FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT April 5, 2018
Elisabeth A. Shumaker Clerk of Court MITCHELL E. THOMAS,
Petitioner - Appellant, No. 17-5120 v. (D.C. No. 4:16-CV-00763-GKF-JFJ) (N.D. Oklahoma) JASON BRYANT,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
Petitioner Mitchell Thomas, an Oklahoma state prisoner proceeding pro se,1
seeks a certificate of appealability (“COA”) to challenge the district court’s dismissal
of his habeas petition brought under 28 U.S.C. § 2254. The district court dismissed
Mr. Thomas’s petition as untimely under 28 U.S.C. § 2244(d)’s one-year limitations
period. We deny Mr. Thomas’s COA request and dismiss the petition.
* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule Appellate Procedure 32.1 and 10th Circuit Rule 32.1. 1 Because Mr. Thomas is pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). I. BACKGROUND
Mr. Thomas pleaded guilty to one count of sexual abuse of a minor child in
Oklahoma state court. On April 2, 2015, he was sentenced to thirty years in prison, with
the last five years suspended. He did not seek withdrawal of his plea within ten days of
sentencing, nor did he seek direct review of the conviction or sentence with the
Oklahoma Court of Criminal Appeals (“OCCA”). On March 16, 2016, almost one year
after his conviction, Mr. Thomas filed a petition for state post-conviction relief, asserting
fourteen propositions of error to support his petition, including a request for certiorari
appeal out of time. The state district court denied his petition, dismissing some of the
propositions on procedural grounds and some on the merits. It also denied his request to
file an appeal out of time because he failed to show that he was denied a direct appeal
through no fault of his own. He appealed and on November 30, 2016, the OCCA
affirmed, again denying his petitions for post-conviction relief and for certiorari appeal
out of time.
Next, Mr. Thomas filed a notice of intent to appeal the state court order in the
United States District Court for the Northern District of Oklahoma on December 12,
2016. The court noted that the “notice of appeal” was not a petition for habeas relief
and, on December 30, 2016, mailed Mr. Thomas a blank habeas corpus petition.
Mr. Thomas filed the federal habeas petition under 28 U.S.C. § 2254 on January 17,
2017. On October 24, 2017, the district court dismissed his habeas petition, finding it
untimely under 28 U.S.C. § 2244(d)(1)(A) and holding that Mr. Thomas had failed to
demonstrate he was entitled to equitable tolling of the Antiterrorism and Effective
2 Death Penalty Act (“AEDPA”) one-year limitations period or that he was excused
from that limitations period under the actual innocence exception.
Mr. Thomas subsequently filed a notice of appeal from the district court’s
order dismissing his habeas petition and denying him a COA. He alleges he filed his
appeal and mailed it through his correctional institution’s facility on November 17,
2017. The notice of appeal, however, was not docketed with the district court until
November 30, 2017.
II. ANALYSIS
AEDPA conditions a state prisoner’s right to appeal a denial of habeas relief on
the grant of a COA, which is unavailable unless the applicant demonstrates a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(A), (c)(2).
Where, as here, the district court denies a habeas petition on procedural grounds, we issue
a COA only when the prisoner shows 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, 478 (2000). Mr. Thomas cannot
make this showing, and we therefore deny his request.
A. The Timing of Mr. Thomas’s Petition for COA
Prior to reviewing the merits of Mr. Thomas’s petition for a COA, we must
determine whether it was timely. According to the Federal Rules of Appellate
Procedure, Mr. Thomas was required to file his appeal seeking a COA within thirty
days of the entry of judgment—in this case on or before November 24, 2017, because
3 November 23 was a federal holiday. See Fed. R. App. P. 4(a)(1)(A), 26(a)(1)(C). The
district court filed Mr. Thomas’s notice of appeal on November 30, 2017.2 Because
Mr. Thomas is currently incarcerated, his notice is timely if it was deposited within
his correctional institution’s internal mail system on or before the last day for filing
and is accompanied by: 1) “a declaration in compliance with 28 U.S.C. § 1746—or a
notarized statement—setting out the date of deposit and stating that first-class
postage is being prepaid;” or 2) “evidence (such as a postmark or date stamp)
showing that the notice was so deposited and that postage was prepaid.” See Id.
