                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                October 10, 2007
                                                     Elisabeth A. Shumaker
                               TENTH CIRCUIT             Clerk of Court



 M A RK LY N N CLA Y BR OO K ,

                 Petitioner - Appellant,                No. 06-5112
          v.                                             N.D. Okla.
 O K LA H OMA D EPA RTM EN T OF              (D.C. No. 02-CV-0724-CVE-FHM )
 CO RR ECTIONS,

                 Respondent - Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY
                        A ND DISM ISSIN G A PPLIC ATIO N


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      M ark Lynn Claybrook, a state prisoner proceeding pro se, 1 filed a 28 U.S.C.

§ 2254 petition for writ of habeas corpus. The district court denied the petition as

well as a certificate of appealability (COA). Claybrook applies for COA with this

Court. See 28 U .S.C . § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). W e deny a C OA

and dismiss his application.




      1
        Pro se pleadings are liberally construed. Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
                                      Background

         Claybrook was charged in Oklahoma state court with rape in the second

degree (Count 1), two counts of sexual battery (Counts 2 & 3) and rape by

instrument (Count 4). He was convicted by a jury of Counts 2, 3 & 4 and

sentenced to five years imprisonment on Counts 2 & 3 and fifteen years

im prisonment on C ount 4, w ith the sentences ordered to run consecutively. He

appealed from those convictions to the Oklahoma Court of Criminal Appeals

(OCCA) raising five propositions of error. 2 His convictions were affirmed on

direct appeal and his subsequent petition for rehearing was denied. See

Claybrook v. State, No. F-2000-1014 (O kla. Crim. App. M ay 11, 2001).

Claybrook did not file a petition for certiorari with the United States Supreme

Court.

         On April 20, 2004, Claybrook filed a petition for post-conviction relief in

the District Court of Tulsa County, Oklahoma. His petition was denied and the

OCCA dismissed his following appeal as untimely filed. On September 23, 2005,

Claybrook filed a second application for post-conviction relief raising five claims.

The district court noted that the first four propositions were the same as were



         2
        Claybrook claimed: (1) the State’s evidence disproved the intent element
of Count 2; (2) Count 3 was duplicitous and Claybrook was denied a unanimous
verdict because the charge set forth separate methods of committing the offense;
(3) the variance between the allegations in Count 4 and the proof at trial denied
Claybrook due process; (4) the evidence was insufficient to support the conviction
on Count 4; and (5) the State’s closing argument denied Claybrook a fair trial.

                                           -2-
raised in the first petition, and thus w ere barred by res judicata. Because his fifth

claim was not raised in his first application, the district court deemed it w aived.

The OCCA affirmed the district court’s order.

      On September 19, 2002, prior to filing his State motions for post-conviction

relief, Claybrook, represented by counsel, filed a § 2254 petition for a writ of

habeas corpus raising the same issues raised in his direct appeal. 3 On July 30,

2004, Claybrook’s counsel filed a motion to withdraw which was granted on

August 2, 2004. On M arch 23, 2006, Claybrook entered his appearance pro se

and moved to amend his habeas petition to add two new grounds for relief —

ineffective assistance of appellate counsel 4 and double jeopardy — alleging these

issues were considered and rejected by the state courts during his post-conviction

proceedings. On M ay 15, 2006, Claybrook filed a petition for writ of mandamus

with this Court seeking an order requiring the district court to rule on his motion

to amend. W e denied this request but noted that until Claybrook filed his motion

to amend, there had been no activity in the case since August 2004.


      3
        Pursuant to 28 U.S.C. § 2244(d)(1)(A), a § 2254 habeas corpus petition
must be filed within one year from “the date on which the judgment became final
by the conclusion of direct review or the expiration of the time for seeking such
review.” Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2004). Claybrook’s
conviction became final on October 23, 2001.
      4
        To the extent Claybrook is claiming his post-conviction or federal habeas
attorneys were ineffective, such claim is precluded by 28 U.S.C. §2254(i). (“The
ineffectiveness or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief in a proceeding
arising under section 2254.”).

                                          -3-
      On M ay 30, 2006, the district court issued an order denying Claybrook’s

motion to amend and his habeas petition. It concluded the motion to amend

contained new and separate claims that did not relate back to the original petition.

