Diaz v. Harpe

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 4, 2024
• Docket: 23-5105
• Status: Unpublished

Opinion

Appellate Case: 23-5105 Document: 010110978299 Date Filed: 01/04/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 4, 2024 _________________________________ Christopher M. Wolpert Clerk of Court JOSE MANUEL DIAZ,

Petitioner - Appellant,

v. No. 23-5105 (D.C. No. 4:22-CV-00457-TCK-SH) STEVEN HARPE, (N.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________

This matter is before the court on Jose Manuel Diaz’s pro se request for a

certificate of appealability (“COA”). Diaz seeks a COA so he can appeal the

district court’s dismissal, on timeliness grounds, of his 28 U.S.C. § 2254 habeas

petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a

final order denying habeas corpus relief unless the petitioner first obtains a

COA); id. § 2244(d) (setting out a one-year statute of limitations as to habeas

corpus petitions). Because Diaz has not “made a substantial showing of the denial

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-5105 Document: 010110978299 Date Filed: 01/04/2024 Page: 2

of a constitutional right,” id. § 2253(c)(2), this court denies his request for a

COA and dismisses this appeal.

In his § 2254 habeas petition, Diaz seeks to challenge his 2018 Oklahoma

state conviction for assault and battery with a deadly weapon.1 Relying on the

Supreme Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), Diaz

challenges the validity of his convictions. The district court dismissed Diaz’s

petition as untimely, 28 U.S.C. § 2244(d)(1), concluding Diaz was not entitled to

either statutory or equitable tolling.

Diaz seeks a COA so he can appeal the district court’s dismissal of his

§ 2254 petition. To be entitled to a COA, he must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is, he must

demonstrate “reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

1 On January 11, 2018, an Oklahoma state jury convicted Diaz of violating Okla. Stat. tit. 21, § 652(C) (2011). Diaz was sentenced to thirty years’ imprisonment. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the conviction and sentence in an unpublished opinion on August 29, 2019. Diaz sought post-conviction relief in state court via a June 15, 2021, application for post-conviction relief. He argued Oklahoma lacked “jurisdiction” over his crime. The state trial court denied relief on July 21, 2021. Diaz filed an untimely appeal from this order; the OCCA issued an order declining jurisdiction on October 18, 2021. Nearly three months later, Diaz sought a recommendation for an out-of- time appeal. The state trial court concluded a late appeal was unwarranted. The OCCA issued an order denying Diaz’s request on August 1, 2022.

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Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). Diaz has

not made the requisite showing.

As this court’s recent decisions make clear, McGirt’s focus on a question

of federal-versus-state jurisdiction does not alter the conclusion that the one-year

limitations period set out in § 2244(d)(1)(A), rather than the ones set out in

§ 2244(D)(1)(C) and/or (D), applies to McGirt-based challenges to the validity of

state convictions. Warnick v. Harpe, No. 22-5042, 2022 WL 16646708, at *2-3

(10th Cir. Nov. 3, 2022); Owens v. Whitten, No. 22-5106, 2022 WL 17972141, at

*1 (10th Cir. Dec. 28, 2022) 2 ; Pacheco v. El Habti, 62 F.4th 1233, 1240-41 (10th

Cir. 2023). Furthermore, Diaz conceded in the district court that he is not entitled

to statutory tolling pursuant to § 2244(d)(2). Thus, pursuant to § 2244(d)(1)(A),

the limitations period ran unabated from November 28, 2019, 3 until it expired one

year later, on November 30, 2020. Thus, the district court’s conclusion that

Diaz’s instant § 2254 petition, filed on October 14, 2022, is untimely is not

reasonably debatable.

In addition, no reasonable jurist could conclude the district court acted

outside the bounds of its substantial discretion in ruling that Diaz’s lack of

2 This court recognizes that Warnick and Owens are unpublished and, thus, not binding precedent. Nevertheless, the analyses set out therein are completely persuasive and this panel adopts them in their entirety. See Tenth Cir. R. 32.1. 3 On this date, the ninety-day period for seeking a writ of certiorari from the United States Supreme Court expired. See Locke v. Saffle, 237 F.3d 1269, 1272 (10th Cir. 2001).

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diligence, together with his inability to demonstrate the existence of exceptional

circumstances, foreclosed his claimed entitlement to equitable tolling. Holland v.

Florida, 560 U.S. 631, 645 (2010) (noting equitable tolling is available in rare

circumstances, but concluding a petitioner must demonstrate reasonable diligence

to be entitled to its benefits); Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir

2003) (holding that this court reviews a district court decision on equitable tolling

for abuse of discretion). Nor could a reasonable judge debate the district court’s

conclusion that Diaz’s merits-based jurisdictional arguments do not implicate

“actual innocence.” Pacheco, 62 F.4th at 1241-46 (explaining at length why

arguments about a lack of state court jurisdiction do not implicate the actual-

innocence doctrine).

Diaz’s request for a COA is DENIED and this appeal is DISMISSED.

Entered for the Court

Michael R. Murphy Circuit Judge