4(c)(1)(A)(i), (ii).
Mr. Thomas’s certificate of service is dated November 17, 2017—before the
filing deadline—but does not state that first-class postage has been prepaid. The
postmark on the envelope is November 28, 2017—after the deadline. But the
envelope has affixed to it a valid postage stamp, indicating the postage was, in fact,
prepaid. Although Mr. Thomas’s declaration complied only partially with the rule by
stating the date of deposit, but not that the postage was prepaid, we construe the
certificate of service combined with the postage stamp as evidence that the appeal
2 Although Mr. Thomas was required to petition for a COA before his appeal from the merits of the district court’s decision could be considered, “a notice of appeal constitutes a request for a certificate of appealability,” 10th Cir. R. 22.1(A), and he supplemented his appeal with a combined opening brief and an application for a COA upon prompting from the Clerk of the Tenth Circuit. 4 was timely submitted. See id. 4(c)(1)(B).3 We therefore proceed to the question of
whether Mr. Thomas timely filed his federal habeas petition with the district court.
B. The Timing of Mr. Thomas’s Habeas Petition
AEDPA provides a one-year limitations period for habeas corpus petitions filed by
state prisoners. 28 U.S.C.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT April 5, 2018
Elisabeth A. Shumaker Clerk of Court MITCHELL E. THOMAS,
Petitioner - Appellant, No. 17-5120 v. (D.C. No. 4:16-CV-00763-GKF-JFJ) (N.D. Oklahoma) JASON BRYANT,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
Petitioner Mitchell Thomas, an Oklahoma state prisoner proceeding pro se,1
seeks a certificate of appealability (“COA”) to challenge the district court’s dismissal
of his habeas petition brought under 28 U.S.C. § 2254. The district court dismissed
Mr. Thomas’s petition as untimely under 28 U.S.C. § 2244(d)’s one-year limitations
period. We deny Mr. Thomas’s COA request and dismiss the petition.
* 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 Federal Rule Appellate Procedure 32.1 and 10th Circuit Rule 32.1. 1 Because Mr. Thomas is pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). I. BACKGROUND
Mr. Thomas pleaded guilty to one count of sexual abuse of a minor child in
Oklahoma state court. On April 2, 2015, he was sentenced to thirty years in prison, with
the last five years suspended. He did not seek withdrawal of his plea within ten days of
sentencing, nor did he seek direct review of the conviction or sentence with the
Oklahoma Court of Criminal Appeals (“OCCA”). On March 16, 2016, almost one year
after his conviction, Mr. Thomas filed a petition for state post-conviction relief, asserting
fourteen propositions of error to support his petition, including a request for certiorari
appeal out of time. The state district court denied his petition, dismissing some of the
propositions on procedural grounds and some on the merits. It also denied his request to
file an appeal out of time because he failed to show that he was denied a direct appeal
through no fault of his own. He appealed and on November 30, 2016, the OCCA
affirmed, again denying his petitions for post-conviction relief and for certiorari appeal
out of time.
Next, Mr. Thomas filed a notice of intent to appeal the state court order in the
United States District Court for the Northern District of Oklahoma on December 12,
2016. The court noted that the “notice of appeal” was not a petition for habeas relief
and, on December 30, 2016, mailed Mr. Thomas a blank habeas corpus petition.
Mr. Thomas filed the federal habeas petition under 28 U.S.C. § 2254 on January 17,
2017. On October 24, 2017, the district court dismissed his habeas petition, finding it
untimely under 28 U.S.C. § 2244(d)(1)(A) and holding that Mr. Thomas had failed to
demonstrate he was entitled to equitable tolling of the Antiterrorism and Effective
2 Death Penalty Act (“AEDPA”) one-year limitations period or that he was excused
from that limitations period under the actual innocence exception.
