                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS August 8, 2013

                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 JUSTIN RYAN LONG,

              Petitioner - Appellant,                   No. 13-6083
                                                 (D.C. No. 5:12-CV-00444-R)
 v.                                                   (W.D. Oklahoma)
 CHAD MILLER; ATTORNEY
 GENERAL OF THE STATE OF
 OKLAHOMA,

              Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Justin Ryan Long, an Oklahoma state prisoner, filed what he styled a

“Petition” challenging the district court’s denial of his application for relief under

28 U.S.C. § 2254 The district court denied the Petition. Long now seeks a

certificate of appealability (COA) from this court so that he may appeal the

district court’s decision. We deny a COA and dismiss the appeal.

      On November 28, 2001, Long was convicted in Oklahoma state court of

murder and sentenced to life without parole. The Oklahoma Court of Criminal

Appeals (OCCA) affirmed, and the United States Supreme Court denied

certiorari. See Long v. State, 74 P.3d 105 (Okla. Crim. App. 2003), cert. denied,
540 U.S. 1163 (2004). Long unsuccessfully sought state postconviction relief,

and filed two applications under 28 U.S.C. § 2254, which were dismissed without

prejudice for failure to exhaust state remedies and failure to pay the filing fee.

      On July 18, 2007, Long filed a third § 2254 application in the United States

District Court for the Western District of Oklahoma. The district court dismissed

the application as untimely under the Antiterrorism and Effective Death Penalty

Act (AEDPA), see 28 U.S.C. § 2244(d)(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.”), and we affirmed, see Long v.

Peterson, 291 F. App’x 209 (10th Cir. 2008).

      On April 19, 2012, Long filed his Petition, asking the district court to

reconsider the dismissal of his third § 2254 application. He argued generally that

AEDPA is unconstitutional to the extent that it precludes applicants from

vindicating their constitutional rights, and in particular that the application of

AEDPA’s statute of limitations in his case violated his Fifth, Sixth, and

Fourteenth Amendment rights because it barred him from asserting his claim of

ineffective assistance of counsel. Long also contended that the court should not

have dismissed his application as untimely because he had timely filed two prior

§ 2254 applications.

      The district court held that the Petition was not a second or successive

habeas petition because it challenged the district court’s prior procedural ruling

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and not its disposition on the merits. See Gonzalez v. Crosby, 545 U.S. 524,

535–36 (2005) (“Because petitioner’s Rule 60(b) motion challenge[d] only the

District Court’s previous ruling on the AEDPA statute of limitations, it is not the

equivalent of a successive habeas petition”). But it denied the Petition because

AEDPA’s statute of limitations does not violate the Constitution. Long cannot

appeal the district court’s decision unless we first grant a COA. See Spitznas v.

Boone, 464 F.3d 1213, 1217–18 (10th Cir. 2006).

      We deny a COA because reasonable jurists would not debate the

correctness of the district court’s ruling. The essence of Long’s argument is that

AEDPA’s limitation period cannot deny him the right to obtain habeas-corpus

relief. But he provides no authority, nor do we know of any, suggesting that the

Fifth, Sixth, or Fourteenth Amendments in themselves require a habeas remedy.

The constitutional basis for habeas relief is the Suspension Clause, which states

that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended . . . .”

U.S. Const. art. 1, § 9, cl. 2. But the claim that AEDPA’s limitations period

violates the Suspension Clause has been squarely rejected by this court. We have

held that although there may be circumstances when the limitations period “raises

serious constitutional questions and possibly renders the habeas remedy

inadequate and ineffective” in violation of the Suspension Clause, it can properly

be applied absent grounds for equitable tolling or a showing of actual innocence

or incompetence. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998); see

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Wyzykowski v. Dep’t of Corr., 226 F.3d 1213, 1217 (11th Cir. 2000) (“[W]e

readily conclude that, as a general matter, the § 2244(d) limitation period does not

render the collateral relief ineffective or inadequate to test the legality of

detention, and therefore is not an unconstitutional suspension of the writ of

habeas corpus.”); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (“We join

the other circuits that have considered this issue and hold that AEDPA’s one-year

limitation does not constitute a per se violation of the Suspension Clause.”);

Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 113–14 (2d Cir. 2000)

(“[B]ecause AEDPA’s one-year statute of limitations leaves habeas petitioners

with some reasonable opportunity to have their claims heard on the merits, the

limitations period does not render the habeas remedy inadequate or ineffective to

test the legality of detention, and therefore does not per se constitute an

unconstitutional suspension of the writ of habeas corpus.” (internal quotation

marks omitted)); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (per curiam)

(“The 1-year limitations period of the AEDPA does not violate the Suspension

Clause unless it renders the habeas remedy inadequate or ineffective to test the

legality of detention. [Defendant] has not shown how the limitations period made

the habeas remedy inadequate or ineffective for him, since nothing prevented him

from filing a petition before the limitations period expired.” (footnote and internal

quotation marks omitted)).




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      Long has not shown that AEDPA rendered his right to habeas relief

inadequate or ineffective, nor has he shown grounds for equitable tolling or his

actual innocence or incompetence. Further, even if his prior dismissed

applications were timely, they did not license him to delay filing an application

that he would pursue to judgment.

      We DENY a COA and DISMISS the appeal. Long’s motion to proceed in

forma pauperis is DENIED.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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