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

                            FOR THE TENTH CIRCUIT                            July 27, 2018
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
DARRIUS DAJUAN COHEE,

      Petitioner - Appellant,

v.                                                        No. 18-6071
                                                   (D.C. No. 5:17-CV-01384-R)
JAMES YATES,                                              (W.D. Okla.)

      Respondent - Appellee.
                      _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY *
                     _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________

      Darrius Cohee seeks a certificate of appealability (“COA”) to appeal the

district court’s denial of his 28 U.S.C. § 2254 petition. We deny a COA and dismiss

the appeal.

                                           I

      In February 2014, Cohee pled guilty in Oklahoma state court to conspiracy to

traffic a controlled dangerous substance and aggravated trafficking in illegal drugs.

He was sentenced to eighteen years’ imprisonment. Cohee did not file a direct




      *
         This order is not binding precedent, except under the doctrines of law of the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.
appeal, and his attempts to obtain relief through collateral state proceedings were

unsuccessful.

      He then filed a § 2254 habeas petition in district court. A magistrate judge

recommended that the application be dismissed as untimely. After Cohee filed

objections, the district court adopted the recommendation and dismissed Cohee’s

petition. This timely appeal followed.

                                           II

      A petitioner may not appeal the denial of habeas relief under § 2254 without a

COA. 28 U.S.C. § 2253(c)(1). We may issue a COA “only if the applicant has made

a substantial showing of the denial of a constitutional right.” § 2253(c)(2). To

satisfy this standard, Cohee must show “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) (quotation omitted).

      The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a

one-year limitations period. 28 U.S.C. § 2244(d)(1). In this case, the limitations

period began to run on the date on which Cohee’s judgment became final.

§ 2244(d)(1)(A); Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Because

Cohee did not appeal, his conviction became final ten days after the entry of

judgment, on March 6, 2014. See Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir.

2006). Cohee filed his habeas petition on December 29, 2017—over two years after



                                            2
the limitations period expired. Under § 2244(d)(1), this action is therefore untimely

absent equitable tolling. 1

       Cohee argues that he is entitled to equitable tolling based on ineffective

assistance of counsel, abuse of discretion by the trial court, and errors by the

Oklahoma Court of Criminal Appeals (“OCCA”). According to Cohee, during the

ten-day period following his guilty plea, his trial attorney ignored his calls. Cohee

contends that his attorney’s conduct constituted an improper denial of his Sixth

Amendment right to counsel during appellate proceedings, which should render his

petition timely. But as the magistrate judge properly held, Cohee failed to show that

he “diligently pursue[d]” this claim below and has not “demonstrate[d] that the

failure to timely file was caused by extraordinary circumstances beyond his control.”

Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).

       Cohee’s remaining arguments fare no better. He argues that the trial court

committed abuse of discretion, but provides little detail. See Carney v. Okla. Dep’t

of Pub. Safety, 875 F.3d 1347, 1351 (10th Cir. 2017) (“Although we construe [a pro

se litigant’s] papers liberally, we cannot make arguments for him.” (citation

omitted)). Cohee also argues that the OCCA erred by failing to engage in plain error

review of inadmissible evidence, refusing to reach his application on appeal, and

refusing to rule on his request for an evidentiary hearing. Because his claims are

time-barred, we do not address the merits of the OCCA’s decision.

       1
        Cohee is not entitled to statutory tolling because his application for post-
conviction relief was filed after the AEDPA limitations period had ended. See Fisher
v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).
                                            3
                                     III

     For the foregoing reasons, we DENY a COA and DISMISS the appeal.

Cohee’s motion to proceed in forma pauperis is GRANTED.


                                      Entered for the Court


                                      Carlos F. Lucero
                                      Circuit Judge




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