No. 4:16-CV-00309-GKF-FHM) (N.D. Okla.)
BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
L Hartz, Circuit Judge
Phyneus L. Whiteside, an Oklahoma prisoner, filed an
application for relief under 28 U.S.C. § 2254 in the
United States District Court for the Northern District of
Oklahoma. The court denied the application as untimely under
28 U.S.C. § 2244(d)(1)(a), which requires that the
application be filed within one year after the state-court
judgment becomes final. Applicant seeks a certificate of
appealability (COA) from this court to appeal the denial.
See 28 U.S.C. § 2253(c)(1)(A)(requiring a COA
to appeal the denial of a § 2254 application). He also
seeks leave to proceed in forma pauperis (IFP). We
deny his request for a COA and his request to proceed IFP.
September 2013 an Oklahoma court sentenced Applicant to life
plus 125 years in prison on firearm and assault charges. He
appealed to the Oklahoma Court of Criminal Appeals (OCCA),
which affirmed the state trial court on January 8, 2015. His
conviction became final on April 8, 2015, ninety days after
the OCCA decision, because he did not petition the United
States Supreme Court for a writ of certiorari. See
Fleming v. Evans, 481 F.3d 1249, 1257-58 (10th Cir.
2007). The one-year limitations period under § 2244(d)
expired on April 9, 2016; but, as this was a Saturday,
Applicant had until Monday, April 11 to file his § 2254
application. See Harris v. Dinwiddie, 642 F.3d 902,
906 n. 6 (10th Cir. 2011). He did not file, however, until
recognizing that he had missed the deadline, Applicant argued
in his §2254 application that he was entitled to
equitable tolling because regular 23-hour lockdowns and
inadequate access to the law library at the Cimarron
Correctional Facility, where he was incarcerated during much
of 2014-2015, prevented him from timely filing. He did not
allege such difficulties at the Oklahoma State Reformatory,
where he was moved in December 2015.
tolling requires that a petitioner show "(1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing." Holland v. Florida, 560 U.S.
631, 649 (2010) (internal quotation marks omitted). The
district court held that even if regular lockdowns and lack
of access to the law library at Cimarron Correctional
Facility were extraordinary circumstances, Applicant did not
diligently pursue his rights after he departed that facility.
Therefore, the court denied his request for equitable tolling
and dismissed his claim as untimely.
the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying
constitutional claim, a COA should issue when the prisoner
shows, at least, 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). And "[w]here 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." Id.
brief to this court, Applicant does not contest the district
court's ruling that he did not diligently pursue his
rights while at the Oklahoma State Reformatory. Reading his
brief liberally, see Erickson v. Pardus, 551 U.S.
89, 94 (2007) ("A document filed pro se is to
be liberally construed . . . ." (internal quotation
marks omitted)), he appears to argue instead that he should
be granted equitable tolling because he has been impeded from
arguing for his actual innocence as he has not had access to
his trial records to prepare his § 2254 application.
innocence can justify equitable tolling. See Schlup v.
Delo, 513 U.S. 298, 315 (1995). But as we have
To make a credible showing of actual innocence, a petitioner
must support his allegations of constitutional error with new
reliable evidence-whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence-that was not presented at trial. This new
evidence must be sufficient to show that it is more likely
than not that no reasonable juror would have convicted the
petitioner in the light of the new evidence.
Frost v. Pryor, 749 F.3d 1212, 1231-32 (10th Cir.
2014) (citations and internal quotation marks omitted).
Applicant has failed to point to any new evidence of any
kind. Nor has he explained how lack of access to trial
records could prevent him from doing so.
reasonable jurist could dispute that Applicant's §
2254 application was untimely.
DENY Applicant's application for a COA