4-
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