Mr. Thomas subsequently filed a notice of appeal from the district court’s
order dismissing his habeas petition and denying him a COA. He alleges he filed his
appeal and mailed it through his correctional institution’s facility on November 17,
2017. The notice of appeal, however, was not docketed with the district court until
November 30, 2017.
II. ANALYSIS
AEDPA conditions a state prisoner’s right to appeal a denial of habeas relief on
the grant of a COA, which is unavailable unless the applicant demonstrates a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(A), (c)(2).
Where, as here, the district court denies a habeas petition on procedural grounds, we issue
a COA only when the prisoner shows 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, 478 (2000). Mr. Thomas cannot
make this showing, and we therefore deny his request.
A. The Timing of Mr. Thomas’s Petition for COA
Prior to reviewing the merits of Mr. Thomas’s petition for a COA, we must
determine whether it was timely. According to the Federal Rules of Appellate
Procedure, Mr. Thomas was required to file his appeal seeking a COA within thirty
days of the entry of judgment—in this case on or before November 24, 2017, because
3 November 23 was a federal holiday. See Fed. R. App. P. 4(a)(1)(A), 26(a)(1)(C). The
district court filed Mr. Thomas’s notice of appeal on November 30, 2017.2 Because
Mr. Thomas is currently incarcerated, his notice is timely if it was deposited within
his correctional institution’s internal mail system on or before the last day for filing
and is accompanied by: 1) “a declaration in compliance with 28 U.S.C. § 1746—or a
notarized statement—setting out the date of deposit and stating that first-class
postage is being prepaid;” or 2) “evidence (such as a postmark or date stamp)
showing that the notice was so deposited and that postage was prepaid.” See Id.
4(c)(1)(A)(i), (ii).
Mr. Thomas’s certificate of service is dated November 17, 2017—before the
filing deadline—but does not state that first-class postage has been prepaid. The
postmark on the envelope is November 28, 2017—after the deadline. But the
envelope has affixed to it a valid postage stamp, indicating the postage was, in fact,
prepaid. Although Mr. Thomas’s declaration complied only partially with the rule by
stating the date of deposit, but not that the postage was prepaid, we construe the
certificate of service combined with the postage stamp as evidence that the appeal
2 Although Mr. Thomas was required to petition for a COA before his appeal from the merits of the district court’s decision could be considered, “a notice of appeal constitutes a request for a certificate of appealability,” 10th Cir. R. 22.1(A), and he supplemented his appeal with a combined opening brief and an application for a COA upon prompting from the Clerk of the Tenth Circuit. 4 was timely submitted. See id. 4(c)(1)(B).3 We therefore proceed to the question of
whether Mr. Thomas timely filed his federal habeas petition with the district court.
B. The Timing of Mr. Thomas’s Habeas Petition
AEDPA provides a one-year limitations period for habeas corpus petitions filed by
state prisoners. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides four dates that
may commence the limitations period. Id. Here, only one date is implicated—“the
date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” Id. § 2244(d)(1)(A).
Mr. Thomas was sentenced on April 2, 2015. He did not seek to withdraw his
plea within ten days of sentencing, nor did he seek direct review of his conviction
and sentence in the OCCA. Therefore, because April 12 was a Sunday, Mr. Thomas’s
conviction became final under Oklahoma law on April 13, 2015. See Okla. Stat. tit.
22, ch. 18, app., R. 1.5, 2.1(B), 2.5(A), 4.2(A). Mr. Thomas’s tolling period began to run
on April 14, 2015, and any habeas petition filed after April 14, 2016, is untimely, barring
tolling principles or a showing of actual innocence. See 28 U.S.C. § 2244(d)(1); United
States v. Hurst, 322 F.3d 1256, 1261–62 (10th Cir. 2003).
