                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                         UNITED STATES COURT OF APPEALS October 12, 2011

                                    TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                          Clerk of Court


 JOHN DEAN LOCKETT, JR.,

           Petitioner-Appellant,

 v.                                                            No. 11-6185
                                                       (D.C. No. 5:11-CV-00184-R)
 JAMES RUDEK, Warden; ATTORNEY                                (W. D. Okla.)
 GENERAL OF THE STATE OF
 OKLAHOMA,

           Respondents-Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.



       John Dean Lockett, Jr., an Oklahoma state prisoner appearing pro se, seeks a

certificate of appealability (COA) in order to challenge the district court’s denial of his 28

U.S.C. § 2254 application for federal habeas relief. Because Lockett has failed to satisfy

the standards for the issuance of a COA, we deny his request and dismiss the matter.

                                              I

       In late 1998, Lockett was arrested and charged in the District Court of Payne



       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
County, Oklahoma, with robbery in the first degree, after former conviction of two

felonies, in violation of Okla. Stat. tit. 21, §§ 791 (Robbery defined) and 797 (Degrees of

robbery). The case proceeded to trial in July 1999, where a jury convicted Lockett of the

charged offense. Lockett was sentenced, in accordance with the jury’s verdict, to fifty

years’ imprisonment.

        Lockett filed a direct appeal asserting five propositions of error, including that he

was denied the right to conduct his own defense and was forced against his will to accept

the services of a state-appointed public defender. On June 13, 2000, the Oklahoma Court

of Criminal Appeals (OCCA) issued a summary opinion affirming Lockett’s conviction

and sentence. Lockett did not file a petition for writ of certiorari with the United States

Supreme Court.

        On August 19, 2003, Lockett filed a pro se application for post-conviction relief in

state district court. Lockett’s application was denied on September 26, 2003. Lockett did

not appeal to the OCCA.

        Lockett filed a second pro se application for state post-conviction relief in 2010.1

The state district court denied Lockett’s application on October 15, 2010. Lockett

appealed to the OCCA, which affirmed the state district court’s ruling on January 27,

2011.

        1
         The precise date of Lockett’s filing is not clear. According to the record on
appeal, Lockett filed a “PETITION FOR MOTION HEARING” in state district court on
May 14, 2010. ROA, Vol. 1 at 27. Lockett subsequently filed a series of pleadings in
state district court, including a letter, conclusions of facts and memorandum of law, and a
petition for writ of mandamus. Id.

                                               2
       On February 22, 2011, Lockett initiated these federal habeas proceedings by filing

a pro se petition pursuant to 28 U.S.C. § 2254. The petition asserted three grounds for

relief. First, the petition alleged that Lockett had been convicted of the “non-existant [sic]

non-available criminal offense” of “strong arm robbery,” and that, consequently, the state

trial court could neither “statutorily nor constitutionally impose[] or assess[]” a penalty of

imprisonment against Lockett. ROA, Vol. 1 at 7. Second, the petition alleged that

Lockett “was forced to trial with counsel that labored under a conflict of interest requiring

his potential testimony against his client.” Id. Third, the petition alleged that Lockett was

“deprived of the right to self-representation.” Id. at 8.

       Respondent moved to dismiss Lockett’s petition as time-barred. On June 14,

2011, the magistrate judge assigned to the case issued a report and recommendation

recommending that respondent’s motion be granted and the petition dismissed as

untimely. In support, the magistrate judge began by noting that under 28 U.S.C.

