                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 3, 2008
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT



 LARRY E. MUKES,

                 Petitioner - Appellant,                No. 08-6182
          v.                                             W.D. Okla.
 WARDEN OF JOSEPH HARP                           (D.C. No. 08-CV-00560-W)
 CORRECTIONAL CENTER,

                 Respondent - Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY
                         AND DISMISSING APPEAL


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



      This case a involves a contrived, contorted and ultimately unsuccessful

attempt to avoid the time limit Congress has imposed for filing a habeas corpus

petition. Appearing pro se, Larry Eugene Mukes wants to appeal from the

dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus and the

denial of his alternative motion for relief under Rule 60(b) of the Federal Rules of

Civil Procedure. To that end he seeks a Certificate of Appealability (COA). 1 The

district court dismissed Mukes’ habeas petition as time-barred, denied relief under

Rule 60(b), and denied a COA. We likewise deny a COA and dismiss this matter.

      1
      Because Mukes is proceeding pro se, we liberally construe his pleadings.
See Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998).
                                I. BACKGROUND

      Mukes was convicted in Oklahoma state court of first degree murder and

first degree manslaughter. On September 23, 1992, the federal district court

granted a conditional writ of habeas corpus concluding the state trial judge erred

in refusing to give a jury instruction on the burden of proof for self defense. The

court set aside the verdict and ordered the State to release Mukes from custody

unless it elected to retry him within ninety days. The State elected to retry Mukes

within ninety days and, on January 13, 1993, Mukes pled guilty to the same

charges on which he was originally convicted—first degree murder and first

degree manslaughter. He was sentenced to life imprisonment on the former and a

concurrent term of twenty-five years imprisonment on the latter. He did not file a

direct appeal.

      On August 10, 1999, Mukes filed an application for post-conviction relief

in state court. The court denied relief and the Oklahoma Court of Criminal

Appeals (OCCA) affirmed. Mukes filed two subsequent applications for post-

conviction relief in state court, both of which were denied.

      On June 2, 2008, Mukes filed a petition in federal district court seeking

relief under 28 U.S.C. § 2254 and Rule 60(b)(6). 2 The magistrate judge issued a

      2
        Under the prison mailbox rule, a prisoner’s petition is deemed filed when
the prisoner gives it to prison officials for mailing. See Fleming v. Evans, 481
F.3d 1249, 1255 n.2 (10th Cir. 2007). Mukes’ petition is file-stamped May 28,
2008, but his signature is dated June 2, 2008. The magistrate presumed Mukes
gave the petition to prison officials on the date he executed the form, thus treating

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detailed report and recommendation (R&R) suggesting Mukes’ petition be denied

because it was filed outside the one-year limitations period contained in the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 3 See 28

U.S.C. § 2244(d). The magistrate judge determined Mukes’ conviction became

final before AEDPA went into effect (April 24, 1996) and thus, he had until April

24, 1997 to file his petition. See United States v. Hurst, 322 F.3d 1256, 1260

(10th Cir. 2003) (adopting the anniversary method for calculation of the AEDPA

limitations period); Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir 2000)

(holding the one-year limitations period began to run on April 24, 1996, for

prisoners whose convictions became final before the effective date of AEDPA).

Mukes did not file his petition until June 2, 2008, over eleven years too late.

      The judge determined the limitations period was not tolled during the

period in which Mukes sought post-conviction relief in state court because he did

not seek such relief until August 10, 1999, after the limitations period had already

expired. Mukes claimed the limitations period should be equitably tolled based

on the following: he did not have an attorney to withdraw his guilty plea; he

lacked professional legal assistance within the prison; the prison law clerks were

incompetent; and he was illiterate, had diminished mental capacity and was

June 2 as the filing date. Though five days would not make a difference in the
outcome, we will likewise treat June 2 as the filing date.
      3
       The judge determined as a threshold matter that the limitations period was
applicable notwithstanding Mukes’ claim the state court lacked jurisdiction
because his guilty plea was unfair.

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ignorant of the law. The judge determined these circumstances did not warrant

equitable tolling. The judge also rejected Mukes’ claim of actual innocence

because Mukes alleged only legal innocence, not factual innocence. The judge

recommended denial of Mukes’ alternative argument seeking modification of the

conditional award of habeas relief under Rule 60(b)(6) finding such relief to be

improper.