See Fed. R. Civ. P. 15(c). M oreover, because the new claims were filed long after

the one year statute of limitations and Claybrook made no argument for statutory

or equitable tolling, the district court determined the new claims w ere untimely

filed. 5 See 28 U.S.C. § 2244(d)(1).

      As to Claybrook’s remaining claims, the court determined they were

properly exhausted, but denied relief because the state court’s adjudication did

not “involve[] an unreasonable application of clearly established Federal law, as

determined by the Supreme Court of the United States,” or an “unreasonable

determination of the facts as presented in the State court proceeding.” See 28

U.S.C. § 2254(d).

      Claybrook filed a pro se notice of appeal and thereafter, the district court

denied a CO A. Claybrook filed a request for a COA with this Court alleging not

only that the district court erred in denying his request to amend his § 2254

petition and in its conclusions on the remainder of his claims, but also

maintaining the court’s decision was due to judicial bias.

                            Certificate of Appealability

      5
        Claybrook’s state petitions for post-conviction relief did not toll the
limitations period because they were not filed until after the limitations period
had expired. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).

                                         -4-
         A COA is a jurisdictional pre-requisite to our review. M iller-El v.

Cockrell, 537 U.S. 322, 336 (2003). W e will issue a CO A only if Claybrook

makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

court] in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted). Insofar as the district court dismissed his habeas petition on

procedural grounds, Claybrook must demonstrate both that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Id. “W here 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. W e review the district court’s factual findings for clear error and its

legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.

2001).

         In his application for a COA, Claybrook initially contends the district

court’s decision denying his § 2254 petition was the result of judicial bias derived

from its displeasure with his request for mandamus and his following letter to the

                                           -5-
Tenth Circuit. W e disagree. “[J]udicial rulings alone almost never constitute a

valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540,

555 (1994). “Thus, ‘adverse rulings cannot in themselves form the appropriate

grounds for disqualification.’” United States v. Nickl, 427 F.3d 1286, 1298 (10th

Cir. 2005) (quoting Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997)).

Claybrook’s evidence of bias consists solely of the timing and content 6 of the

district court’s adverse decision. His complaint as to timing is ironic, given that

the court was merely complying with his request to render an immediate decision

in his case. In any event, neither the timing nor the content of the court’s order is

sufficient to maintain his claim of bias.

      Claybrook next challenges the denial of his motion to amend his § 2254

petition. He relies on Rule 9(a) of the Rules Governing Habeas Corpus Cases

Under Section 2254, which provides that a delayed habeas petition can be

dismissed only if the delay prejudices the state. He also cites to Lonchar v.

Thom as, where the Court stated: “Dismissal of a first federal habeas petition is a

particularly serious matter, for that dismissal denies the petitioner the protections

of the Great W rit entirely, risking injury to an important interest in human

liberty.” 517 U.S. 314, 324 (1996). Claybrook claims the district court erred



      6
         Claybrook claims another indication of the district court’s bias was its
misquoting the testimony of the State’s expert. To the contrary, the record
reveals the expert was correctly quoted as stating the drug Rohypnol can be used
as a “preoperative anesthesia.” (R. Doc. 3 at 106.)

                                            -6-
because it denied his motion to amend without finding prejudice to the state.

Claybrook fails to recognize Rule 9(a) was deleted in 2004 because it is

unnecessary in light of the one-year statute of limitations. See Rules Governing

Habeas Corpus Cases Under Section 2254 Cases, Rule 9, Advisory Committee

Notes 2004. He also ignores Lonchar’s “clear deference to the rules that

Congress has fashioned concerning habeas.” M iller v. M arr, 141 F.3d 976, 978

(10th Cir. 1998).

      Claybrook further presents no basis for the application of statutory or

equitable tolling to his proposed additional claims except to assert he is actually

innocent. However, he offers no evidence to support this assertion that was not

presented at trial. His claim is not actual innocence, but theoretical innocence. It

rests on his allegations of insufficiency of the evidence, an issue carefully

reviewed and rejected by the state courts and the district court. Thus, the

propriety of the district court’s denial of his motion to amend is not reasonably

debatable. Nor do we find the OCCA’s decision addressing his remaining claims

contrary to or an unreasonable application of the law or facts.

      Because Claybrook has failed to make a sufficient showing that he is

entitled to a COA, we D EN Y his request and DISM ISS his application.

                                                ENTERED FOR THE COURT


                                                Terrence L. O’Brien
                                                Circuit Judge

                                          -7-
