Hollan v. Crow

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 1, 2022
• Docket: 22-5077
• Status: Unpublished

Opinion

Appellate Case: 22-5077 Document: 010110776253 Date Filed: 12/01/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 1, 2022 _________________________________ Christopher M. Wolpert Clerk of Court MARION DALE HOLLAN,

Petitioner - Appellant,

v. No. 22-5077 (D.C. No. 4:22-CV-00313-CVE-JFJ) SCOTT CROW, (N.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before PHILLIPS, MURPHY, and EID, Circuit Judges. _________________________________

This matter is before the court on Marion Dale Hollan’s pro se requests for a

certificate of appealability (“COA”) and to proceed on appeal in forma pauperis. Hollan

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 a habeas

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

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

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-5077 Document: 010110776253 Date Filed: 12/01/2022 Page: 2

dismisses this appeal. Likewise, because Hollan has not demonstrated the “existence of a

reasoned, nonfrivolous argument on the law and facts,” Lister v. Dep’t of Treasury, 408

F.3d 1309, 1312 (10th Cir. 2005), we deny his request to proceed on appeal in forma

pauperis.1

In his § 2254 habeas petition, Hollan seeks to challenge his forty-year-old

Oklahoma state convictions for murder and shooting with intent to kill. See Hollan v.

State, 676 P.2d 861, 863 (Okla. Crim. App. 1984). Relying on the Supreme Court’s

recent decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), Hollan raises a variety of

assertions as to the validity of his convictions. The district court dismissed Hollan’s

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

statutory or equitable tolling.

Hollan seeks a COA so he can appeal the district court’s dismissal of his § 2254

petition. To be entitled to a COA, Hollan 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.” Slack v. McDaniel, 120 S. Ct.

1595, 1603–04 (2000) (quotations omitted). For those reasons set out in Warnick v.

1 Given this court’s denial of Hollan’s request to proceed on appeal in forma pauperis, he is reminded of his obligation to immediately remit the full filing fee. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).

2 Appellate Case: 22-5077 Document: 010110776253 Date Filed: 12/01/2022 Page: 3

Harpe, No. 22-5042, 2022 WL 16646708, at *2-3 (10th Cir. Nov. 3, 2022),2 and Pacheco

v. El Habti, 48 F.4th 1179, 1191 (10th Cir. 2022), Hollan cannot satisfy that showing.

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

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

2 This court recognizes Warnick is unpublished and, thus, not binding precedent. Nevertheless, the analysis set out therein is completely persuasive and this panel adopts it in its entirety. See Tenth Cir. R. 32.1.