Carey v. Jones, 10th Cir. (2007)
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United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT
May 21, 2007
Elisabeth A. Shumaker
Clerk of Court
TER RY GEN E C AR EY ,
Petitioner-A ppellant,
No. 07-5032
v.
(N.D. Oklahoma)
JUSTIN JONES, W arden,
(D.C. No. 06-CV -37-P)
Respondent-Appellee.
OR DER
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.
Terry Carey, proceeding pro se, seeks a certificate of appealability
(COA) to appeal the district courts order denying his 28 U.S.C. 2254 petition
for habeas corpus as untimely filed. See 28 U.S.C. 2253(c)(1)(A) (providing
that an appeal may not be taken from the denial of a 2254 habeas petition unless
the petitioner first obtains a COA). M r. Carey also seeks leave to proceed in
forma pauperis (IFP).
In his 2254 petition, M r. Carey contends the prosecutor made false
statements and that he presented perjured testimony in violation of his due
process rights. He also argues that his counsel provided ineffective assistance
when he failed to object to these statements and testimony.
I. BACKGROUND
A jury in the District Court of D elaw are County, Oklahoma convicted M r.
Carey of burglary after former conviction of two or more felonies. M r. Carey
received a sentence of fifty years imprisonment, with fifteen years suspended.
The Oklahoma Court of Criminal Appeals (OCCA) affirmed his conviction on
direct appeal on February 2, 1996. M r. Carey did not seek a w rit of certiorari
from the United States Supreme Court.
On April 9, 2003, M r. Carey filed his first application for post-conviction
relief. According to M r. Carey, the trial court judge vacated the suspended
portion of his sentence. M r. Carey states he filed a second application for postconviction relief on August 18, 2004. The state district court judge denied the
requested relief on September 6, 2005, and the OCCA denied his appeal of this
order on November 22, 2005.
M r. Carey filed his federal petition under 2254 on December 22, 2005, in
the W estern District of Oklahoma. The court transferred the petition to the
Northern District of Oklahoma, where it w as filed on January 19, 2005.
II. DISCUSSION
In order to obtain a COA, M r. Carey must make a substantial showing of
the denial of a constitutional right. 28 U.S.C. 2253(c)(2). In order to do so,
M r. Carey must show that reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues
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presented were adequate to deserve encouragement to proceed further. M iller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (alteration and internal quotation marks
omitted). [A] claim can be debatable even though every jurist of reason might
agree, after the COA has been granted and the case has received full
consideration, that [the] petitioner will not prevail. Id. at 338. 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. In his COA application before us, M r. Carey
devotes little attention to addressing the untimeliness of his petition. Before the
district court, how ever, he argued that he was entitled to equitable tolling. He
asserted that from M arch 3, 1996 until August 30, 2006, he diligently sought to
obtain trial transcripts from the Delaware County Clerks office. The district
court concluded that M r. Carey was not entitled to statutory or equitable tolling.
Here, for substantially the same reasons as those set forth in the district
courts order, we conclude that M r. Carey is not entitled to a COA. First, M r.
Carey is not entitled to statutory tolling. He filed his first post-conviction
application on April 9, 2004, almost six years after 2244(d)(1)s one-year
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limitations period expired. He filed his second application on August 18, 2005,
more than eight years after the expiration of the limitations period. Consequently,
M r. Careys federal habeas petition, which he filed on December 22, 2005, was
untimely filed.
As to equitable tolling, it is only available w hen an inmate diligently
pursues his claims and demonstrates that the failure to timely file was caused by
extraordinary circumstances beyond his control. M arsh v. Soares, 223 F.3d
1217, 1220 (10th Cir. 2000). Reasonable jurists would agree that the district
court was correct when it concluded that an inmates lack of state court records
does not justify equitable tolling. Rec. doc. 17 at 4, and n.1 (see id. at n.1
(collecting cases). Thus, M r. Carey has not shown that he diligently pursued his
claims and his 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 Cir. 2000) (internal quotation marks omitted). Accordingly,
we DENY M r. Careys request for a COA, DENY his motion to proceed IFP, and
DISM ISS the matter.
Entered for the Court,
ELISABETH A. SHUM AKER, Clerk
By:
Deputy Clerk
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