                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS                April 3, 2008
                                                                Elisabeth A. Shumaker
                                  TENTH CIRCUIT                     Clerk of Court



 JOHN GLEN BOHON,

                 Petitioner-Appellant,                  No. 07-5169
          v.                                   Northern District of Oklahoma
 STATE OF OKLAHOMA and BRUCE               (D.C. No. 4:07-CV-00349-CVE-FHM)
 HOWARD, Warden,

                 Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON and McCONNELL, Circuit Judges.


      John Glen Bohon, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Bohon has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                 I. BACKGROUND

      On May 23, 2003, Mr. Bohon was convicted in Oklahoma state court on

one count of lewd molestation. He was sentenced to six years’ imprisonment.

Mr. Bohon timely appealed his conviction to the Oklahoma Criminal Court of

Appeals (OCCA), which unanimously affirmed on May 27, 2004. Mr. Bohon

never sought certiorari in the United States Supreme Court. Instead, on December

1, 2003, he filed a motion for judicial review of his sentence pursuant to Okla.

Stat. tit. 22, § 982a. The state district court denied review on December 18, 2003.

Thereafter, Mr. Bohon filed a motion to modify his sentence on July 23, 2004; it

was denied on April 29, 2005. More than a year later, on September 1, 2006, he

filed an application for post-conviction relief in state district court. The

application was denied on March 16, 2007, and the OCCA affirmed the district

court’s denial of relief on May 9, 2007. Finally, on June 20, 2007, Mr. Bohon

filed a petition under 28 U.S.C. § 2254 in federal court alleging numerous

violations of his constitutional rights. The district court denied his petition as

time-barred under 28 U.S.C. § 2244. In his application for a COA, Mr. Bohon

challenges that determination.

                                 II. DISCUSSION

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

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

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

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

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . 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). Where, as here, the district court denies habeas relief

on procedural grounds, the petitioner must demonstrate that “jurists of reason of

reason would find it debatable whether the district court was correct in its

procedural ruling.” Id. at 478.

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

imposes a one-year statute of limitations on § 2254 habeas petitions, running from

the latest of (1) the date the judgment of conviction becomes final, (2) the date on

which an “impediment created by the state in violation of the Constitution or laws

of the United States is removed,” (3) the date on which the Supreme Court first

recognizes the constitutional right asserted, or (4) “the date on which the factual

predicate of the . . . claims presented could have been discovered through . . . due

diligence.” 28 U.S.C. § 2244(d). Because Mr. Bohon failed to file a petition for

writ of certiorari in the United States Supreme Court, his conviction became final

on August 25, 2004, ninety days after OCCA denied relief on direct appeal. See

Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Thus, absent statutory or




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equitable tolling, Mr. Bohon had one year, from August 25, 2004, to August 25,

2005, to file his habeas petition. He waited, however, until June 20, 2007.

      Mr. Bohon’s petition is not eligible for statutory tolling. “The time during

which a properly filed application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim is pending shall not be

counted toward any period limitation.” 28 U.S.C. § 2244(d)(2). However, even

disregarding the time during which each of Mr. Bohon’s post-conviction

proceedings was under submission, more than a year passed between the date his

conviction became final and the date he filed his petition for habeas relief in

federal district court. Indeed, more than a year elapsed between the date his

conviction became final and the date he filed his first petition for post-conviction

relief in state court. 1 Statutory tolling therefore does not make his federal petition

timely.

      We also agree with the district court that Mr. Bohon is not eligible for

equitable tolling. A petitioner is eligible for equitable tolling only when he

“diligently pursues his claims and demonstrates that the failure to timely file was


      1
        Although Mr. Bohon filed motions for sentence modification before the
limitations deadline, relief under § 982a is discretionary and a denial of relief is
not appealable. Therefore, these motions do not constitute an application for
post-conviction relief, and they do not toll the limitations period. See Heinken v.
Higgens, 175 Fed. App’x 986, 988 n. 2 (10th Cir. 2006); accord Bridges v.
Johnson, 284 F.3d 1201, 1203–04 (11th Cir. 2002). We also note that even if Mr.
Bohon’s §982a motions did toll the limitations period for the time that they were
pending, his § 2254 petition would still be untimely.

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caused by extraordinary circumstances beyond his control.” March v. Soares, 223

F.3d 1217, 1220 (10th Cir. 2000). Mr. Bohon fails to claim, let alone

demonstrate, extraordinary circumstances beyond his control that prevented his

filing of a timely petition. Instead, he argues that he is actually innocent and that

the procedural bar should be excused to prevent a fundamental miscarriage of

justice. To prevail on such a claim, Mr. Bohon must “support his allegations of

constitutional error 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. Bohon’s claim of actual innocence is unsupported by any new

reliable evidence. Instead, he relies on vague and conclusory statements and on

excerpts from the trial transcript to support his assertion of actual innocence.

These are insufficient to demonstrate a fundamental miscarriage of justice and

excuse Mr. Bohon’s failure to file a timely petition.

                                III. CONCLUSION

      Accordingly, we DENY Mr. Bohon’s request for a COA and DISMISS this

appeal.

                                                Entered for the Court,

                                                Michael W. McConnell
                                                Circuit Judge




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