Owens v. Whitten

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 28, 2022
• Docket: 22-5106
• Status: Unpublished

Opinion

Appellate Case: 22-5106 Document: 010110789911 Date Filed: 12/28/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 28, 2022 _________________________________ Christopher M. Wolpert Clerk of Court MARTY ALLEN OWENS,

Petitioner - Appellant,

v. No. 22-5106 (D.C. No. 4:22-CV-00192-GKF-CDL) RICK WHITTEN, (N.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

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

This matter is before the court on Marty Allen Owens’s pro se request for a

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

court’s dismissal, on timeliness grounds, of his 28 U.S.C. § 2254 habeas petition.1 See

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 The district court concluded it lacked statutory jurisdiction over a narrow aspect of Owens’s habeas petition because he was no longer “in custody” on that conviction: his challenge to the validity of his misdemeanor DUI conviction. See 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (holding that to proceed under § 2254 a state prisoner must be “in custody” under the conviction or sentence under attack when the petitioner files the habeas petition). Owens does not challenge this determination and this court does not address the matter. Appellate Case: 22-5106 Document: 010110789911 Date Filed: 12/28/2022 Page: 2

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 Owens 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

dismisses this appeal.

In his § 2254 habeas petition, Owens seeks to challenge his decade-old

Oklahoma state convictions for pointing a firearm, assault with intent to kill, and

first-degree burglary. Relying on the Supreme Court’s recent decision in McGirt

v. Oklahoma, 140 S. Ct. 2452 (2020), Owens raises a variety of assertions as to

the validity of his convictions. The district court dismissed Owens’s petition as

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

statutory or equitable tolling.

Owens 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.” Id.

(quotations omitted). Owens 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

2 Appellate Case: 22-5106 Document: 010110789911 Date Filed: 12/28/2022 Page: 3

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) 2 ; Pacheco v. El Habti, 48 F.4th 1179, 1191 (10th Cir.

2022). Furthermore, it cannot be reasonably argued that the district court erred in

concluding Owens is not entitled to statutory tolling pursuant to § 2244(d)(2). As

the district court correctly noted, the limitations period ran unabated from

October 14, 2014, until it expired one year later, on October 14, 2015. Finally,

no reasonable jurist would conclude the district court acted outside the bounds of

its substantial discretion in concluding Owens’s lack of diligence 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).

Owens’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 that 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.