Mitchell v. Sirmons, (10th Cir. 2006)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD EUGENE MITCHELL, JR.,

Petitioner-Appellant,



v.

No. 06-5102

MARTY SIRMONS, Warden;

Respondent-Appellee.

(D.C. No. 05-CV-298-JHP-FHM)

(N. D. Oklahoma)

ORDER DENYING CERTIFICATE OF APPEALABILITY
href="#N_*_" name="txt*">(*)

Before HENRY, BRISCOE, and O'BRIEN,

Circuit Judges.

Donald Eugene Mitchell, Jr., an Oklahoma prisoner appearing pro se, seeks a

certificate of appealability (COA) in order to challenge the district court's denial of his

28 U.S.C. 2254 habeas petition. Because Mitchell has failed to make "a substantial

showing of the denial of a constitutional right," 28 U.S.C. 2253(c)(2), we deny his

request and dismiss the matter.

I.

In early 2002, Mitchell was convicted by a jury in the District Court of Tulsa

County, Oklahoma, of first degree murder and two counts of shooting with intent to kill.

Mitchell was sentenced to life imprisonment with the possibility of parole for the murder

conviction, and fifteen years' imprisonment for each of the other two convictions.

Mitchell filed a direct appeal and, on June 2, 2003, the Oklahoma Court of Criminal

Appeals (OCCA) affirmed his convictions. Mitchell did not file a petition for writ of

certiorari with the United States Supreme Court, nor did he thereafter seek post-conviction relief

in the Oklahoma courts.

On May 31, 2005, Mitchell filed a federal habeas petition alleging seven claims

for relief. Respondent moved to dismiss Mitchell's petition on statute of limitations

grounds. On March 23, 2006, the district court granted respondent's motion and

dismissed Mitchell's petition. Although Mitchell filed a motion to alter or amend

judgment, the district court denied that motion. The district court also denied Mitchell's

request for a COA.

II.

The denial of a state prisoner's petition for federal habeas relief pursuant to 28 U.S.C. 2254 may be appealed only if the district court or this court first issues a COA.

28 U.S.C. 2253(c)(1)(A). "A certificate of appealability may issue . . . only if the

applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). Because the district court denied Mitchell's petition on procedural

grounds, we may issue a COA if he demonstrates 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. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

We conclude Mitchell has failed to demonstrate his right to a COA. As the

district court correctly noted in its order of dismissal, "[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). Mitchell's convictions were

affirmed by the OCCA on direct appeal on June 2, 2003, and his convictions thereafter

became final for federal habeas purposes on September 2, 2003.
name="txt1a">(1) Thus, Mitchell had

one-year, or until September 2, 2004, in which to file a federal habeas petition

challenging his state convictions. As indicated, however, Mitchell did not file his

petition until May 31, 2005, approximately nine months after the one-year limitations

period had expired. Although Mitchell contends he is entitled to equitable tolling of the

one-year limitations period because his appellate counsel allegedly never informed him

of the OCCA's decision, his own pleadings indicate that he became aware of the

OCCA's decision, through his mother, in June of 2004. Thus, he is not entitled to

equitable tolling. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)

(noting

that equitable tolling may be applied "when an inmate diligently pursues his claims and

demonstrates that the failure to timely file was caused by extraordinary circumstances

beyond his control.").

The request for a COA is DENIED and the matter is DISMISSED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order is not binding precedent, except

under the doctrines of law of the

case, res judicata, and collateral estoppel.

1. Under Supreme Court Rule 13.1, Mitchell

had ninety days following the

OCCA's decision in which to file a petition for a writ of certiorari with the United States

Supreme Court.

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