         Mukes filed written objections to the R&R. The district court adopted the

R&R, denying Mukes’ petition as time-barred and denying relief under Rule

60(b)(6). Mukes filed a notice of intent to appeal, which the court construed as a

request for a COA and denied. Mukes renews his request for a COA with this

Court.

                                  II. DISCUSSION

         A prisoner may appeal from the denial of a motion for relief under 28

U.S.C. § 2254 or Rule 60(b), if made in a habeas proceeding, only if the district

court or this Court first issues a COA. 28 U.S.C. § 2253(c)(1)(A). We will issue

a COA only if a petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). In order to make such a showing, a

petitioner must demonstrate 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) (quotations

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omitted).

A. 18 U.S.C. § 2254

      Because the district court dismissed Mukes’ habeas petition on procedural

grounds, Mukes 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. “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. A plain procedural bar is present here and the district court was

correct to invoke it.

      Mukes’ petition is subject to the one-year AEDPA limitations period and

neither statutory nor equitable tolling is warranted. As to statutory tolling, Mukes

does not deny that he did not seek post-conviction relief in state court until after

the limitations period has already expired. Thus, his state court applications

cannot toll the limitations period under 28 U.S.C. § 2244(d)(2). See Fisher v.

Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001). As to equitable tolling, the

district court did not abuse its discretion in concluding Mukes has not shown

some extraordinary circumstance stood in the way of his timely filing. See Yang

v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (“Generally, equitable tolling

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requires a litigant to establish two elements: (1) that he has been pursuing his

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

(quotations omitted); Fleming, 481 F.3d at 1254 (reviewing decision to grant or

deny equitable tolling for abuse of discretion). The circumstances Mukes alleges

support his claim for equitable tolling are not novel and have been consistently

rejected by this Court, as the district court recognized. 4

      The court also did not abuse its discretion in rejecting Mukes’ claim of

actual innocence. Mukes does not dispute that he intentionally killed the two

victims during an argument, but claims he is innocent of first degree murder and

first degree manslaughter because he was acting in self defense. A claim of self

defense involves legal innocence rather than factual innocence. See Ellis v.

Hargett, 302 F.3d 1182, 1186 n.1 (10th Cir. 2002). Thus, it is insufficient as a

matter of law to avoid the procedural bar. See Laurson v. Leyba, 507 F.3d 1230,

1233 (10th Cir. 2007).

B. Rule 60(b)(6)

      Mukes also seeks to appeal from the district court’s rejection of his

alternative argument that the conditional award of habeas relief granted in 1992


      4
        Though not relied upon by the district court, Mukes also failed to
establish that he pursued his rights diligently. He claims his diligence is
evidenced by the multiple applications he filed for post-conviction relief in state
court. As previously discussed, all of these applications were filed after the
limitations period had expired and thus, cannot demonstrate diligence in the one-
year period itself.

                                           -6-
be modified through issuance of an unconditional writ. The district court did not

abuse its discretion in rejecting this claim. See Servants of the Paraclete v. Does,

204 F.3d 1005, 1009 (10th Cir. 2000) (“We review the district court’s denial of a

Rule 60(b) motion for abuse of discretion.”). The Supreme Court has held

“[n]either Rule 60(b), 28 U.S.C. § 2254, nor the two read together, permit a

federal habeas court to maintain a continuing supervision over a retrial conducted

pursuant to a conditional writ granted by the habeas court.” Pitchess v. Davis,

421 U.S. 482, 490 (1975). Even if modification of the conditional writ were

otherwise appropriate, Mukes’ motion was not timely. See Fed. R. Civ. P. 60(c)

(“A motion under Rule 60(b) must be made within a reasonable time . . . .”);

Sorbo v. United Parcel Serv., 432 F.3d 1169, 1178 (10th Cir. 2005) (finding the

district could did not abuse of discretion in ruling one year delay between

judgment and Rule 60(b) motion was not reasonable).

      We also DENY Mukes’ request for a COA and DISMISS this nascent

appeal.

                                               ENTERED FOR THE COURT


                                               Terrence L. O’Brien
                                               Circuit Judge




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