3 We note that we have held that a prisoner who did not submit a certificate of service stating postage was prepaid submitted an untimely appeal. United States v. Ceballos-Martinez, 371 F.3d 713, 717 (10th Cir. 2004). Ceballos-Martinez is distinguishable from the present case because the prisoner did not submit a certificate of service at all, nor is there any evidence postage was included or prepaid. Id. Here, Mr. Thomas signed and dated a certificate of service, and the record includes the envelope, which bears a first-class postage stamp. This is evidence that the appeal of the district court’s decision was timely under the prison mailbox rule. 5 Mr. Thomas filed his habeas petition on January 17, 2017—well after the one-year
AEDPA limitations period. Thus, we can consider Mr. Thomas’s petition only if it falls
within an exception to the limitations period, either through statutory or equitable tolling,
or through actual innocence. We now consider each possibility in turn.
1. Statutory Tolling
Statutory tolling stops the running of the limitations period during the time in
which a “properly filed application for State post-conviction or other collateral review” is
pending. 28 U.S.C. § 2244(d)(2). This applies only to state petitions for post-conviction
relief “filed within the one year allowed by AEDPA.” Clark v. Oklahoma, 468 F.3d 711,
714 (10th Cir. 2006).
Mr. Thomas’s tolling period began to run on April 14, 2015, the day after his
conviction became final. Mr. Thomas filed for state post-conviction relief on March 16,
2016, and that application remained pending until November 30, 2016, when his appeal
was denied by the OCCA. This accounts for 260 days during which the time to file his
habeas petition was tolled. See Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999)
(counting both the date of the filing of the petition as well as the date of the denial of the
appeal toward the tolling period). Adding that 260 days to his original deadline of April
14, 2016, Mr. Thomas had until December 30, 2016, to file his petition under § 2254.
Mr. Thomas did not file his application for federal habeas relief until January 17, 2017.
Thus, even taking into account the 260 days of statutory tolling to which Mr. Thomas is
entitled, he still failed to meet AEDPA’s one-year statute of limitations.
6 2. Equitable Tolling
Mr. Thomas did not raise the issue of equitable tolling in the district court.
Although he did mention equitable tolling in his appeal to this court, the argument is
forfeited because “we adhere to our general rule against considering issues for the first
time on appeal.” See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012).
3. Actual Innocence
Mr. Thomas also argues he has established “actual innocence” and thus should be
excused from AEDPA’s statute of limitations. The Supreme Court has recognized narrow
circumstances under which “actual innocence” can serve as a gateway through which a
petitioner can bypass AEDPA’s statute of limitations. McQuiggin v. Perkins, 569 U.S.
383, 386 (2013). But such claims are “rare” and “appl[y] to a severely confined category
[of] cases” because the petitioner must show that “in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. at
386, 396. Importantly, actual innocence means “factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). Factual innocence
may be proven with “new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
Mr. Thomas did not present any new evidence regarding his factual innocence to
the district court. Similarly, his brief to this court argues only that the “district court
should consider the in camera evidence,” without identifying the specific pieces of that
evidence he deems relevant. Appellant’s Br. 4. The district court found that the only
7 evidence of innocence produced by Mr. Thomas was a letter from his father, expressing
his father’s personal feelings that, while he had originally believed his son was guilty, he
now believes his son is innocent. This same letter was considered during the state court
post-conviction proceedings.
The district court held that the letter was insufficient to meet Mr. Thomas’s burden
of showing by clear and convincing evidence that no reasonable juror would have found
Mr. Thomas guilty beyond a reasonable doubt. In his request for a COA to challenge the
district court’s denial of his § 2254 petition, Mr. Thomas made no mention of his father’s
letter and failed to identify any other evidence in support of his factual innocence. We
agree with the district court that even if the letter from Mr. Thomas’s father were
considered “new” evidence, it has little weight given his father’s lack of personal
knowledge and Mr. Thomas’s guilty plea and admission during the plea hearing that he
committed the acts necessary to support the conviction. Because jurists of reason would
not find it debatable that the district court was correct in ruling that Mr. Thomas has not
satisfied the “actual innocence” exception to the statute of limitations, his § 2254 petition
is untimely.
III. CONCLUSION
We DENY Mr. Thomas’s request for a COA and DISMISS this appeal.
Entered for the Court
Carolyn B. McHugh Circuit Judge