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

                            FOR THE TENTH CIRCUIT                             May 29, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
BRIAN KEITH HEUSTON,

      Petitioner - Appellant,

v.                                                          No. 18-5003
                                                 (D.C. No. 4:17-CV-00091-JHP-JFJ)
JASON BRYANT, Warden,                                       (N.D. Okla.)

      Respondent - Appellee.
                      _________________________________

          ORDER DENYING A CERTIFICATE OF APPEALABILITY*
                  _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

      Brian Keith Heuston seeks a Certificate of Appealability (COA) to appeal the

denial of his 28 U.S.C. § 2254 petition. We deny the COA.

                                            I

      In a 2008 jury trial in Oklahoma state court, Heuston was convicted of first

degree burglary, and assault and battery with intent to kill. Heuston was sentenced to

life imprisonment, to be followed by a consecutive 20-year sentence. Heuston filed a

direct appeal with the Oklahoma Court of Criminal Appeals (OCCA), which affirmed

his convictions on September 16, 2009. Heuston did not file a petition for certiorari

with the Supreme Court of the United States.

      *
         This order is not binding precedent except under the doctrines of law of the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.
      In March 2010—six months after the OCCA affirmed his convictions—

Heuston hired attorney Jeffrey Box to pursue state post-conviction relief. App’x at

267. Heuston alleges Box’s performance was deficient over the next two years,

during which Box did not file a petition for post-conviction relief. In April 2012,

Heuston hired attorney Charles Fox to pursue post-conviction relief. Id. at 280–81.

Heuston had trouble communicating with Fox over the ensuing year, and Fox also

failed to file a petition for post-conviction relief. Eventually, on May 15, 2013, Fox

returned all of the relevant case files to Heuston. Id. at 267, 278.

      Using those files, Heuston attempted to file a pro se petition for post-

conviction relief on April 16, 2013, but the Oklahoma state court rejected the filing

because it did not comply with local rules. Id. at 267. After pursuing a writ of

mandamus with the OCCA, id. at 195–96, on May 9, 2014, Heuston mailed a

properly formatted petition for post-conviction relief and initiated a proceeding in

Oklahoma state court, id. at 39, and it was filed on June 9, 2014. Id. at 83. Following

an evidentiary hearing, the state court denied post-conviction relief on October 23,

2015. Id. at 175–79. On appeal, the OCCA affirmed the denial of post-conviction

relief on April 21, 2016. Id. at 181–87.

      Heuston placed his 28 U.S.C. § 2254 petition in the prison mail on February

13, 2017. In the petition, he argues that he received ineffective assistance of counsel

at various stages of his trial, appeal, and post-conviction proceedings. Jason

Bryant—the warden who oversees Heuston at the James Crabtree Correctional Center

and the Respondent-Appellee in this case—moved to dismiss Heuston’s § 2254

                                            2
petition, arguing Heuston’s petition was not filed within 28 U.S.C. § 2244(d)(1)’s

one-year statute of limitations. The district court granted Bryant’s motion to dismiss,

denied Heuston a COA, and entered judgment. Id. at 331–45.

      Nine days after the district court issued its ruling, Heuston filed a notice of

appeal. Id. at 346. After this court docketed the case, Heuston moved for a limited

remand because he wished to file a motion for relief from judgment under Federal

Rule of Civil Procedure 60(b). We denied the motion for limited remand. Doc.

#10536045 (citing Burgess v. Daniels, 576 F. App’x 809, 813 (10th Cir. 2014)).

      Heuston then filed his Rule 60(b) motion in the district court. While that Rule

60(b) motion was pending before the district court, Heuston filed a combined

opening brief and application for a COA in this court. See generally Aplt. Br.

Before we could address the application for a COA on the denial of the § 2254

petition, the district court denied the Rule 60(b) motion on May 16, 2018, and denied

Heuston a COA on the issues raised in the Rule 60(b) motion.

                                           II

      To obtain a COA, Heuston must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court denied

Heuston’s claims on the merits, he “must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). As Heuston is litigating pro se, we

liberally construe his application for a COA. See Hall v. Scott, 292 F.3d 1264, 1266

(10th Cir. 2002).

                                           3
      Heuston’s application for a COA depends on whether reasonable jurists could

debate that Heuston’s § 2254 petition was untimely. In the Antiterrorism and

Effective Death Penalty Act (AEDPA), Congress set out the timeliness rules for

habeas corpus proceedings. Specifically, 28 U.S.C. § 2244(d) states:

             (1) A 1-year period of limitation shall apply to an application for a
             writ of habeas corpus by a person in custody pursuant to the
             judgment of a State court. The limitation period shall run from the
             latest of—
                    (A) the date on which the judgment became final by the
                    conclusion of direct review or the expiration of the time for
                    seeking such review;
                    (B) the date on which the impediment to filing an
                    application created by State action in violation of the
                    Constitution or laws of the United States is removed, if the
                    applicant was prevented from filing by such State action;
                    (C) the date on which the constitutional right asserted was
                    initially recognized by the Supreme Court, if the right has
                    been newly recognized by the Supreme Court and made
                    retroactively applicable to cases on collateral review; or
                    (D) the date on which the factual predicate of the claim or
                    claims presented could have been discovered through the
                    exercise of due diligence.
             (2) 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
             of limitation under this subsection.
28 U.S.C. § 2244(d).

