                                                                          FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS October 13, 2010
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT
                                                                    Clerk of Court


 AARON LEE BENSHOOF,

              Petitioner - Appellant,
                                                        No. 10-6207
 v.                                             (D.C. No. 5:10-CV-00381-M)
                                                      (W.D. Oklahoma)
 ROD TAVANELLO; ATTORNEY
 GENERAL OF THE STATE OF
 OKLAHOMA,

              Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Petitioner Aaron Lee Benshoof, an Oklahoma prisoner appearing pro se,

seeks a certificate of appealability (COA) to challenge the district court’s

dismissal of his application for habeas relief under 28 U.S.C. § 2254. See 28

U.S.C.§ 2253(c) (requiring COA to appeal denial of application). Because no

reasonable jurist could debate that the district court erred in denying

Mr. Benshoof’s application, we deny his request for a COA and dismiss the

appeal.

I.    BACKGROUND
      On August 11, 2003, Mr. Benshoof pleaded nolo contendere in Oklahoma

state court to having committed assault and battery with a dangerous weapon in

November 2002. On April 2, 2004, the court deferred sentencing for five years,

placing Mr. Benshoof on probation in the interim. But three years later

Mr. Benshoof violated the terms of his probation, and on April 4, 2007, the court

accelerated sentencing and imposed a five-year sentence, with the first two years

to be served in the custody of the Oklahoma Department of Corrections and the

remaining three years suspended, again subject to terms and conditions of

probation. In January 2009, in response to the State’s motion, the state district

court revoked the remaining three years of Mr. Benshoof’s sentence.

      In late October 2009, Mr. Benshoof filed in the state district court an action

for postconviction relief, which the court denied on December 29, 2009.

Mr. Benshoof then filed his application under § 2254 in the United States District

Court for the Western District of Oklahoma on April 9, 2010, alleging 11 grounds

for relief, which are somewhat repetitious and overlapping.

      The first seven grounds challenge the validity of his conviction. They

allege (1) that his trial counsel colluded with the prosecution, refused to

investigate exculpatory evidence, and coerced him into entering a plea of nolo

contendere; (2) that the State suppressed exculpatory evidence described as “a

multitude of formal documents,” R. at 13; (3) that Mr. Benshoof’s plea of nolo

contendere was “unlawfully induced by the threatening direction of collusive

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counsel,” R. at 15; (4) that his trial counsel was ineffective in various respects,

including by waiving a preliminary hearing; (5) that his counsel improperly

warned him against appealing his conviction; (6) that his conviction violated his

Second Amendment right to bear arms; and (7) that his trial counsel and the

prosecutor acted together to deny him “‘[e]qual protection of the laws,’” because

the prosecutor could not prove his “subjective intent.” R. at 21 (emphasis

omitted).

      The remaining four grounds challenge certain procedural aspects of

Mr. Benshoof’s state postconviction action. Grounds 8 and 9 assert that the state

district court denied Mr. Benshoof due process by rejecting his request for

documents at public expense and by refusing to file certain pleadings that he

submitted during the postconviction proceeding. Ground 10 alleges that the state

court denied his application for postconviction relief without making adequate

findings. And ground 11 asserts that the state court made “an unlawful secondary

ruling” that was both “collusive” and barred by res judicata. R. at 25.

      The magistrate judge recommended dismissing Mr. Benshoof’s application

as untimely as to grounds 1 through 7, and for failure to state a cognizable claim

for habeas relief as to grounds 8 through 11. After considering Mr. Benshoof’s

objections, the district court adopted the magistrate judge’s recommendation and

issued an order denying the application.

II.   DISCUSSION

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      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing 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). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. If the application was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show

“that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.” Id. “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id. After reviewing the

record, we do not think that reasonable jurists could debate the propriety of the

district court’s dismissal of Mr. Benshoof’s petition.

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA) “an

application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court” must be filed within one year of the latest of certain

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events. 28 U.S.C. § 2244(d)(1). The event relevant to this case is “the date on

which the judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). The district

court and the magistrate judge said that Mr. Benshoof’s conviction became final

on April 12, 2004, ten days after he entered his plea of nolo contendere. See

Okla. Stat. tit. 22, ch. 18, App., Rule 4.2 (2003) (defendant cannot appeal

conviction on a plea of guilty or nolo contendere unless he has filed an

application to withdraw his plea within 10 days after judgment). One could

argue, however, that Mr. Benshoof’s conviction did not become final for another

three years, on April 14, 2007, ten days after sentence was imposed. See

Shoemake v. Hightower, 37 F. App’x 976 (10th Cir. 2002) (for purposes of

§ 2244(d)(1)(A), conviction became final ten days after the defendant’s

sentencing at the acceleration hearing). But even if we use the later date, the

§ 2254 application filed in April 2010 was untimely with respect to

Mr. Benshoof’s first seven claims—those challenging the validity of his

conviction.

      Statutory tolling does not alter this result. Although the one-year limitation

period is tolled during the time in which a “properly filed application for State

post-conviction or other collateral review with respect to the pertinent judgment

or claim is pending,” 28 U.S.C. § 2244(d)(2), Mr. Benshoof’s state postconviction

action was not filed until October 2009, more than one year after his § 2254

                                         -5-
application was due. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006)

(“Only state petitions for post-conviction relief filed within the one year allowed

by AEDPA will toll the statute of limitations.”).

      Nor has Mr. Benshoof shown that he is entitled to equitable tolling.

Although “the timeliness provision in the federal habeas corpus statute is subject

to equitable tolling,” Holland v. Florida, 130 S. Ct. 2549, 2554 (2010),

Mr. Benshoof is entitled to equitable tolling only if he demonstrates “(1) that he

has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.” Id. at 2563 (internal

quotation marks omitted). Mr. Benshoof argues on appeal, as he did below, that

his claims were equitably tolled because his attorney warned him against

appealing, but he fails to explain how that warning delayed his postconviction

claims. He appears to believe that all he needs to show is that his attorney’s

misconduct was egregious, apparently relying on the Supreme Court’s statement

that “professional misconduct . . . could . . . amount to egregious behavior and

create an extraordinary circumstance that warrants equitable tolling.” Id. at 2563.

This statement, however, was directed at equitable-tolling claims based on

attorney misconduct that delayed the filing of a habeas application. See id. at

2563-64. Mr. Benshoof does not claim such delay. As stated above, he fails to

explain how his counsel’s warning precluded timely filing of his application.




                                         -6-
       Finally, Mr. Benshoof’s remaining four claims—those challenging certain

procedural aspects of his postconviction action in state court—are not cognizable

under § 2254. See Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993)

(defendant’s claim challenging Oklahoma’s postconviction procedures “fail[s] to

state a federal constitutional claim cognizable in a federal habeas proceeding”).

Thus, the district court was clearly correct in dismissing those claims.

III.   CONCLUSION

       Because no reasonable jurist could debate whether Mr. Benshoof’s

application under § 2254 ought to have been granted, we DENY his request for a

COA and DISMISS his application. We DENY all his pending motions.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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