§ 2244(d)(1)(A), Lockett had one year from the date his conviction became final in which

to file an application for federal habeas relief. The magistrate judge concluded that

Lockett’s conviction became final on September 11, 2000, when the ninety-day time

period for filing a petition for writ of certiorari with the Supreme Court expired. The

magistrate judge in turn concluded that the “one-year statute of limitations period began

to run the following day, on September 12, 2000, and expired one year later, on

September 12, 2001.” Id. at 50. Although Lockett argued that the one-year limitations

period was inapplicable because he was convicted of a non-existent offense, thereby

                                               3
implicating the subject matter jurisdiction of the state trial court, the magistrate judge

disagreed, noting that neither § 2244(d)(1)(A) nor federal case law recognized such an

exception. The magistrate judge further concluded that Lockett’s efforts at state post-

conviction relief did nothing to toll the limitations period because they were filed after the

one-year limitations period had expired. Lastly, the magistrate judge concluded that

Lockett was not entitled to equitable tolling of the limitations period because he

“offer[ed] no explanation for his lack of diligence in pursuing his federal claims

following the . . . affirmance of his conviction and sentence on direct appeal,” id. at 54,

and because Lockett “failed to present a substantial claim of actual innocence,” id. at 56.

       Lockett filed an objection to the report and recommendation asserting that he was

entitled to equitable tolling on the grounds of actual innocence. In support, Lockett

argued that the OCCA, in affirming his conviction and sentence on direct appeal,

misstated that he was convicted of robbery in the first degree, after former conviction of

two felonies, when in fact the evidence actually established that he was charged with and

convicted of the “nonstatutory offense of . . . strong arm robbery . . . .” Id. at 57. Lockett

attached to his objection copies of the following documents from his state court

proceedings: (a) a copy of the judgment and sentence entered by the trial court, which

described the count of conviction as “STRONG ARM ROBBERY,” but cited

Oklahoma’s “Robbery defined” statute, Okla. Stat. tit. 21, § 791, as the statute of

conviction, id. at 59; (b) a copy of the verdict form describing the charge at issue as

“STRONG ARM ROBBERY,” id. at 84; (c) a copy of one of the jury instructions from

                                               4
his trial stating that the “proper punishment” under Oklahoma law “for Strong Arm

Robbery after two previous convictions [wa]s imprisonment in the State penitentiary for a

term of not less than 20 years,” id. at 85; and (d) a copy of the second stage verdict form

stating, in pertinent part, “[w]e, the jury, . . . find as follows: [t]he defendant is guilty of

the crime of strong arm robbery after two previous convictions and fix punishment at 50

yrs ,” id. at 86. Lockett also argued in his objection that he was “actually innocent of

th[e] charge of strong arm robbery” because he “stole [the] victim’s car.” Id. at 58. As

support for this argument, Lockett attached to his objection selected pages from the

transcript of his preliminary hearing in which the alleged victim testified that, while he

was stopped to use an automated teller machine, Lockett approached him, hit him twice,

and then stole his car. Id. at 71. In Lockett’s view, this testimony established that he was

guilty “of car theft,” id. at 90, but not “robbery in the first degree,” id. at 89, or “strong

arm robbery,” id. at 90.

       On July 5, 2011, the district court issued an order adopting the report and

recommendation and granting respondent’s motion to dismiss. Id. at 92. In doing so, the

district court rejected Lockett’s argument that he was entitled to equitable tolling of the

applicable one-year statute of limitations:

               [Lockett] contends that throughout his state-court criminal
       proceedings that reference was made to “strong arm robbery,” which he
       contends is not a recognized crime in the state. From the parties’
       submissions, it is apparent that [Lockett] was charged and convicted of
       violating Okla. Stat. tit. 22 § 791, which is “Robbery defined.” It is also
       clear to the Court, despite [Lockett]’s contentions that he merely stole a car,
       that as the jury found, he indeed violated the provisions of § 791. Robbery

