                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 1, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT



 CECIL R. LAWRENCE,

                 Petitioner-Appellant,                  No. 10-7076
          v.                                           (E.D. of Okla.)
 MIKE MULLIN, Warden,                       (D.C. No. 6:-09-00349-RAW-KEW)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges. **


      Cecil Ray Lawrence, an Oklahoma state prisoner, seeks a certificate of

appealability (COA) to enable him to appeal the district court’s dismissal of his

28 U.S.C. § 2254 petition for a writ of habeas corpus as time-barred. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we construe Lawrence’s

filings liberally because he is proceeding pro se. See Hall v. Bellmon, 935 F.2d

1106, 1110 & n.3 (10th Cir. 1991). Nonetheless, no reasonable jurist could


      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
conclude the district court’s dismissal was incorrect. See Slack v. McDaniel, 529

U.S. 473, 484 (2000). Accordingly, we DENY the application for a COA and

DISMISS the appeal.

                                  I. Background

      On July 28, 2005, Lawrence pleaded guilty to two counts relating to the

possession of cocaine and phencyclidine with intent to distribute. For these

crimes, he was sentenced to a total of 16 years’ imprisonment. On May 10, 2006,

Lawrence filed his first application for post-conviction relief in the Carter County

District Court, alleging ineffective assistance of counsel. The court denied

Lawrence’s application, and the Oklahoma Court of Criminal Appeals (OCCA)

affirmed the denial on December 5, 2006.

      On October 15, 2007, Lawrence learned that Kevin McIntire, a drug task

force investigator in Carter County, was indicted for stealing evidence in drug

cases he had investigated. On March 30, 2009, Lawrence filed a second

application for post-conviction relief in the Carter County District Court,

contending this newly-discovered evidence provided a sufficient reason to allow

him to obtain relief. Once again, the district court denied his application, and the

OCCA affirmed the denial on June 22, 2009. He then filed a petition under 28

U.S.C. § 2254 for a writ of habeas corpus on September 17, 2009, which the

federal district court dismissed as time-barred.




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                                    II. Analysis

      The Antiterrorism and Effective Death Penalty Act conditions a petitioner’s

right to appeal a denial of habeas relief under § 2254 upon a grant of a COA.

28 U.S.C. § 2253(c)(1)(A). A COA requires the applicant to demonstrate a

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

the district court denies a habeas petition on procedural grounds, a COA should

issue only when the prisoner shows 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.” Slack, 529 U.S. at 484. Lawrence does not satisfy this

standard.

      Section 2244(d)(1) establishes a one-year statute of limitations for the

filing of a habeas petition. Relevant here are subsections (A), which commences

the limitations period on “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review,”

and (D), which commences the limitations period on “the date on which the

factual predicate of the claim or claims presented could have been discovered

through the exercise of due diligence.” 28 U.S.C. §§ 2244(d)(1)(A), (D).

      Under Oklahoma law, a conviction pursuant to a guilty plea becomes final

10 days after entry of judgment or sentence, unless the convicted person moves to

withdraw the plea within these 10 days. Fisher v. Gibson, 262 F.3d 1135, 1142

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(10th Cir. 2001) (citing Oklahoma rules for direct appeal of a conviction entered

under a guilty plea). Thus, the district court correctly determined Lawrence’s

statutory limitations period expired on August 7, 2006—one year and 10 days

after his conviction under a guilty plea. The district court also correctly

determined that Lawrence’s first post-conviction proceeding extended the

limitations deadline by 209 days until March 4, 2007, but that his second post-

conviction proceeding provided no statutory tolling because it was filed after the

relevant limitations period had expired.

      Lawrence contends he discovered a factual predicate of his claims under 28

U.S.C. § 2244(d) on October 15, 2007, the date he learned of McIntire’s

conviction. Both the OCCA and the district court concluded Lawrence failed to

demonstrate his allegations concerning the investigator could serve as the factual

predicate for post-conviction relief. Even if both courts were wrong, Lawrence’s

claims would still be time-barred. Since § 2244(d)(1)(D) sets a 1-year time

limitation after the discovery of a factual predicate, Lawrence’s statutory

limitation period would still have expired in October 2008, but he did not file his

habeas petition until September 2009. Lawrence’s second post-conviction

proceeding in the Oklahoma state courts could not have provided statutory tolling

because it was filed in March 2009, also after the expiration of the hypothetically-

extended limitations period.

      Therefore, no reasonable jurist could conclude the dismissal was incorrect.

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                        III. Conclusion

For the foregoing reasons, we DENY Lawrence’s request for a COA.

                                     ENTERED FOR THE COURT

                                     Timothy M. Tymkovich
                                     Circuit Judge




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