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Cecil R. Lawrence v. E.D. of Okla. Mike Mullin

February 1, 2011

CECIL R. LAWRENCE, PETITIONER-APPELLANT,
v.
E.D. OF OKLA. MIKE MULLIN, WARDEN, RESPONDENT-APPELLEE.



D.C. No. 6:-09-00349-RAW-KEW

The opinion of the court was delivered by: Timothy M. Tymkovich Circuit Judge

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

ORDER DENYING CERTIFICATE OF APPEALABILITY*fn1

Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges.*fn2

Cecil Ray Lawrence, an Oklahoma state prisoner, seeks a certificate of appealability (COA) to enable him to appeal the district court's dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus as time-barred. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we construe Lawrence's filings liberally because he is proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991). Nonetheless, no reasonable jurist could conclude the district court's dismissal was incorrect. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, we DENY the application for a COA and DISMISS the appeal.

I. Background

On July 28, 2005, Lawrence pleaded guilty to two counts relating to the possession of cocaine and phencyclidine with intent to distribute. For these crimes, he was sentenced to a total of 16 years' imprisonment. On May 10, 2006, Lawrence filed his first application for post-conviction relief in the Carter County District Court, alleging ineffective assistance of counsel. The court denied Lawrence's application, and the Oklahoma Court of Criminal Appeals (OCCA) affirmed the denial on December 5, 2006.

On October 15, 2007, Lawrence learned that Kevin McIntire, a drug task force investigator in Carter County, was indicted for stealing evidence in drug cases he had investigated. On March 30, 2009, Lawrence filed a second application for post-conviction relief in the Carter County District Court, contending this newly-discovered evidence provided a sufficient reason to allow him to obtain relief. Once again, the district court denied his application, and the OCCA affirmed the denial on June 22, 2009. He then filed a petition under 28 U.S.C. § 2254 for a writ of habeas corpus on September 17, 2009, which the federal district court dismissed as time-barred.

II. Analysis

The Antiterrorism and Effective Death Penalty Act conditions a petitioner's right to appeal a denial of habeas relief under § 2254 upon a grant of a COA.

28 U.S.C. § 2253(c)(1)(A). A COA requires the applicant to demonstrate a "substantial showing of the denial of a constitutional right." § 2253(c)(2). When the district court denies a habeas petition on procedural grounds, a COA should issue only when the prisoner shows 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, 529 U.S. at 484. Lawrence does not satisfy this standard.

Section 2244(d)(1) establishes a one-year statute of limitations for the filing of a habeas petition. Relevant here are subsections (A), which commences the limitations period on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," and (D), which commences the limitations period on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. §§ 2244(d)(1)(A), (D).

Under Oklahoma law, a conviction pursuant to a guilty plea becomes final 10 days after entry of judgment or sentence, unless the convicted person moves to withdraw the plea within these 10 days. Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (citing Oklahoma rules for direct appeal of a conviction entered under a guilty plea). Thus, the district court correctly determined Lawrence's statutory limitations period expired on August 7, 2006-one year and 10 days after his conviction under a guilty plea. The district court also correctly determined that Lawrence's first post-conviction proceeding extended the limitations deadline by 209 days ...


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