                                                5
       under § 791 is defined as “wrongful taking of personal property in the
       possession of another, from his person or immediate presence, and against
       his will, accomplished by means of force or fear.” From the preliminary
       hearing transcript [Lockett] provided, the victim testified that while he was
       getting back into his vehicle, which he had left running in the parking lot of
       a convenience store, that [Lockett] tapped him on the shoulder and asked
       whose car it was. When the victim responded mine, [Lockett] punched him
       in the face. Although the victim attempted to gain control over the driver’s
       seat in the car, [Lockett] ultimately took control of the car and drove off.
       He and his brother were later arrested in the vehicle. Accordingly, although
       the term “strong arm” robbery was used, and although that term does not
       appear in the Oklahoma statutes, [Lockett] has failed to present evidence to
       the Court that the elements of the crime for which he was charged and
       convicted did not comport with the law of the State. As such, the Court
       finds no basis for [Lockett]’s actual innocence claim, and he is not entitled
       to equitable tolling of the statute of limitations.

Id. at 92. The district court also, in that same order, concluded that Lockett was “not

entitled to a certificate of appealability, because he ha[d] not made a substantial showing

of the denial of a constitutional right.” Id. at 92-93. Judgment was entered in the case

that same day.

       On July 18, 2011, Lockett filed a notice of intent to appeal. He has since filed an

application for COA with this court, as well as an opening brief, and a motion to proceed

on appeal without prepayment of costs or fees.

                                             II

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). In other words, a state prisoner may appeal from the denial of federal habeas

relief under 28 U.S.C. § 2254 only if the district court or this court first issues a COA. 28

U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the applicant has made a


                                              6
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In

order to make that showing, a prisoner must demonstrate “that 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, 529 U.S. 473, 484 (2000) (internal quotation marks

omitted). If the district court denied the “habeas petition on procedural grounds without

reaching the prisoner’s underlying constitutional claim,” the prisoner must also, in order

to obtain a COA, demonstrate “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.” Id.

       The magistrate judge in this case, and in turn the district court, by way of its

adoption of the report and recommendation, correctly outlined the controlling standards

for assessing the timeliness of a petition for writ of habeas corpus filed pursuant to §

2254. The one-year limitations period generally starts running from “the date on which

the [state court] judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Although

the one-year limitations period is subject to equitable tolling, see Holland v. Florida, 130

S.Ct. 2549, 2560, 2562 (2010), we have held that equitable tolling is warranted only “in

rare and exceptional circumstances,” Gibson v. Klinger, 232 F.3d 799, 8088 (10th Cir.

2000) (internal quotation marks omitted). One such circumstance is if the “prisoner is

actually innocent . . . .” Id. When a habeas petitioner seeks equitable tolling on actual

                                               7
innocence grounds, he must “show that a constitutional violation has probably resulted in

the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327

(1995). “To establish the requisite probability, the petitioner must show that it is more

likely than not that no reasonable juror would have convicted him in the light of . . . new

evidence [of actual innocence],” id., “that was either excluded or unavailable at trial,” id.

at 328.

          After reviewing Lockett’s application for COA and the record on appeal, we

conclude he has failed to establish that reasonable jurists would find it debatable whether

the district court erred in concluding that Lockett was not entitled to equitable tolling of

the one-year limitations period. As the district court correctly noted, Lockett’s assertion

of actual innocence rested not on any evidence of innocence that was excluded or

unavailable at the time of trial, but rather upon a technicality, i.e., the state trial court’s

characterization of the charge at issue as “strong arm robbery,” rather than “robbery in the

first degree.” We agree with the district court that the state trial court’s use of the term

“strong arm robbery” had no impact on the propriety of the charge and conviction at

issue. We further agree with the district court that the preliminary hearing testimony

provided by Lockett, the truth of which Lockett concedes, establishes that Lockett was

guilty of violating the Oklahoma robbery statutes he was charged with and convicted of

violating, Okla. Stat. Ann. tit. 21, §§ 791 and 797.




                                                8
      The application for COA is DENIED and the appeal is DISMISSED. The motion

to proceed on appeal without prepayment of costs or fees is DENIED.

                                       Entered for the Court



                                       Mary Beck Briscoe
                                       Chief Judge




                                          9
