                                                         FILED
                                             United States Court of Appeals
                 UNITED STATES COURT OF APPEALS      Tenth Circuit

                             TENTH CIRCUIT                        October 2, 2018

                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

AUBREY STUART THOMAS,

       Petitioner - Appellant,
                                                       No. 18-5062
v.                                         (D.C. No. 4:18-CV-00058-JED-FHM)
                                                       (N.D. Okla.)

JASON BRYANT, Warden,

       Respondent - Appellee.



     ORDER DENYING A CERTIFICATE OF APPEALABILITY AND
                  DISMISSING THE APPEAL


Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.


      This appeal involves the dismissal of Mr. Aubrey Thomas’s habeas

petition. The district court based the dismissal on timeliness, and Mr.

Thomas requests a certificate of appealability. We deny his request for a

certificate because the district court’s dismissal of the petition is not

subject to reasonable debate.

      To appeal, Mr. Thomas must obtain a certificate of appealability. 28

U.S.C. § 2253(c)(1)(A). Because the district court relied on timeliness, Mr.

Thomas must show that the disposition was at least reasonably debatable.
See Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007). Mr. Thomas

has not made this showing.

      A habeas petitioner has one year to file a petition for a writ of habeas

corpus from a state court judgment. 28 U.S.C. § 2244(d)(1). The one-year

period ordinarily begins to run when the petitioner’s conviction becomes

final. 28 U.S.C. § 2244(d)(1)(A).

      Mr. Thomas’s conviction became final on March 7, 2016, 90 days

after the Oklahoma Court of Criminal Appeals had affirmed Mr. Thomas’s

conviction. Nonetheless, Mr. Thomas waited until January 26, 2018 (over

22 months after his conviction had become final) to file the habeas

petition.

      Because Mr. Thomas failed to file his petition within the one-year

period, he needed to either justify equitable tolling or demonstrate actual

innocence. Mr. Thomas tried to show both.

      The district court rejected the argument for equitable tolling,

reasoning that Mr. Thomas had failed to show diligent pursuit of his rights

or an “extraordinary circumstance” that prevented timely filing. See Yang

v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Lawrence v.

Florida, 549 U.S. 327, 336 (2007)). On appeal, Mr. Thomas again urges

equitable tolling, but he does not challenge the district court’s reasoning.

For example, he does not discuss the district court’s concerns with his lack



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of diligence or the absence of extraordinary circumstances that would have

prevented timely filing.

      Mr. Thomas instead argues that his constitutional rights were

violated. But a constitutional violation alone would not justify equitable

tolling. See Cole v. Warden, 768 F.3d 1150, 1158 (11th Cir. 2014) (“A

habeas petitioner is not entitled to equitable tolling simply because he

alleges constitutional violations at his trial or sentencing.”).

      The district court also rejected Mr. Thomas’s argument of actual

innocence, reasoning that his evidence was not new and would not show

innocence. On appeal, Mr. Thomas disagrees, but he does not state what

was wrong with the district court’s analysis.

                                     * * *

      Mr. Thomas fails to address the district court’s reasoning on

timeliness. We therefore

           decline to issue a certificate of appealability and

           dismiss the appeal.



                                     Entered for the Court



                                     Robert E. Bacharach
                                     Circuit Judge




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