      The district court held that Heuston’s §2254 petition was untimely under

§ 2244(d)(1)(A). App’x at 335–36. Since he did not file a petition for certiorari on

direct appeal of his convictions, his underlying conviction became final on December

15, 2009—90 days after the OCCA’s decision affirming the convictions. See Locke
                                            4
v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (holding that under § 2244(d)(1)(A) a

conviction “is not final and the one-year limitation period for filing a federal habeas

petition does not begin to run until . . . after the time for filing a petition for certiorari

with the Supreme Court has passed” (internal quotation marks omitted)). The district

court thus determined the one-year period for § 2244(d)(1)(A) ran from December

16, 2009, to December 16, 2010. Heuston did not place his § 2254 petition in the

prison mail until February 13, 2017. The district court concluded this was untimely

by more than four years, even after applying § 2244(d)(2) and removing the period

between June 9, 2014, and April 21, 2016, when Heuston was pursuing post-

conviction relief in the Oklahoma state court system.

       Aside from the § 2244(d)(1)(A) analysis, the district court also held that its

application of § 2244(d)(1)(B) would not alter the outcome. As he does in his

application for a COA, Heuston argued AEDPA’s one-year period did not actually

begin to run on December 16, 2009, but was delayed until February 28, 2013, when

the OCCA issued Logan v. State, 293 P.3d 969 (Okla. Crim. App. 2013). Heuston

contended that prior to Logan, an Oklahoma state court would likely have held that

he waived his ineffective assistance of counsel arguments, and would have dismissed

his petition for post-conviction relief. According to Heuston, this constituted a state-

created impediment and satisfied § 2244(d)(1)(B). Without addressing whether this

was a proper reading of Logan, the district court rejected this argument, stating that

“futility is not a valid justification for filing an untimely § 2254 petition.” App’x at

337 (quoting Head v. Wilson, 792 F.3d 102, 110 (D.C. Cir. 2015)). Further, the

                                              5
district court concluded that even if Logan presented an impediment to a state post-

conviction filing, Heuston’s § 2254 petition would still be untimely. The OCCA

decided Logan on February 28, 2013. Heuston did not mail a properly formatted

state post-conviction petition until May 9, 2014. App’x at 39. Thus, the district

court concluded that, even if Heuston’s Logan argument were meritorious, the period

between when Logan was decided and the filing of his state post-conviction petition

still exceeded AEDPA’s one-year time period.

      As he does in his application for a COA, Heuston also argued that the

misconduct of his attorneys, the deficiencies of the law library at his prison, and his

status as a pro se litigant who has no legal training should entitle him to equitable

tolling of AEDPA’s one-year time limit. The district court rejected these arguments.

      As the district court noted, equitable tolling is proper when the petitioner

shows there are “specific facts” to establish “(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way.” Yang v.

Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quotation omitted). Applying that

case law here, the district court first addressed Heuston’s argument that deficient

performance by Box and Fox should have equitably tolled the one-year statute of

limitations. The district court held that even if Heuston was entitled to tolling during

that 42-month period between when Heuston first contacted Box and when Fox

returned Heuston’s materials, Heuston’s § 2254 petition would still be untimely.

There were 358 days between May 15, 2013 (the date Heuston received his materials

from Fox) and May 9, 2014 (when Heuston mailed a properly formatted state post-

                                            6
conviction petition and stopped the AEDPA clock pursuant to § 2244(d)(2)). This

left Heuston seven days to file a § 2254 petition after the completion of his state post-

conviction proceedings. The OCCA denied post-conviction relief on April 21, 2016.

Heuston did not place his § 2254 petition in the prison mail until February 13, 2017.

The district court held that, even under this favorable view of the timeline, Heuston’s

§ 2254 petition was still untimely.

      The district court also concluded any deficiencies of the prison law library

apply to all inmates and are not extraordinary enough to qualify for equitable tolling.

App’x at 341–42 (citing Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)). And the

district court held that Heuston’s “lack of legal training does not support equitable

tolling.” Id. at 342 (citing Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)).

      Finally, the district court rejected Heuston’s argument that, because he may

have been experiencing an allergic reaction to medication at the time of his crimes,

he was actually innocent. The district court concluded that when a petitioner argues

he was intoxicated during the offense, he is making a “legal innocence” argument.

Id. at 342–43 (citing Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000)). The

district court held that, to meet AEDPA’s actual innocence exception, a petitioner

must argue that he is factually innocent. Id.; 5/16/18 Order denying Rule 60(b)

motion, D. Ct. Dkt. 36 at 3–4.

      Heuston asks us to grant a COA to review all of these holdings. We conclude

that reasonable jurists could not debate the correctness of any of the district court’s

rulings. Slack, 529 U.S. at 484. Thus, we deny Heuston a COA.

                                            7
                                III

We DENY Heuston’s application for a COA and dismiss this case.


                                 Entered for the Court


                                 Mary Beck Briscoe
                                 Circuit Judge




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